Ex Parte PENG et al

Patent Trial and Appeal Board

Jun 29, 2017

14432388 (P.T.A.B. Jun. 29, 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.
14/432,388 03/30/2015 Can PENG 0336-405-2/100621 4393
11171 7590 07/03/2017
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404
EXAMINER
HENSON, MISCHITA L
ART UNIT PAPER NUMBER
2865
NOTIFICATION DATE DELIVERY MODE
07/03/2017 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):
Mailroom@ppblaw.com
eofficeaction @ appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CAN PENG, RONGXIN HUANG, and YI XUAN
Appeal 2017-0071611
Application 14/432,388
Technology Center 2800
Before JOHN A. EVANS, CATHERINE SHIANG, and ALEX S. YAP,
Administrative Patent Judges.
YAP, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1, 2, 4—17, and 19-22, which are all the claims pending
in this application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is CGG Services SA.
(Br. 2.)
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Application 14/432,388
STATEMENT OF THE CASE
Introduction
Appellants’ invention “generally relate[s] to processing seismic data
sets representing the same underground formation.” (March 30, 2015
Specification (“Spec.”) 1.) Specifically, “noise is attenuated based on
comparing the two data sets under the assumption that each data set includes
a common primary signal and individual noise.” (Id.) Claim 1 is
illustrative, and is reproduced (with minor formatting changes) below:
1. A method for cooperative noise attenuation, the method
comprising:
receiving a first data set and a second data set which have
been acquired by surveying a same underground formation;
applying, by a processor, a high angular resolution
complex wavelet transform (HARCWT) to the first data set and
to the second data set, to obtain a first data set representation
and a second data set representation, respectively, in a wavelet
basis;
attenuating at least one first complex coefficient of the
first data set representation that differs, according to a first
criterion, from a complex coefficient of the second data set
representation corresponding to a same wavelet as the at least
one first complex coefficient;
attenuating at least one second complex coefficient of the
second data set representation that differs, according to a
second criterion, from a complex coefficient of the first data set
representation corresponding to a same wavelet as the at least
one first complex coefficient;
generating a de-noised first data set based on the
attenuated at least one second complex coefficient; and
generating an image, based on the de-noised first data set,
of the underground formation for hydrocarbon exploration.
(Br. 19 (Claims App’x).)
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Application 14/432,388
Rejection on Appeal
Claims 1,2, 4—17, and 19-22 stand rejected under 35U.S.C. § 101
because the claims are not directed to patent eligible subject matter. (See
Final Office Action (mailed March 29, 2016) (“Final Act.”) 2-6.)
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We are not persuaded that the
Examiner erred in rejecting claims 1,2, 4—17, and 19—22. We adopt as our
own the findings and reasons set forth by the Examiner in the action from
which this appeal is taken and the reasons set forth by the Examiner in the
Examiner’s Answer in response to Appellants’ Appeal Brief. (Ans. 2—12.)
However, we highlight and address specific findings and arguments for
emphasis as follows.
The Examiner finds that claims 1,2, 4—17, and 19—22 are “directed to
a judicial exception (i.e., a law of nature, a natural phenomenon, or an
abstract idea) without significantly more.” (Final Act. 4—6.) According to
the Examiner, the limitations of independent claims 1 and 17:
amount[] to no more than mathematical concepts such as
mathematical algorithms, mathematical relationships,
mathematical formulas, and calculations without more.
The claim(s) does/do not include additional elements that
are sufficient to amount to significantly more than the judicial
exception because the additional elements of a processor, an
interface and a data processing unit merely amount to
generically recited computer components and does no more
than simply instruct the practitioner to implement the abstract
idea of on a generic computer. . . .
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(Id. at 4—5, emphasis added; see also id. at 5—6 (finding that independent
claim 13 is also directed to an abstract idea.).) Appellants contend that: (1)
the claims are not directed to abstract ideas (Br. 10-12); (2) the claims recite
significantly more (id. at 12—13); and (3) the Examiner does not have
authority to identify abstract ideas beyond existing case law (id. at 13—16).
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101. The
Supreme Court, however, has long interpreted § 101 to include implicit
exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are not
patentable. E.g., Alice Corp. Pty. Ltd. v. CLS BankInt’l, 134 S. Ct. 2347,
2354 (2014).
In determining whether a claim falls within the excluded category of
abstract ideas, we are guided by the Supreme Court’s two-step framework,
described in Mayo and Alice. Id. at 2355 (citing Mayo Collaborative Servs.
v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1296—97 (2012)). In accordance
with that framework, we first determine whether the claim is “directed to” a
patent-ineligible abstract idea. See Alice, 134 S. Ct. at 2356 (“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.”); Bilski v. Kappos,
561 U.S. 593, 611 (2010) (“Claims 1 and 4 in petitioners’ application
explain the basic concept of hedging, or protecting against risk.”); Diamond
v. Diehr, 450 U.S. 175, 184 (1981) (“Analyzing respondents’ claims
according to the above statements from our cases, we think that a physical
and chemical process for molding precision synthetic rubber products falls
within the § 101 categories of possibly patentable subject matter.”); Parker
v. Flook, 437 U.S. 584, 594—595 (1978) (“Respondent’s application simply
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Application 14/432,388
provides a new and presumably better method for calculating alarm limit
values.”); Gottschalkv. Benson, 409 U.S. 63, 64 (1972) (“They claimed a
method for converting binary-coded decimal (BCD) numerals into pure
binary numerals.”).
The patent-ineligible end of the spectrum includes fundamental
economic practices, Alice, 134 S. Ct. at 2357; Bilski, 561 U.S. at 611;
mathematical formulas, Flook, 437 U.S. at 594—95; and basic tools of
scientific and technological work, Gottschalk, 409 U.S. at 67. On the patent-
eligible side of the spectrum are physical and chemical processes, such as
curing rubber, Diamond, 450 U.S. at 184 n.7, “tanning, dyeing, making
water-proof cloth, vulcanizing India rubber, smelting ores,” and a process
for manufacturing flour, Gotts chalk, 409 U.S. at 69.
If the claim is “directed to” a patent-ineligible abstract idea, we then
consider the elements of the claim—both individually and as an ordered
combination—to assess whether the additional elements transform the nature
of the claim into a patent-eligible application of the abstract idea. Alice,
134 S. Ct. at 2355. This is a search for an “inventive concept”—an element
or combination of elements sufficient to ensure that the claim amounts to
“significantly more” than the abstract idea itself. Id.
Abstract Idea
According to Alice step one, “[w]e must first determine whether the
claims at issue are directed to a patent-ineligible concept,” such as an
abstract idea. Alice, 134 S. Ct. at 2355. Emphasis added.
Before determining whether claims at issue are directed to an abstract
idea, we must first determine what the claims are directed to.
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The “directed to” inquiry [ ] cannot simply ask whether the
claims involve a patent-ineligible concept, because essentially
every routinely patent-eligible claim involving physical
products and actions involves a law of nature and/or natural
phenomenon—after all, they take place in the physical world.
See Mayo, 132 S. Ct. at 1293 (“For all inventions at some level
embody, use, reflect, rest upon, or apply laws of nature, natural
phenomena, or abstract ideas.”) Rather, the “directed to”
inquiry applies a stage-one filter to claims, considered in light
of the specification, based on whether “their character as a
whole is directed to excluded subject matter.” Internet Patents
Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir.
2015); see Genetic Techs. Ltd. v. Merial L.L.C., 2016 WL
1393573, at *5 (Fed. Cir. 2016) (inquiring into “the focus of the
claimed advance over the prior art”).
Enfish, LLCv. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016).
“In determining the eligibility of respondents’ claimed process for
patent protection under § 101, their claims must be considered as a whole.”
Diamond v. Diehr, 450 U.S. 175, 188 (1981). The question is whether the
claims as a whole “focus on a specific means or method that improves the
relevant technology” or are “directed to a result or effect that itself is the
abstract idea and merely invoke generic processes and machinery.” McRO,
Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314 (Fed. Cir.
2016).
In this case, we agree with the Examiner’s finding that the claims as a
whole are focused on “mathematical manipulation of the first and second
data set for the purpose of generating [computing] a value representing a de-
noised data set. As such, the claim limitations are similar to concepts
identified as abstract ideas by the Courts.” (Ans. 4.) Cf. In re TLI
Communications LLC Patent Litigation, 823 F.3d 607, 613 (Fed. Cir. 2016)
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(the claims’ focus “was not on an improved telephone unit or an improved
server.”) We also agree with the Examiner’s finding that the “generating an
image based on . . limitation of the claims
is merely generating an output in a format that may be viewed
by a user and does not add any unconventional steps that
confine the claim to a particular useful application. As such,
the limitation is drawn to insignificant extra-solution activity
and is insufficient to transform the abstract idea into patent
eligible subject matter.
(Ans. 5—6.)
Significantly More
Turning to the second step of the Alice analysis, because we determine
that the independent claims are directed to an abstract idea, the claims must
include an “inventive concept” in order to be patent-eligible, i.e., there must
be an element or combination of elements that is sufficient to ensure that the
claim in practice amounts to significantly more than the abstract idea itself.
We are not persuaded of Examiner error by Appellants’ argument that
the claims, even if directed to an abstract idea, recite something more than
any abstract idea. (Br. 12—13.) Appellants argue that the claims are directed
to “improving] seismic exploration by removing noise polluting and
diluting the primary signal in seismic data, the de-noised data being used to
generate an image of the surveyed underground formation.” (Id. at 12.) We
agree with the Examiner that “the claims do not set forth any limitations that
utilize the generated image in a manner that results in improvements to
seismic exploration.” (Ans. 10.) We further agree with the Examiner’s
finding that “merely generating an image alone does not improve seismic
exploration [and] this step is post-solution activity [that] does not add
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anything more than what is conventional in the art and, when considered as a
whole and individually, does not amount to significantly more than the
abstract idea.” (Id.) Appellants do not respond to the Examiner’s findings.
Identifying Abstract Ideas Beyond Existing Case Law
Appellants contend that the Examiner “cannot identify a concept
characterizing the claims as being an abstract idea unless that concept is
similar to a concept already found by the courts to be abstract.” (Br. 13-16.)
According to Appellants, the July 2015 Update and May 2016 Update
prohibit the Examiner from identifying abstract ideas beyond existing case
law. (Id. at 13—14.)
Appellants have not persuaded us of Examiner error. We agree with
the Examiner that citing to existing case law is not a requirement. (Ans. 10—
11.) In any event, Appellants acknowledge that the Examiner, in the July 5,
2016 Advisory Action (“Adv. Act.”), references Gottschalk v. Benson, 409
U.S. 63, 64 (1972). (Br. 11.) Specifically, the Examiner finds that, similar
to Benson, the claims merely describe manipulating information using
mathematical relationships:
the claimed method simply describes the concept of gathering
and combining data by reciting steps of organizing information
through mathematical relationships. The gathering and
combining merely employs mathematical relationships to
manipulate existing data to generate additional information in
the form of a “de-noised data set” without limit to any use of
the de-noised data set. This idea is similar to the basic concept
of manipulating information using mathematical relationships
(e.g., an algorithm for converting numerical representation),
which has been found by the courts to be an abstract idea.
Although the claims are not drawn to the same subject matter,
the abstract idea of converting numerical representation is
similar to the basic concept of using mathematical relationships
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(i.efj mathematical algorithms, mathematical relationships,
mathematical formulas and calculations without more) in, for
example, Benson.
(Adv. Act. 2—3, emphasis added.) Appellants further contend that the
claimed invention is different from Benson because the claimed attenuation
“is similar to truncating the data” and “the manner of truncating the data
depends on comparing it with another set of data, which is another aspect
that distinguishes the claimed inventions from Benson.” (Br. 15.)
Appellants’ contention is not persuasive. First, the claims do not recite
“truncating” data nor is the term found in the Specification. Second,
Appellants’ contention is mere attorney argument, which is unsupported by
factual evidence, and, thus is entitled to little probative value. In re Geisler,
116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705
(Fed. Cir. 1984).
Because independent claims 1,13, and 17 are directed to an abstract
idea and nothing in the claims adds an inventive concept, the claims are not
patent-eligible under § 101. Therefore, we sustain the Examiner’s rejection
of independent claims 1, 13, and 17 under 35 U.S.C. § 101, as well as
dependent claims 2, 4—12, 13—16, and 19—22, which depend on either claim
1, 13, or 17 and are not argued separately. (Br. 16—18.)
DECISION
We sustain the decision of the Examiner to reject claims 1, 2, 4—17,
and 19-22.
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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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