Ex Parte Rebel et al

Patent Trial and Appeal Board

Mar 28, 2018

13530307 (P.T.A.B. Mar. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/530,307 06/22/2012 Estelle REBEL
11171 7590 03/30/2018
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404
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.
0336-070-2/100176 1028
EXAMINER
PARK,HYUND
ART UNIT PAPER NUMBER
2865
NOTIFICATION DATE DELIVERY MODE
03/30/2018 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):
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 ESTELLE REBEL and JULIEN MEUNIER 1
Appeal2017-005746
Application 13/530,3072
Technology Center 2800
Before JEFFREY T. SMITH, MICHAEL P. COLAIANNI, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-21. We have jurisdiction under 35 U.S.C. § 6.
Appellants' invention relates generally to methods and systems and,
more particularly, to mechanisms and techniques for locating microseismic
events underground. (Spec. Jr 2). Claim 1 illustrates the subject matter on
appeal and is reproduced from the Claims Appendix to the principal Brief.
1 These are the names of the identified inventors of the appealed application.
2 According to the Appeal Brief, the real party in interest is CGGVERIT AS
SERVICES SA. (See App. Br. 2).
Appeal2017-005746
Application 13/530,307
1. A method for locating a microseismic event taking place
in a subsurface of the earth, the method comprising:
receiving recorded seismic data S( t, Re) acquired by a plurality
of receivers as a function of time t and a position Re;
receiving a reference signal model SiMo(t, Re) that corresponds
to seismic data recorded by the plurality of receivers if an event
occurs at an injection point in the subsurface;
time correlating the recorded seismic data S(t, Re) with the
reference signal model SiMo(t, r) to determine correlated
seismic data DMSS;
calculating a detection curve for each of plural cells in a given
volume in the subsurface of the earth based on the correlated
seismic data DMSS; and
determining a seismic location in the volume of the
micro seismic event based on a largest value of maximums of
the detection curves calculated for various points of the given
volume in the subsurface.
REJECTION AT ISSUE3
The Examiner has rejected claims 1-21under35 U.S.C. § 101 for
being directed to non-statutory subject matter. (Final Act. 2-3).
OPINION4
We have reviewed Appellants' arguments in the Briefs, the
Examiner's rejections, and the Examiner's response to Appellants'
3 The Examiner withdrew the rejections under 35 U.S.C. §§ 102 and 103.
(Ans. 3).
4 Appellants present arguments for independent claims 1. (App. Br. 6-17).
Appellants do not present separate substantive arguments that sufficiently
address independent claims 12 and 21 or dependent claims 2-11and13-20.
(See generally App. Br.). Our analysis applies to all the independent claims
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Application 13/530,307
arguments. Appellants' arguments have not persuaded us of error in the
Examiner's determination that the claims recite non-statutory subject matter.
Appellants argue the claimed invention is not directed to fundamental
economic practices, and the decision of Alice cannot be analogized to the
claimed invention. (App. Br. 9). Appellants further argue the claimed
invention is not directed to a judicial exception and, even if taken as directed
to a judicial exception, the claimed invention amounts to significantly more
than the judicial exception itself. (App. Br. 9--10).
The Supreme Court reiterated the framework set out in Mayo
Collaborative Services, v. Prometheus Labs., Inc., 132 S.Ct. 1289 (2012),
for "distinguishing patents that claim ... abstract ideas from those that claim
patent-eligible applications of those concepts." Alice Corp. Pty. Ltd., v. CLS
Bank International, 134 S.Ct. 2347, 2355 (2014). Assuming that a claim
nominally falls within one of the statutory categories of machine,
manufacture, process, or composition of matter, the first step in the analysis
is to determine if the claim is directed to a law of nature, a natural
phenomenon, or an abstract idea (judicial exceptions). If so, the second step
is to determine whether any element or combination of elements in the claim
is sufficient to transform the nature of the claim into a patent eligible
application, that is, to ensure that the claim amounts to significantly more
than the judicial exception.
and we limit our discussion to independent claim 1 which we select as
representative of the rejected claims.
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Application 13/530,307
Claim 1
With respect to the first step of the Alice analysis, Appellants argue
that independent claim 1 "is directed to a method for physically locating a
microseismic event taking place in a subsurface of the earth." (App Br. 12).
The Examiner finds that claim 1 is directed to steps of data collection
and implementation of abstract ideas on a processor. (Final Act. 13; Ans. 8-
9). Specifically, the Examiner finds the claimed invention does not go
beyond collecting data and performing analysis using abstract ideas on a
processor. (Final Act. 13; Ans. 9).
We concur with the Examiner that independent claim 1 is directed to
data collection and implementation of abstract ideas on a processor. The
Federal Circuit has explained that, in determining whether claims are patent-
eligible under Section 101, "the decisional mechanism courts now apply is
to examine earlier cases in which a similar or parallel descriptive nature can
be seen-what prior cases were about, and which way they were decided."
Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841F.3d1288, 1294 (Fed.
Cir. 2016). The Federal Circuit also noted in that decision that "examiners
are to continue to determine if the claim recites (i.e., sets forth or describes)
a concept that is similar to concepts previously found abstract by the courts."
Amdocs, 841 F.3d at 1294 n.2 (citation omitted). Our reviewing court has
said that "merely presenting the results of abstract process of collecting and
analyzing information without more (such as identifying a particular tool for
presentation) is abstract as an ancillary part of such collection and analysis."
Elec. Power Grp. LLC v. Alstom S.A., 830 F.3d 1350, 1353-54 (Fed. Cir.
2016) (claims reciting the combination of the abstract-idea processes of
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Application 13/530,307
gathering and analyzing information of a specified content and then
displaying the results, without any particular assertedly inventive technology
for performing those functions, are directed to an abstract idea); id. at 1354
(treating "analyzing information by steps people go through in their minds,
or by mathematical algorithms, without more, as essentially mental
processes within the abstract-idea category").
Claim 1 recites: receiving data (seismic data), (time correlating the
recorded seismic data), adjusting the data (calculating a detection curve for
each of plural cells in a given volume in the subsurface of the earth) and
analyzing the data (determining a seismic location in the volume of the
microseismic event based on a largest value of maximums of the detection
curves calculated for various points of the given volume in the subsurface).
We consider claim 1 to be directed to an abstract concept of collecting and
analyzing data similar to that held to be abstract in Electric Power Group.
While Appellants argue the claimed invention recites specific steps to
be performed, and applies to specific areas of technology with tangible, real
world analogs, such as analyzing a map of the maxima of the detection
curves to identify a location of the maximum as the actual location of the
micro-seismic event, (App. Br. 14), the language of the independent claim 1
does not recite any step of identifying the actual location of the micro-
seismic device.
With respect to the second step of the Alice analysis, Appellants argue
the claimed invention is an improvement in the field of using recorded
seismic data to locate microseismic events occurring in the subsurface.
(App. Br. 15). As such, Appellants assert the limitations are directed to
significantly more than an abstract concept. (App. Br. 15).
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Application 13/530,307
The Examiner finds that claim 1 does not recite significantly more
than the abstract concept as the system does not go beyond collecting data
and performing analysis using abstract ideas on a processor. (Final Act. 14;
Ans. 9-10)
We concur with the Examiner, and we do not find that the claim
recites significantly more than the abstract concept. Appellants' arguments
do not direct us to any element or combination of elements in the claim
sufficient to transform the nature of the claim into a patent eligible
application, that is, to ensure that the claim amounts to significantly more
than the judicial exception. Instead, Appellants argue the claimed invention
represents an improvement in the field of using recorded seismic data to
locate microseismic events occurring in the subsurface as a result, for
example, of fracturing. However, a patent-ineligible abstract idea is not
transformed into a patent-eligible invention by "limiting the use of an
abstract idea 'to a particular technological environment."' Alice, 134 S. Ct.
at 2358, quoting Bilski v. Kappas, 561 U.S. 593, 610-11 (2010). As
discussed above, this is just a method of gathering and manipulating data.
Appellants do not identify nor adequately explain what additional features
amount to significantly more than a patent upon the ineligible concept itself.
While Appellants argue that the claim does not preempt subject matter
by attempting to patent any specific mathematical relationships or formulas,
nor does it attempt to patent any general ones (App. Br. 18-19), the
Examiner determined the claims are primarily directed to abstract ideas, with
the remaining additional elements directed to a conventional data collection
activity and usage of a generic processor. Ans. 9. Appellants acknowledge
that the claimed invention is directed to a method of obtaining recorded
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Application 13/530,307
seismic data, acquiring associated models, time correlating the recorded
seismic data with the reference signal model, calculating a detection curve
and determining a seismic location in the volume of the microseismic event
based on a largest maximum of detection curves. App. Br. 18. However,
Appellants do not adequately explain why the claimed invention does not
preempt any specific mathematical relationships or formulas, or any general
ones.
For the reasons stated above, and the reasons presented by the
Examiner, we do not consider the independent claims to recite significantly
more to transform the abstract idea to patent-eligible subject matter and we
sustain the rejections of claims 1-21under35 U.S.C. § 101.
ORDER
The rejections of claims 1-21under35 U.S.C. § 101 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.
AFFIRMED
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