Ex Parte Payen et al

Patent Trial and Appeal Board

Feb 12, 2018

14420138 (P.T.A.B. Feb. 12, 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.
14/420,138 02/06/2015 Thierry Payen 0336-465/100607 5418
11171 7590 02/14/2018
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404
EXAMINER
DALBO, MICHAEL J
ART UNIT PAPER NUMBER
2865
NOTIFICATION DATE DELIVERY MODE
02/14/2018 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):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THIERRY PA YEN and YUAN NI
Appeal 2017-010066
Application 14/420,138
Technology Center 2800
Before ADRIENE LEPIANE HANLON, GEORGE C. BEST, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL1
1 In our Opinion, we refer to the Specification filed February 6, 2015
(“Spec.”); the Final Action mailed November 7, 2016 (“Final Act.”); the
Advisory Action mailed February 24, 2017 (“Adv. Act.”); the Appeal Br.
filed April 6, 2017 (“Appeal Br.”); the Examiner’s Answer mailed June 13,
2017 (“Ans.”); and the Reply Brief filed July 20, 2017 (“Reply Br.”).
Appeal 2017-010066
Application 14/420,138
STATEMENT OF THE CASE
Appellant2 appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-3, 5-11, 13-17, 19, and 20.3 We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
The claims are directed to systems and methods for far field signature
reconstruction using data from near field, mid field, and surface field
sensors. Spec. ^ 2. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A method for reconstructing the far field signature of a
signal source having a plurality of seismic energy sources,
comprising:
receiving a first trace from a first sensor, wherein the first
sensor is a near-field sensor;
receiving a second trace from a second sensor located in
a different field from the first sensor, wherein the second sensor
is a mid-field sensor, which is towed deeper than the near-field
sensor;
receiving position information comprising position
information for the first sensor and position information for the
second sensor;
computing a plurality of notional signatures based on the
first trace, the second trace, and the position information;
determining a far field signature by combining the
plurality of notional signatures; and
2 Appellant is CGG Services SA, the applicants and real party in interest.
Appeal Br. 2.
3 Claims 4, 12, and 18 were cancelled by an Amendment filed February 6,
2017, after the Final Action.
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Appeal 2017-010066
Application 14/420,138
generating with a computing system an image of a
surveyed subsurface based on the far field signature,
wherein computing the plurality of notional signatures
comprises:
generating a first set of simultaneous equations based on
the first trace and the position information for the first sensor;
computing a first plurality of preliminary notional
signatures by solving the first set of simultaneous equations;
generating a second set of simultaneous equations based
on the second trace and the position information for the second
sensor;
determining a second plurality of notional signatures by
solving the second set of simultaneous equations; and
combining the first plurality of notional signatures and
the second plurality of notional signatures.
Appeal Br. 19-20 (Claims App’x).
REJECTIONS
The Examiner maintains and Appellants seek review of the rejection
of the claims under 35 U.S.C. § 101 as directed to a judicial exception to
patentable subject matter. Final Act. 2-7; Appeal Br. 8-17.
OPINION
Appellant argues claims 1 and 15, and their respective dependent
claims, together. Appeal Br. 8-17. We select claim 1 as representative
pursuant to 37 C.F.R. § 41.37(c)(l)(iv). As provided by this rule, claims 2,
3, 5-8, 16, 17, 19, and 20 stand or fall with claim 1.
The Examiner finds that claim 1 is directed to the abstract idea of
mathematically processing seismic data in order to estimate a far field
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Application 14/420,138
signature. Final Act. 2. The Examiner further finds that claim 1 does not
include additional elements that are sufficient to amount to significantly
more than the judicial exception. Id. at 3.
Appellant argues that the Examiner “arbitrar[il]y and capricious[ly]
carves out half of the steps recited in claim[s] 1 ... as ‘abstract claim
language.’” Appeal Br. 8-9. Appellant contends that the Examiner
oversimplifies the claimed subject matter by failing to account for the
“receiving” steps in claim 1. Id. at 9.
We do not find the Appellant’s arguments sufficient to identify any
reversible error in the Examiner’s rejection.4 Because we are in agreement
with the Examiner’s reasoning and rebuttal to Appellant’s arguments on
appeal, we adopt them as our own and add the following for emphasis.
To determine whether an invention claims ineligible subject matter,
we apply the two-step test first introduced in Mayo Collaborative Services v.
Prometheus Laboratories, Inc., 566 U.S. 66, 72 (2012) and further explained
in Alice Corp. Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347, 2354
(2014). First, we must determine whether the claims at issue are directed to
a patent-ineligible concept such as an abstract idea. See Alice, 134 S. Ct. at
2355. Second, 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.” Id. at 2357 (quoting
Mayo, 566 U.S. at 72, 77).
In this case, we conclude, first, that the Appellant’s claim, directed to
reconstruction of the far field signature of a signal source from received data
is directed to an abstract idea.
4 See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
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Application 14/420,138
Appellant’s arguments against the Examiner’s finding that the recited
computing, determining, and generating steps are nothing more than
mathematically processing seismic data in order to estimate a far field
signature are unpersuasive. See Final Act. 2; Appeal Br. 9-11. Appellant’s
contention that the Examiner oversimplifies the claims by failing to account
for the three “receiving” steps, which require receiving various seismic data,
is unpersuasive of error, as the additional steps merely require receiving data
to be used in the abstract “computing,” “determining,” and “generating”
steps. See Appeal Br. 9.
The Examiner finds that claim 1 is similar to the patent-ineligible
claims in Electric Power Group, LLC v. Alstrom S.A., 830 F.3d 1350 (Fed.
Cir. 2016), in which claims require gathering data from an electrical power
grid, analyzing the data, and displaying results of the analysis. Final Act. 4.
Appellant contends that claim 1 is more similar to the claims in Research
Corp. Technologies Inc. v. Microsoft Corp., 621 F.3d 859 (Fed. Cir. 2010).5
Appeal Br. 10-11.
5 Appellant also argues that the reasoning in Thales Visionix Inc. v. United
States, 850 F.3d 1343 (Fed. Cir. 2017), should apply to find the claim not
directed to an abstract idea. Reply Br. 1-3. However, we do not address
Appellant’s contention related to Thales Visionix Inc., as it is raised for the
first time in the Reply Brief, even though the opinion was issued before the
filing of the Appeal Brief. Under regulations governing appeals to the
Board, a new argument not timely presented in the Appeal Brief will not be
considered when filed in a Reply Brief, absent a showing of good cause
explaining why the argument could not have been presented in the Appeal
Brief. See Ex parte Borden, 93 USPQ2d 1473, 1477 (BPAI 2010)
(informative) as well as 37 C.F.R. § 41.37 and § 41.41. Because the record
contains no such showing, we will not consider the new argument in the
Reply Brief.
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Application 14/420,138
Upon comparing pending claim 1 to the claims in Electric Power
Group and Research Corp. Technologies, we agree with the Examiner that
the claims in Electric Power Group are most comparable to the ’138
Application’s claims. The claims in Electric Power Group are directed to
collecting data from multiple data sources, analyzing the data, and
displaying the results; “[t]he advance they purport to make is a process of
gathering and analyzing information of a specified content, then displaying
the results, and not any particular assertedly inventive technology for
performing those functions.” See Electric Power Group, 830 F.3d at 1354.
Claim 1 is not like the claims in Research Corp. Technologies because it
does not serve to improve the general functionality of a computer display
device, but rather, is directed to analyzing a specific data set in order to
obtain a specific result, using a computer as a tool to implement the analysis.
See Ans. 13.
Having determined claim 1 encompasses a patent-ineligible concept,
we next determine whether the claim includes an inventive concept—i.e., an
element or combination of elements in the claim that is “sufficient to ensure
that the patent in practice amounts to significantly more than a patent upon
the . . . [abstract idea] itself.” Alice, 134 S. Ct. at 2357 (quoting Mayo, 566
U.S. at 73).
Appellant argues that one or more of the three “receiving” steps of
claim 1 amount to significantly more than the mathematical operation of
estimating a far field signature because the additional steps tie the
mathematical step to the computer’s capability of processing seismic data.
Appeal Br. 13. Appellant argues that computer-implemented processes are
significantly more than an abstract idea “where generic computer
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Application 14/420,138
components are able in combination to perform functions that are not
merely generic.” Id. (citing July 2015 Update to 2014 Interim Guidance on
Subject Matter Eligibility). However, the “receiving” limitations require
receiving data, which cannot be said to be more than a generic function. The
“receiving” steps do not add significantly to the abstract idea.
Claim 1 also does not improve an existing technological process,
contrary to Appellant’s contention. Appeal Br. 14-15. Claim 1 does not
improve the functioning of the computer itself, but rather improves the
results of data processing algorithms. Even if, as Appellant argues, a
supercomputer is required in order to process the data, the use of the
computer is a conventional activity. See id. at 14.
Appellant also argues that claim 1 does not claim building blocks of
human ingenuity. Id. at 16; see Alice Corp., 134 S. Ct. at 2354 (“[I]n
applying the § 101 exception, we must distinguish between patents that
claim the ‘buildin[g] block[s]’ of human ingenuity and those that integrate
the building blocks into something more, thereby ‘transform[ing]’ them into
a patent-eligible invention.” (internal citations omitted)). As the Examiner
noted, the absence of complete preemption does not demonstrate patent
eligibility. Ans. 16; see OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d
1359, 1362-63 (Fed. Cir. 2015). Moreover, claim 1 preempts the claimed
data processing algorithm.
In view of the above analysis, we hold that claim 1 does not recite an
inventive concept sufficient to transform the claimed subject matter into a
patent-eligible application of the abstract idea, and thus we find claims 1 and
15 and their dependent claims do not comply with 35U.S.C. § 101.
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Application 14/420,138
Appellant separately argues for patentability of independent claim 9,
which recites a seismic survey system including a source array, a first
sensor, a second sensor, and a computing system. Appeal Br. 17. The
Examiner finds that claim 9 is directed to the abstract idea of mathematically
processing seismic data in order to estimate a far field signature, noting the
elements of computing a plurality of notional signatures, determining a far
field signature by combining a plurality of notional signatures, and
generating an image of a surveyed subsurface based on the far field
signature. Final Act. 5. The Examiner finds that the additional claim
elements highlighted by Appellant do not amount to significantly more than
the abstract idea. Id. In particular, the Examiner finds that the seismic
source array by itself does not amount to “something significantly more”
than the abstract idea because it is a routine and conventional piece of
equipment in the art. Final Act. 7. Appellant fails to show how claim 9
includes additional features that amount to more than routine, conventional
activity. Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir.
2014). We, therefore, conclude that claim 9 and its dependent claims 10 and
11 (not argued separately from claim 9) are directed to patent-ineligible
subject matter.
DECISION
The rejection of claims 1-3, 5-11, 13-17, 19, and 20 is affirmed.
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
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