Ex Parte Yarus et al

Patent Trial and Appeal Board

Sep 28, 2017

13805241 (P.T.A.B. Sep. 28, 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.
13/805,241 02/28/2013 Jeffrey Yarns 061429-0973099 9064
59891 7590 10/02/2017
KTT PATRTrK TOWNSFND fr STOrKTON TIP- HAT T TRTTRTON
EXAMINER
1100 PEACHTREE STREET GEBRESILASSIE, KIBROM K
SUITE 2800
ATLANTA, GA 30309 ART UNIT PAPER NUMBER
2128
NOTIFICATION DATE DELIVERY MODE
10/02/2017 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):
ipefiling@kilpatricktownsend.com
KT S Docketing2 @ kilpatrick. foundationip .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFREY YARUS, GENBAO SHI,
and RICHARD L. CHAMBERS
Appeal 2017-004817
Application 13/805,2411
Technology Center 2100
Before DAVID M. KOHUT, KAMRAN JIVANI, and SCOTT E. BAIN,
Administrative Patent Judges.
JIVANI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review, under 35 U.S.C. § 134(a), of the
Examiner’s final decision rejecting claims 1—20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Landmark Graphics
Corporation, a subsidiary of Halliburton Energy Services, Inc. App. Br. 4.
Appeal 2017-004817
Application 13/805,241
STATEMENT OF THE CASE
“[T]he present invention relates to an automated process for
computing a default three-dimensional (‘3D’) variogram model using a
vertical experimental variogram and a horizontal experimental
variogram.” Spec. 13.
Claim 1 is illustrative and reproduced below with bracketed material
added.
1. A method for computing a variogram model, which
comprises:
selecting input data and grid data, the input data comprising at
least well log data and secondary data;
processing the input data using a computer processor to apply a
normal score transform to the input data or to standardize the
input data;
calculating a vertical experimental variogram using i) the well
log data after it is processed using the computer processor; ii) a
default vertical unit lag distance; and iii) a default number of lags
for the vertical experimental variogram;
calculating horizontal experimental variograms using i) the
secondary data after it is processed using the computer; ii) a
default horizontal unit lag distance; and iii) a default number of
lags for the horizontal experimental variogram; and
reducing cycle time for the computer processor by auto-fitting
the vertical experimental variogram and the horizontal
experimental variogram to form the variogram model, which
represents a default 3D variogram model.
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Application 13/805,241
The Rejections2
The Examiner rejects claims 1—20, under 35 U.S.C. § 101, as directed
to a judicial exception of patent eligible subject matter. Final Act. 6—7
(Dec. 5,2015).
The Examiner rejects claims 1—20, under 35 U.S.C. § 103(a), as
obvious over Van Bemmel et al., (US 2002/0019728; Feb. 14, 2002;
hereinafter “Van Bemmel”) and Touati et al., (US 2009/0110242; Apr. 30,
2009; hereinafter “Touati”). Final Act. 8—13.
ANAFYSIS
Appellants argue all claims together. App. Br. 8. Accordingly, we
select claim 1 as representative. 37 C.F.R. 41.37(c)(l)(iv) (Jan. 2015). We
have considered the Examiner’s rejections in light of Appellants’ arguments
in the Appeal Brief and the Reply Brief, as well as the Examiner’s Answer
thereto. We are not persuaded by Appellants’ arguments for the reasons set
for the below.
Ineligible Subject Matter
The United States Supreme Court has identified a two-step framework
for determining whether claimed subject matter is judicially-excepted from
patent eligibility under § 101. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134
S.Ct. 2347, 2355 (2014). In Alice, 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
2 The Examiner has withdrawn rejections under 35 U.S.C. § 112. Ans. 2.
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concepts.” Id. 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.
With respect to step one of the Alice analysis, the Examiner concludes
claim 1 is directed to the abstract idea “of organizing information through
mathematical relationship.” Final Act. 6—7. The Examiner elaborates that
claim 1 is directed to an abstract idea because the claimed “idea is similar to
the basic concept of manipulating information using mathematical
relationship (e.g. converting numerical representation in Benson), which has
been found by the courts to be an abstract idea.” Id. Our reviewing court
instructs 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 (Israel) Ltd. v. Openet Telecom, Inc.,
841 F.3d 1288, 1294 n.2 (Fed. Cir. 2016) (citation omitted). The Examiner
has compared claim 1 to prior cases (Final Act. 6—7) and concluded claim 1
is directed to an abstract idea. Appellants do not dispute the Examiner’s
findings with respect to step one. App. Br. 13. Based on the record before
us, therefore, Appellants do not persuade us that the Examiner has erred with
regard to step one of the Alice analysis.
Regarding step two, Appellants argue “additional elements presented
by amendment in [claim 1 take it] beyond any alleged abstract idea and
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Application 13/805,241
demonstrate an improvement in the functioning of the computer itself and an
improvement to another technology/technical field-either of which
demonstrate patent eligibility.” App. Br. 13. In particular, Appellants assert
the claimed reducing processor cycle time “tie[s] the mathematical operation
of forming a default 3D variogram model to the improved functioning of the
computer (reduced cycle time, resulting in faster computation time.” Id.
(citing Spec. 140). Thus, Appellants’ contend claim 1 recites a
technological improvement not only “to the functioning of the computer
itself, but also . . . [to] the technology of variogram modeling.” Id.', Reply
Br. 2.
We are not persuaded by Appellants’ argument regarding an alleged
improvement in computer functioning. Claim 1 is directed to processing
data to calculate vertical and horizontal variograms and fitting these
variograms together to form a variogram. The claimed reduction in
processor cycle time is not an improvement to the technical field of
computer processor design or operation, but instead is merely the result of
using a generic computer to automate the otherwise manual process of fitting
vertical and horizontal variograms together. Our reviewing court has “made
clear that mere automation of manual processes using generic computers
does not constitute a patentable improvement in computer technology.”
Credit Acceptance Corp. v. Westlake Svcs., 2016-2001, at 19 (Fed. Cir. June
9, 2017). Like the claims in Credit Acceptance, “the recited generic
computer elements ‘are invoked merely as a tool.’” Id. (citing Enflsh, LLC
v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016)); see also Versata Dev.
Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334 (Fed. Cir. 2015) (collecting
cases).
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We similarly are not persuaded by Appellants’ argument regarding an
alleged improvement in variogram modeling. “A process that employs
mathematical algorithms to manipulate existing information to generate
additional information is not patent eligible.” Digitech Image Technologies,
LLC v. Electronics for Imaging, Inc., 758 F.3d 1344 (2014) (citing Parker v.
Flook, 437 U.S. 584 (1978) (“If a claim is directed essentially to a method of
calculating, using a mathematical formula, even if the solution is for a
specific purpose, the claimed method is nonstatutory”). Appellants fail to
show how the reduction in processor cycle time does not result merely from
implementing the presented abstract idea. See Elec. Power Grp., LLC
v. Alstom S.A., 830 F.3d 1350, 1353-54 (Fed. Cir. 2016) (“[M]erely
presenting the results of abstract processes 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.”).
Accordingly, we sustain the Examiner’s 35 U.S.C. § 101 rejections of
claims 1—20 for the reasons set forth above.
Obviousness
Appellants contend the Examiner errs in rejecting claim 1 as obvious
because: unlike the cited art, claim 1 describes “a more efficient process to
determine an intelligent-default for a variogram” (App. Br. 15); the
Examiner does not find in Van Bemmel the claimed default vertical lag
distance and number of lags (id. at 16); “the Examiner failed to address
where the prior art describes reducing cycle time for the computer
processor” (id. at 17); and “Van Bemmel teaches away from being modified
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by Touati in the manner suggested by the Examiner” {id. at 17; Reply Br. 4—
5.)
We are not persuaded by Appellants’ arguments. Rather, we agree
with, and adopt as our own, the Examiner’s findings and reasons set forth in
support of the obviousness rejections. We further emphasize the following.
First, the Examiner correctly states the “more efficient process” and
“intelligent-default” that Appellants describe are not claimed. Ans. 4—5.
Thus, Appellants’ argument is not commensurate with the scope of claim 1.
Second, the Examiner identifies teachings of the claimed default vertical lag
distance and number of lags {id. at 5—6), which Appellants do not rebut {see
Reply Br. 5—6). Similary, the Examiner finds that Van Bemmel’s teaching
that “a reduction factor of two orders of magnitude may be achieved par
[0019] ... is analogous to the reducing cycle time of the computer as
claimed” {id. at 7—8) and Appellants do not rebut this finding, {see Reply Br.
5—6). Thus, Appellants’ argument does not respond to the Examiner’s
findings in support of the rejection. Third, Appellants’ teaching away
argument is unpersuasive because it is not fully developed. Appellants fail
to identify in the record before us a teaching of Van Bemmel that would
have discouraged an ordinarily skilled artisan from employing Touati’s
automatic variogram fitting, thereby causing the artisan to “be led in a
direction divergent from the path that was taken by the applicant.” In re
Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006) (citations omitted).
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejections
of claims 1—20.
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DECISION
We affirm the Examiner’s decisions rejecting claims 1—20.
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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