Ex Parte Moore et al

Patent Trial and Appeal Board

Jul 31, 2017

11964402 (P.T.A.B. Jul. 31, 2017)

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.
11/964,402 12/26/2007 IAN MOORE 57.0820-US-NP 1750
28116 7590
WestemGeco L.L.C.
10001 Richmond Avenue
IP Administration Center of Excellence
Houston, TX 77042
EXAMINER
MURPHY, DANIEL L
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
08/02/2017 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):
U S Docketing @ sib. 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 IAN MOORE, DAVID E. NICHOLS, and CLEMENT ROSTOV
Appeal 2015-003845
Application 11/964,402
Technology Center 3600
Before JILL D. HILL, LISA M. GUIJT, and ERIC C. JESCHKE,
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—26. We have jurisdiction under 35 U.S.C.
§ 6(b).1’2
We AFFIRM-IN-PART and enter a NEW GROUND OF
REJECTION of claims 1—26 pursuant to 37 C.F.R. § 41.50(b).
1 Appellants identify the real party in interest as WestemGeco, L.L.C.
Appeal Br. 3.
2 Appeal is taken from the Final Office Action dated March 17, 2014
(“Final Act.”).
Appeal 2015-003845
Application 11/964,402
CLAIMED SUBJECT MATTER
Claims 1, 12, 21, and 26, reproduced below, are the independent
claims on appeal.
1. A method comprising:
obtaining seismic data representing measurements acquired by
seismic sensors of a composite seismic signal produced by firings of
multiple seismic sources;
associating models with linear operators, at least one of the
models describing reflections from geology associated with the
composite seismic signal and the linear operators describing wave
propagation;
characterizing the seismic data as a function of the models and
the associated linear operators;
processing the seismic data on a processor-based machine to
jointly determine the models based on the function; and
based on the determined models, generating a dataset
representing a component of the composite seismic signal attributable
to one of the seismic sources and not being attributable to any of the
other seismic sources.
12. A system comprising:
an interface to receive seismic data representing measurements
acquired by seismic sensors of a composite seismic signal produced by
firings of multiple seismic sources; and
a processor to process the seismic data to associate linear
operators describing wave propagation with models, characterize the
seismic data as a function of the models and the associated linear
operators, jointly determine the models based on the functions and
based on the determined models, generate at least one dataset;
wherein
2
Appeal 2015-003845
Application 11/964,402
at least one of the models describes reflections from
a geology associated with the composite seismic signal,
and
the at least one dataset represents a component of
the composite seismic signal attributable to one of the
seismic sources and not being attributable to any of the
other seismic sources.
21. An article comprising a computer accessible storage medium
containing instructions that when executed by a processor-based system
cause the processor-based system to:
receive seismic data representing measurements acquired by
seismic sensors of a composite seismic signal produced by firings of
multiple seismic sources; and
process the seismic data to associate linear operators describing
wave propagations with models, characterize the seismic data as a
function of the models and the associated linear operators, jointly
determine the models based on the function and based on the
determined models, generate at lest one dataset;
wherein
at least one of the models describes reflections from
a geology associated with the composite seismic signal,
and
the at least one dataset represents a component of
the composite seismic signal attributable to one of the
seismic sources and not being attributable to any of the
other seismic sources.
26. A method comprising:
receiving data representing measurements of energy produced by
a plurality of sources;
3
Appeal 2015-003845
Application 11/964,402
associating models with linear operators, wherein
at least one of the models describes reflections from geology
associated with the energy, and
the linear operators describe wave propagation;
characterizing the seismic data as a function of the models and
the associated linear operators;
processing the characterized data on a processor-based machine
to jointly determine the models based at least in part on the
characterization; and
generating a dataset representing a component of the energy
attributable to one of the seismic sources, wherein the generation of the
dataset is based at least in part on the models.
REJECTIONS
I. Claims 1—3, 10-14, 19, 20, and 26 stand rejected under 35
U.S.C. § 102(b) as anticipated by Sallas et al. (US 5,719,821; issued Feb. 17,
1998).
II. Claims 4—6 and 15 stand rejected under 35 U.S.C. §103(a) as
unpatentable over Sallas and Herkenhoff et al. (US 2005/0128874 Al;
published June 16, 2005).
III. Claim 7 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Sallas and Devaney (US 4,648,039; issued Mar. 3, 1987).
IV. Claims 8, 9, and 16 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Sallas and Wood (US 6,691,039 Bl; issued Feb. 10,
2004).
V. Claims 17 and 18 stand rejected under 35 U.S.C. §103(a) as
4
Appeal 2015-003845
Application 11/964,402
unpatentable over Sallas and Falkenberg (US 2007/0091719 Al; published
Apr. 26, 2007).
VI. Claims 21—23 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Sallas and Jeffryes (US 7,050,356 B2; issued May 23,
2006).
VII. Claim 24 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Sallas, Jeffryes, and Herkenhoff.
VIII. Claim 25 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Sallas, and Wood.
ANALYSIS
Rejection I
Regarding independent claim 1, the Examiner finds, inter alia, that
Sahas discloses “associating models with linear operators, at least one of the
models describing reflections from geology associated with the composite
seismic signal and the linear operators describing wave propagation.” Final
Act. 3 (citing Sahas 4:44-49; 10:34-42, 46—55; 17:25—33). Specifically, the
Examiner finds that “the collection of transfer functions hA through ho
constitute the at least one modeF because “hA through hD together describe
reflections from a geology that is associated with a composite seismic
signal” (Ans. 18 (emphasis added))3 * 5, and that “each of the hA-hD is a linear
3 Appellants’ argument that “Sahas fails to disclose that any of these
transfer functions is a model that describes geology that is associated with a
composite seismic signal,” is considered moot in view of the Examiner’s
clarification in the Examiner’s Answer that the Examiner finds the collection
5
Appeal 2015-003845
Application 11/964,402
operator [that] describes wave propagation since each hA-hD connects a
vibrator output. . . with geophone recording, which must have propagated
from vibratory source to recording geophone.” Id. at 18—19 (emphasis
added).4
Appellants argue that “Sallas fails to disclose associating the ‘hA
through hD model’ with a linear operator that describes wave propagation,”
because “the addition operators in Sallas’ equations, which linearly relate
the transfer functions the hA through ho ... do[] not describe wave
propagation, as expressly recited in the claims.” Reply Br. 2 (emphasis
added). However, Appellants’ argument does not address the Examiner’s
finding that each of transfer functions hA through ho is a linear operator, as
set forth supra. In other words, the Examiner does not rely on the addition
operators in Sallas’ equations as linear operators describing wave
propagation.
Regarding the Examiner’s finding that each one of the transfer
functions hA through ho is a linear operator, Appellants argue that
of the hA through hD transfer functions to constitute to the claimed model,
rather than each of the hA through hD transfer functions separately. Appeal
Br. 13 (emphasis added); Ans. 18.
4 Appellants’ argument that “none of [the algebraic expressions in Sallas’
equations] disclose a linear operator that describes wave propagation
because a summation operator is not a linear operator that describes wave
propagation” is considered moot in view of the Examiner’s clarification in
the Examiner’s Answer that the Examiner finds each of the hA through ho
transfer functions is a linear operator, and not the summation operators in the
equations. Appeal Br. 13 (emphasis added); see also Ans. 18.
6
Appeal 2015-003845
Application 11/964,402
[i]t is entirely unclear how the claims are read onto Sallas with
this construction, however, as if the individual transfer functions
hA through ho are all transfer functions, in the context of claims
1, 12 and 26, then the only remaining operator that would be
‘associated’ with these transfer functions is the addition operator,
which . . . does not describe wave propagation.
Reply Br. 2. Appellants conclude that “[a] claim construction in which the
models and linear operator(s) describing wave propagation are the same is
wholly unreasonable, as such a construction improperly eviscerates the
expressly-recited claim language pertaining to associating the models with
the linear operators.” Id.
Claim 1, as set forth supra, requires, in relevant part, associating
models describing reflections from geology and linear operators describing
wave propagation. Appellants do not argue that the Examiner erred in
finding that the collection of transfer functions hA through ho describe
reflections from geology, as claimed, nor that each one of the transfer
functions hA through hD is a linear operator that describes wave propagation,
as claimed. Rather, we understand that Appellants are arguing that the
Examiner’s findings are unreasonable in the context of the claim, which
requires associating the models with the linear operators. In other words,
Appellants argue that it is unreasonable to rely on Sallas for disclosing
associating the collection of transfer functions hA through hD, as a model,
with each of transfer functions hA through ho, as linear operators, by the
equations from Sallas reproduced below.
7
Appeal 2015-003845
Application 11/964,402
R l“A j 1 'licr+D J-Jill,
R2~As-liA+Bi-V** f>
R3~A3-*b.A+B3i»hig4Cyft3
R4“A4h^+B4-hfi4C4^(74C>4hjj,
Sallas 10:52—55. A system of equations for each frequency in a Discrete
Fourier Transform is depicted above,
where Rn is the composite recorded frequency domain
representation coefficient at the specified frequency at geophone
G for the nth sweep, where An is the source vibration coefficient
for the specified frequency as measured at vibration Va for the
nth sweep, where B is the source vibration coefficient for the
specified frequency as measured at vibrator VB for the nth sweep,
and so on.
Sallas 10:47—63. On the record before us, Appellants have not explained
why, or presented evidence as to why, such an association (by equations) of
the “models” (i.e., lu through ho collectively) and “linear operators” (i.e., lu
through hD individually) is unreasonable.5 The claim term “associating”
reads on the relationship identified by the Examiner. See Webster’s Third
New Int’l Dictionary 132 (1993) (defining “associate” as “to join (things)
together or connect (one thing) with another.”).
Accordingly, we sustain the Examiner’s rejection of claim 1 under 35
U.S.C. § 102(b) as anticipated by Sallas. Appellants chose not to present
separate arguments for the patentability of independent claims 12 and 26,
5 Appellants’ argument, which states “assuming, for argument, that the
[Examiner] contends that hA through ho transfer functions purportedly
disclose at least one model that describes reflections from a geology
associated with a composite seismic signal,” is incomplete. Appeal Br. 13—
14.
8
Appeal 2015-003845
Application 11/964,402
and claims 2, 3, 10, 11, 13, 14, 19, and 20 depending from claims 1, 12, and
26. Appeal Br. 14. Therefore, we also sustain the Examiner’s rejection of
claims 2, 3, 10-14, 19, 20, and 26 under 35 U.S.C. § 102(b) as anticipated
by Salias.
Rejections II, III, V, and VII
Appellants do not present separate arguments for the patentability of
dependent claims 4—7, 15, 17, 18, and 24, but rely on their arguments
presented with respect to the independent claims from which they depend.
See Appeal Br. 19. Because we sustain the Examiner’s rejection of
independent claims 1, 12, and 26, we also sustain the Examiner’s rejection
of claims 4—7, 15, 17, 18, and 24 under 35 U.S.C. § 103(a) as unpatentable
over Sallas, and Herkenhoff, Devaney, Falkenberg, and/or Jeffryes.
Rejection IV
Dependent claim 8
Claim 8, which depends from claim 1, recites “wherein the linear
operators comprise linear Radon operators and hyperbolic Radon operators.”
Appeal Br. 21 (Claims App.) (emphasis added). The Examiner finds that
Sallas does not teach that the linear operators comprise linear Radon
operators and hyperbolic Radon operators, and relies on Wood for teaching
that “the linear operators comprise at least one operator selected from the
following: a linear Radon operator, a parabolic operator, and a non-
hyperbolic Radon operator, but that a hyperbolic operator is preferred.”
Final Act. 11 (citing Wood 6:40-43; Fig. 1, reference numeral 5). The
Examiner further determines that “Wood’s use of ‘and’ . . . shows that Wood
9
Appeal 2015-003845
Application 11/964,402
means more than one type could be included,” and that “[o]ne skilled in the
art would understand this to apply to Wood’s disclosure of use of a
hyperbolic Radon operator as well.” Id. The Examiner reasons that “Wood
therefore suggests that the linear operators comprise linear Radon operators
and hyperbolic Radon operators.” Id. (emphasis added).
Appellants argue that the Examiner’s finding that Wood discloses (or
suggests) “using both linear Radon operators and hyperbolic linear
operators” lacks support. Appeal Br. 16. In support, Appellants submit,
inter alia, that “Wood clearly teaches a [(or one)] particular Radon
transformation based on a particular travel time trajectory (linear slant stack,
parabolic or hyperbolic) may be selected.” Id. Appellants submit that the
Examiner “neither cites to specific examples in Wood where Wood
purportedly discloses using both linear Radon operators and hyperbolic
Radon operators; nor is there a plausible reason for such a use.” Id. at 17.
The Examiner responds that “though Wood discloses preference for
use of hyperbolic operator, this does not preclude the use of a linear Radon
operator and a hyperbolic operator were such use appropriate.” Ans. 22—23.
Appellants reply that the Examiner’s Answer “merely supports the
proposition that a choice may be made between a linear Radon operator or a
hyperbolic Radon operator.” Reply Br. 3.
As an initial matter, we agree that the language of claim 8, namely,
“wherein the linear operators comprise linear Radon operators and
hyperbolic Radon operators,” means that, in practicing the method steps of
claim 1, from which claim 8 depends, both linear Radon operators and
10
Appeal 2015-003845
Application 11/964,402
hyperbolic Radon operators must be used as linear operators and associated
with models, as claimed. See Spec. 143 (“‘Li’ represents a linear Radon
operator” and “‘Hi’ represents a hyperbolic Radon transform operator.”).
We are persuaded by Appellants’ argument that a preponderance of
the evidence fails to support the Examiner’s finding that Wood discloses or
suggests using both linear Radon operators and hyperbolic Radon operators,
as required by claim 8. We agree with Appellants that the disclosure in
Woods at column 6, lines 40 to 43, which is relied on by the Examiner and
states that “Radon transformations based on linear slant stack, parabolic, and
other non-hyperbolic kinematic travel time trajectories may be used, but
those based on hyperbolic Radon kinematic trajectories are preferred,” does
not suggest using both linear and hyperbolic Radon operators within the
same method, but rather discloses that either one may be selected in the
performance of the method. Wood 6:40-43 (emphasis added). Further,
Block 5 in the flowchart depicted in Figure 1 of Wood states “Transform
Offset Weighted Data to Time-Slowness Domain with Hyperbolic Radon
Transformation,” but does not refer to linear Radon operators or suggest
using both, as determined by the Examiner. Woods, Fig. 1, reference
numeral 5 (emphasis added). The Examiner’s finding that Woods does not
preclude the use of linear Radon operators and hyperbolic Radon operators
does not cure the deficiencies in the Examiner’s findings with respect to
Wood.
Accordingly, we cannot sustain the Examiner’s rejection of claim 8
under 35 U.S.C. § 103(a) as unpatentable over Sallas and Wood.
11
Appeal 2015-003845
Application 11/964,402
Dependent Claims 9 and 16
Dependent claims 9 and 16, which depend from independent claims 1
and 12, recite “wherein the linear operators comprise at least one operator
selected from the following: a linear Radon operator, a hyperbolic Radon
operator, a parabolic operator and a migration operator.” Appeal Br. 21, 22
(Claims App.). Regarding claim 9, the Examiner finds that Wood teaches at
least one of the claimed operators, and reasons that it would have been
obvious “to utilize the method of claim 1 as taught by Sallas, in combination
with the linear operators comprising at least one [of the operators recited in
claim 9] as taught by Wood, since such combination can provide methods
for more accurately defining the stacking velocity for data sets.” Final Act.
12 (citing Wood 6:40-43; Fig. 1, reference numeral 5). The Examiner
makes the same finding with respect to claim 16. See Final Act. 12—13.
Appellants argue that “Woods fails to disclose or render obvious
characterizing seismic data as a function of models that describe reflections
from geology and linear operators that include Radon operators.” Appeal
Br. 17 (emphasis added); see also id. at 16. However, Appellants’ argument
does not address the Examiner’s rejection, which relies on Sallas for
disclosing the claim limitation requiring characterization (see Final Act. 4,
5); the Examiner only relies on Woods for disclosing the use of Radon
operators as the linear operators, as set forth supra. Nonobviousness cannot
be established by attacking the references individually when the rejection is
predicated upon a combination of prior art disclosures. See In re Merck &
Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Therefore, Appellants’
12
Appeal 2015-003845
Application 11/964,402
argument does not apprise us of error in the Examiner’s findings or
reasoning with respect to claims 9 and 16.
Appellants also argue that “[i]t is equally unclear how or why Radon
transformations may be incorporated into any of the functions discussed in
Sallas.” Appeal Br. 16. However, Appellants offer no argument or evidence
in support of such a conclusion. As such, Appellants’ contention appears to
represent mere attorney argument without supporting evidence. See In re De
Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (“Arguments and conclusions
unsupported by factual evidence carry no evidentiary weight”). Moreover,
Appellants do not explain why the Examiner’s stated “how” and “why,” or
rationale, lacks factual underpinning. See Final Act. 11—13.
Regarding Appellants’ argument that “[cjlaims 9 and 16 overcome the
§103 rejections for at least the same reasons as the claims from which they
depend,” we have sustained the Examiner’s rejection of independent claims
1 and 12, supra. Appeal Br. 17.
Accordingly, we sustain the Examiner’s rejection of claims 9 and 16
under 35 U.S.C. § 103(a) as unpatentable over Sallas and Wood.
Rejection VI
Regarding independent claim 21, the Examiner applies the same
teachings from Sallas as applied to claim 1 supra. Final Act. 14. Appellants
rely on their arguments presented for claim 1, also discussed supra. Appeal
Br. 14. For the reasons discussed supra, we sustain the Examiner’s rejection
of independent claim 21. Appellants chose not to present separate
13
Appeal 2015-003845
Application 11/964,402
arguments for the patentability of claims 22 and 23, which depend from
claim 21, apart from those presented for claim 21. Appeal Br. 19.
Accordingly, we sustain the Examiner’s rejection of claims 21—23 as
unpatentable under 35 U.S.C. § 103(a) as unpatentable over Sallas and
Jeffryes.
Rejection VIII
Similar to dependent claims 9 and 16 discussed supra, claim 25,
which depends from independent claim 21, recites, in relevant part, “wherein
the linear operators comprise at least one operator selected from the
following: a linear Radon operator, a hyperbolic Radon operator, a
parabolic operator and a migration operator.” Appeal Br. 25 (Claims App.).
Regarding claim 25, the Examiner finds that Wood teaches at least one of
the claimed operators, and reasons that it would have been obvious “to
utilize the system of claim 12 as taught by Sallas . . . , in combination with
the linear operators comprising at least one [of the operators recited in claim
25], as taught by Wood, since such combination can provide methods for
more accurately defining the stacking velocity for data sets.” Final Act. 18
(citing Wood 6:40-43, Fig. 1, reference numeral 5).
Appellants argue that “Woods fails to disclose or render obvious
characterizing seismic data as a function of models that describe reflections
from geology and linear operators that include Radon operators.” Appeal
Br. 18—19; see also id. at 16). However, similar to Appellants’ argument
directed to claims 9 and 16 discussed supra, Appellants’ argument does not
address the Examiner’s rejection, which relies on Sallas for disclosing these
14
Appeal 2015-003845
Application 11/964,402
claim limitations, and on Woods solely for disclosing the use of Radon
operators as the linear operators. Therefore, Appellants’ argument does not
apprise us of error in the Examiner’s findings or reasoning with respect to
claim 25.
Accordingly, we sustain the Examiner’s rejection of claim 25 under
35 U.S.C. §103(a) as unpatentable over Sallas, Jefffyes, and Wood.
NEW GROUND OF REJECTION
Pursuant to our authority under 37 C.F.R. § 41.50(b), we enter a new
ground of rejection of claims 1—26 under 35 U.S.C. § 101.
In Alice, the Supreme Court applied the framework set forth
previously in Mayo Collaborative Services v. Prometheus Laboratories,
Inc., 566 U.S. 66 (2012), “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. The first step in the analysis is to “determine
whether the claims at issue are directed to one of those patent-ineligible
concepts].” Id. If so, the second step in the analysis is to consider the
elements of the claims “individually and ‘as an ordered combination’” to
determine whether there are additional elements that “‘transform the nature
of the claim’ into a patent-eligible application.” Id. (quoting Mayo, 132
S.Ct. at 1294). In other words, the second step is to “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. (brackets in original) (quoting
15
Appeal 2015-003845
Application 11/964,402
Mayo, 132 S.Ct. at 1294). The Court in Alice noted that “‘[s]imply
appending conventional steps, specified at a high level of generality,’ was
not ‘enough’ [in Mayo] to supply an ‘inventive concept.”’ Alice, 134 S. Ct.
at 2357 (quoting Mayo, 132 S. Ct. at 1300, 1297, 1294).
Independent claim 1
We determine that the method of independent claim 1 is directed to
the abstract idea of the mathematical analysis of seismic data. Our
reviewing court has recognized that collecting and analyzing information,
without more, is abstract (Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
1350, 1354 (Fed. Cir. 2016); and also that “without additional limitations, a
process that employs mathematical algorithms to manipulate existing
information to generate additional information is not patent eligible”
(Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344,
1351 (Fed. Cir. 2014)). As stated supra, claim 1 requires, in relevant part,
obtaining seismic data, associating models with linear operators,
characterizing the seismic data as a function of the models and the
associated linear operators, processing the seismic data on a processor-based
machine to jointly determine the models based on the function, and, based
on the determined models, generating a dataset. Therefore, the subject
matter of claim 1 is a method that employs mathematical algorithms to
manipulate existing information (i.e., “seismic data”) to generate additional
information (i.e., “a dataset representing a component of the composite
seismic signal attributable to one of the seismic sources”). See Claim 1
supra', see also Spec. ^fl[ 30—35.
16
Appeal 2015-003845
Application 11/964,402
Second, we determine that the additional elements of claim 1,
individually and as an ordered combination, do not transform the nature of
claim 1 into a patent-eligible application. Specifically, claim recitations that
define the source of the data (i.e., the data represents measurements acquired
by seismic sensors of a composite seismic signal produced by firings of
multiple seismic sources) do not transform the data into something more
than data, or the nature of claim 1 from the abstract idea of employing
mathematical algorithms to manipulate data into a patent-eligible
application. The individual or combined steps of characterizing, processing,
and generating a dataset likewise are insufficient to transform the nature of
claim 1, in that these steps describe using mathematical algorithms to
manipulate the data to generate additional data.
Independent claim 12
We also determine that the system recited in independent claim 12 is
directed to the abstract idea of the mathematical analysis of seismic data, in
that the system of claim 12 merely employs an interface and processor to
perform the method steps of receiving seismic data and processing the
seismic data (using an algorithm) to generate a dataset. The introduction of
a computer (or computing components) does not alter the analysis under step
two. In other words, “[t]he mere recitation of a generic computer cannot
transform a patent-ineligible abstract idea into a patent-eligible invention.”
Alice Corp., 134 S.Ct. at 2358 (citations omitted). “[T]he relevant question
is whether the claims here do more than simply instruct the practitioner to
17
Appeal 2015-003845
Application 11/964,402
implement the abstract idea ... on a generic computer.” Id. at 2359. We
determine that claim 12 does not.
Independent claim 21
We also determine that the article comprising a computer accessible
storage medium recited in independent claim 21 is directed to the abstract
idea of the mathematical analysis of seismic data, in that the article of claim
12 is not “truly drawn to a specific computer readable medium, rather than
to the underlying method.” CyberSource Corp. v. Retail Decisions, Inc., 654
F.3d 1366, 1374—75 (internal quotations omitted). Again, the underlying
method is receiving seismic data and processing the seismic data to generate
a dataset, which we have determined is collecting and analyzing
information, using an algorithm, which amounts to an abstract idea. Further,
similar to claim 1, as discussed supra, the additional elements of claim 21,
which limit what the data, models, and linear operators represent and also
how the data is processed and characterized (mathematically) to determine a
dataset, when considered individually and as an ordered combination, do not
transform the nature of claim 1 into a patent-eligible application.
Independent claim 26
We further determine that the method of receiving data, and
characterizing and processing the data to generate a dataset, as recited in
independent claim 26 is an abstract idea for the same reasons stated supra
with respect to claim 1. Similar to claim 1, as discussed supra, the
additional elements of claim 21, which limit what the data, models, and
linear operators represent and also how the data is processed and
18
Appeal 2015-003845
Application 11/964,402
characterized (mathematically) to determine a dataset, when considered
individually and as an ordered combination, do not transform the nature of
claim 1 into a patent-eligible application.
Independent claim 26
Dependent claims 2—11, 12—16, 19, 20, and 22—25
As discussed supra, claims that exclusively recite collecting
information and analyzing information by mathematical algorithms, without
more, are abstract ideas. See Elec. Power Grp., 830 F.3d at 1353. Further,
as also discussed supra, implementing the abstract idea on a generic
computer cannot transform a patent-ineligible abstract idea into a patent-
eligible invention. See Alice Corp., 134 S.Ct. at 2358. Therefore, the
recitations of claims 2—11, 13—16, 19, 20, and 22—25, which are directed to
further limiting the information represented by the seismic data, or applying
further steps or limitations in the applied mathematical algorithms, or using
computing components to implement the abstract idea of the mathematical
analysis of seismic data, are insufficient, when considered individually and
as an ordered combination, to transform the nature of these claims into a
patent-eligible application.
Dependent claims 17 and 18
Claim 17 recites, “[t]he system of [independent] claim 12, further
comprising: at least one towed streamer containing the seismic sensor,
wherein the processor is located on said at least one towed streamer.”
Appeal Br. 23 (Claims App.). We determine that when considering claim 17
individually and as an ordered combination, limiting the location of the
19
Appeal 2015-003845
Application 11/964,402
processor to a towed streamer is not an inventive concept sufficient to ensure
that the patent in practice amounts to significantly more than a patent upon
the ineligible concept itself. Rather, locating the processor on the towed
streamer is a well-understood, routine, conventional activity previously
known in the industry of seismic exploration. See, e.g., Final Act. 13 (citing
Falkenberg | 54 (“the receiver processors 13 are . . . built into the streamer
section 15”). Similar, it is a well-understood, routine, conventional activity
previously known in the industry of seismic exploration to use a vessel to
tow at least one towed streamer, as required by claim 18. See Spec. 13
(discussing the Background of the invention, “[i]n one type of marine
survey, called a ‘towed-array’ survey, an array of seismic sensor-containing
streamers and sources is towed behind a survey vessel.”).
Accordingly, we enter a new ground of rejection of claims 1—26 under
35 U.S.C. § 101 as being directed to a patent-ineligible concept.
DECISION
The Examiner’s rejection of claims 1—3, 10-14, 19, 20, and 26 stand
rejected under 35 U.S.C. § 102(b) as anticipated by Sallas is AFFIRMED.
The Examiner’s rejection of claims 4—7, 9, 15—18, and 21—25 under
35 U.S.C. §103(a) is AFFIRMED.
The Examiner’s rejection of claim 8 under 35 U.S.C. §103(a) as
unpatentable over Sallas and Wood is REVERSED.
We enter a NEW GROUND OF REJECTION of claims 1-26 under
35 U.S.C. § 101.
20
Appeal 2015-003845
Application 11/964,402
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b).
37 C.F.R. § 41.50(b) provides “[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:
When 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 which 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.
21
Appeal 2015-003845
Application 11/964,402
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART; 37 C.F.R. $ 41.50(b)
22