Ex Parte Van Manen et al

Board of Patent Appeals and Interferences

Aug 30, 2012

11458868 (B.P.A.I. Aug. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DIRK-JAN VAN MANEN,
JOHAN OLOF ANDERS ROBERTSSON, and ANDREW CURTIS
____________

Appeal 2010-007843
Application 11/458,868
Technology Center 3600
____________

Before LINDA E. HORNER, MICHAEL C. ASTORINO, and
JOHN W. MORRISON, Administrative Patent Judges.

MORRISON, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Dirk-Jan Van Manen, Johan Olof Anders Robertsson, and Andrew
Curtis (Appellants) seek our review under 35 U.S.C. § 134 of the
Examiner’s decision rejecting claims 1-21. Claims 22-54 have been
withdrawn. App. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

THE INVENTION
Appellants’ claimed invention relates to “surveying or remotely
detecting properties of the interior of a medium and, more particularly, to a
technique for eliminating the effects of surface-related waves in recorded
data.” Spec. 2, para. [002]. Claims 1 and 15 are the independent claims on
appeal. Claims 1 and 15 are illustrative of the claims on appeal and are
reproduced below.
1. A method for measuring interface waves in a survey,
comprising:
receiving at a plurality of planned survey locations
within a survey area an interface wavefield propagating
within the survey area;
generating interface wave data representative of the
received interface wavefield; and
constructing a Green's function between each of the
planned survey positions from the interface wave data.

15. An apparatus for use in surveying, comprising:
a plurality of interface wave sources positioned to
generate and propagate an interface wavefield within a
survey area;
a plurality of receivers positioned to receive the
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propagated interface wavefield and generate interface
wave data representative of the interface wavefield,
wherein either the interface wave sources or the
receivers are positioned at planned locations within the
survey area and the other one of the interface wave
sources and the receivers are positioned outside the
survey area at locations defining a perimeter enclosing
the survey area; and
means for recording interface wave data generated by
the receivers upon receipt of the interface wavefield.

THE REJECTIONS
Appellants seek review of the following rejections:
Claims 15, 16, 18, 20, and 21 are rejected under 35 U.S.C. § 102(b) as
being anticipated by WesternGeco (GB 2 383 414 A, published June 25,
2003).
Claim 19 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over WesternGeco and Muyzert (US 2005/0068850 A1, published Mar. 31,
2005).
Claim 17 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over WesternGeco and Hackett (US 4,223,399, issued Sep. 16, 1980).
Claims 1-14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over WesternGeco and Arnaud Derode et al., Recovering the
Green's Function From Field-Field Correlations in an Open Scattering
Medium (L), J. Acoust. Soc. Am., 113(6):2973-2976 (2003)(hereinafter
“Derode”).

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ANALYSIS
Anticipation by WesternGeco
Appellants argue claims 15, 16, 18, 20, and 21 as a group. App. Br.
10-12. We select independent claim 15 as the representative claim and
claims 16, 18, 20, and 21 stand or fall with claim 15. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2011).
Appellants assert that “[c]laim 15 recites that the sources or receivers
that are positioned outside the survey area are positioned ‘at locations
defining a perimeter enclosing the survey area’” and contend that
“WesternGeco does not teach this limitation.” App. Br. 10. Claim 15 is
directed to “[a]n apparatus for use in surveying” including “a plurality of
interface wave sources” and “a plurality of receivers.” While claim 15
includes limitations on the positioning of the interface wave sources and the
receivers relative to the survey area, the positioning of the interface wave
sources and the receivers does not affect the structure of either the interface
wave sources or the receivers.
The Examiner found the sources in Figures 2 and 3 are sufficient to
“enclose the survey area.” Ans. 8. To support this finding, the Examiner
cites to WesternGeco at, page 19, lines 6-8, which state “[i]t would in
practice be possible to embody the seismic surveying arrangements of
Figures 2 and 3 in a single seismic survey in which receivers were disposed
around a circular shot line 9 so as [to] give complete azimuthal coverage.”
Ans. 8. Based on this disclosure, we agree with the Examiner that
WesternGeco’s disclosure, including the combination of Figures 2 and 3 in a
single seismic survey, corresponds to the structural limitations with regard to
the interface wave sources and the receivers, as called for by claim 15.
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Appellants contend that:
WesternGeco teaches a technique in which
two complementary shoots, shown in Figure 2 and
Figure 3, are performed. They are complementary
in the sense that each is limited by a restricted
azimuthal coverage and that complete azimuthal
coverage is obtained only by combining the data
acquired from the two shoots.
Reply Br. 4. The Appellants’ contention is not persuasive for two reasons.
First, claim 15 does not include a limitation that the data must be collected in
a single shoot. It has long been established that unclaimed features cannot
impart patentability to claims. See In re Hiniker Co., 150 F.3d 1362, 1369
(Fed. Cir. 1998); and In re Self, 671 F.2d 1344, 1348 (CCPA 1982).
Second, we understand the disclosure on page 19 of WesternGeco that the
arrangements of Figures 2 and 3 can be embodied in a “single seismic
survey” to mean that the data is collected in a single shoot. Therefore, we
affirm the Examiner’s rejection of claims 15, 16, 18, 20, and 21.
Obviousness over WesternGeco and Muyzert
Addressing claim 19, the Examiner introduced Muyzert to remedy the
deficiency that WesternGeco does not specifically disclose the use of
“geophones.” Ans. 6. The Appellants counter with arguments directed
against anticipation of underlying independent claim 15. App. Br. 20-21.
Finding no deficiency in the rejection of claim 15, the Appellants’ argument
is not persuasive. For the reasons provided above, we affirm the rejection of
claim 19 as unpatentable over WesternGeco and Muyzert.

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Obviousness over WesternGeco and Hackett
Addressing claim 17, the Examiner introduced Hackett to remedy the
deficiency that WesternGeco does not specifically disclose the use of an
“impulse source.” Ans. 7. The Appellants counter with arguments directed
against anticipation of underlying independent claim 15. App Br. 21.
Finding no deficiency in the rejection of the claim 15, the Appellants’
argument is not persuasive. Therefore, we affirm the rejection of claim 17
as unpatentable over WesternGeco and Hackett.

Obviousness over WesternGeco and Derode
Appellants argue claims 1-14 as a group. App. Br. 12-19. We select
independent claim 1 as the representative claim and claims 2-14 stand or fall
with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
Claim 1 recites, “constructing a Green's function between each of the
planned survey positions from the interface wave data.” The Examiner
found that WesternGeco does not disclose the aforementioned limitation, but
that Derode remedies this deficiency with respect to claim 1. Ans. 5. More
specifically, the Examiner found that “Derode teaches recovery of Green's
function from field-field correlations (entire article) in a model of a system
similar in setup to that of WesternGeco” and determined that “[i]t would
have been obvious to one of ordinary skill in the art at the time the invention
was made to recover a Green's function from the interface wave data as is
taught by Derode for the advantage of removing the effects of diffuse
continuous noise, as taught in the last three columns of Derode.” Id.
The Appellants contend that “constructing a Green’s function between
each of the planned survey positions” required by claim 1 includes the
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following:
The evidence of record also establishes that, to one
of ordinary skill in the art, this involves (1) an
“indirect” measurement of the Green's function for
the medium during the survey wherein neither of
the points includes an active source, and (2) a
“direct” measurement of the Green's function taken
in which an active source in one location and one
or more receivers in the other locations. (van
Manen Declaration, ¶¶8-9)
The evidence of record furthermore
establishes that one ordinarily skilled in the art
would recognize that Derode et al. does not teach a
joint “direct” and “indirect” measurement. (van
Manen Declaration, ¶10). Since this is a
prerequisite to “constructing a Green's function
between each of the planned survey positions from
the interface wave data” as is recited in claim 1
(van Manen Declaration, ¶¶8-9), it follows that
Derode et al. cannot teach or suggest to those
ordinarily skilled in the art the subject limitation.

Reply Br. 5-6. In fully considering the Van Manen Declaration, we do not
agree with the Appellants’ proposed claim construction, i.e., that the claim 1
requires a “joint ‘direct’ and ‘indirect’ measurement.” First, we agree that
“constructing a Green’s function between each of the planned survey
positions” from the “interference wave field,” as required by claim 1,
includes an “indirect” measurement of the Green’s function. However, the
Appellants admit that the “direct” measurement of the Green’s function is
implied. See Van Manen Declaration ¶ 9 (emphasis added). In this case,
claim 1 does not require a direct measurement of the Green’s function.
Again, it has long been established that unclaimed features cannot impart
patentability to claims. See In re Hiniker Co., 150 F.3d at 1369; and In re
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Self, 671 F.2d at 1348. Furthermore, the Appellants have not provided
convincing evidence or argument that the same “direct” measurement of the
Green’s function would not also be implied into the Derode reference, which
the Appellants admit teaches an “indirect” measurement of the Green’s
function. See Van Manen Declaration ¶10. The Appellants’ argument that
claim 1 requires both “indirect” and implied “direct” measurement of the
Green’s function and Derode does not require both an “indirect” and implied
“direct” measurement of the Green’s function is not persuasive.

Derode is not misconstrued
The Appellants also argue that the Examiner’s reason to combine is in
error because it is based on a misconstruction of Derode as teaching
identifying noise sources. App. Br. 14. Appellants contend that “Derode
relies on certain statistical assumptions about the noise sources to produce
the emergence of the Green's function, namely: ‘noise can be considered as
coming from virtual point sources C, randomly distributed everywhere in the
medium and continuously generating uncorrelated white noises.’” App. Br.
14. We agree with the Examiner that Derode teaches that the Green’s
function can be recovered from the cross-correlation of the noise received in
A and B. Derode at p. 2975, second col. As such, an advantage to be gained
from modifying WesternGeco with the teaching of Derode, would be to
remove the effects of continuous noise. As such, we find that the
Examiner’s reason to combine is based on rational underpinnings.
Therefore, the Appellants’ argument is not persuasive.

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Derode does not teach away
The Appellants further argue that Derode teaches away because “[t]he
Office's misconstruction of Derode et al would render it inoperable for its
purpose since it would not, in fact, produce the outcome envisioned by
Derode et al. under that construction.” App. Br. 16. However, the
Appellants fail to follow with any evidence or argument that would
specifically show or explain how Derode would be rendered inoperable. For
the reasons discussed supra we disagree with Appellants’ contention that the
Office misconstrued Derode. Therefore, the Appellants’ arguments that
Derode teaches away are not persuasive.

Examiner considered the invention as a whole
The Appellants further argue that the Examiner failed to consider the
invention “as a whole.” App. Br. 17. The Appellants offer that the
measurement of the Green’s function is different than that described in
Derode because:
It aims to do so by “measuring interface waves”
indirectly (van Manen Declaration, ¶17) for the
purpose of (adaptively) subtracting them from
directly measured Green's functions. This is
claimed as such in claim 22 in terms of “correcting
survey data acquired in the survey area for the
interface waves”. It is also implied in claim 1 from
the phrase “between each of the planned survey
positions” since, as described above, it necessarily
implies construction of Green's functions between
receiver pairs. (van Manen Declaration, ¶7)
App. Br. 18. This line of reasoning is not persuasive. The plain meaning of
the claim element “constructing a Green’s function” as required by claim 1
reads on the Derode reference, as discussed supra. The addition of
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“implied” limitations from the Van Manen Declaration is not persuasive.
Again, it has long been established that unclaimed features cannot impart
patentability to claims. See In re Hiniker Co., 150 F.3d at 1369; and In re
Self, 671 F.2d at 1348. Thus, we believe that the Examiner correctly
considered the invention as a whole.

Office correctly weighed the evidence of record
Considering the evidence of record, including the Van Manen
Declaration, the Appellants have failed to provide sufficient evidence to
overcome the Examiner’s determination that claims 1-14 are obvious in
view of the combination of WesternGeco and Derode. The Van Manen
Declaration (1) does not establish that certain claim limitations, notably the
direct measurement of the Green’s function, are implied in the plain
meaning of claim 1, and (2) does not persuade us that the same limitation
would not be implied to the Derode reference, which would alternately
render the claimed subject matter obvious.
Therefore, for the above reasons, we affirm the rejection of claim 1,
and of claims 2-13.

DECISION
We AFFIRM the decision of the Examiner to reject claims 1-21.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
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AFFIRMED

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