Kun Jiao et al.

Patent Trials and Appeals Board

Feb 24, 2020

14292487 - (D) (P.T.A.B. Feb. 24, 2020)

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.
14/292,487 05/30/2014 KUN JIAO IS13.3672-US-NP 1052
28116 7590 02/24/2020
WesternGeco L.L.C.
10001 Richmond Avenue
IP Administration Center of Excellence
Houston, TX 77042
EXAMINER
BLOSS, STEPHANIE E
ART UNIT PAPER NUMBER
2864
NOTIFICATION DATE DELIVERY MODE
02/24/2020 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):
SMarckesoni@slb.com
USDocketing@slb.com
jalverson@slb.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
Ex parte KUN JIAO, RICHARD TIMOTY COATES, WEI HUANG,
ALAN SCHIEMENZ, and DENES VIGH
_______________
Appeal 2019-000255
Application 14/292,487
Technology Center 2800
_______________
Before LINDA M. GAUDETTE, KAREN M. HASTINGS, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL1

1 In our Decision, we refer to the Specification (“Spec.”) of Application
14/292,487 filed May 30, 2014; the Final Office Action dated Nov. 16, 2017
(“Final Act.”); the Advisory Action dated Feb. 2, 2018 (“Adv. Act.”); the
Appeal Brief filed June 18, 2018 (“Appeal Br.”); the Examiner’s Answer
dated Aug. 9, 2018 (“Ans.”); and the Reply Brief filed Oct. 9, 2018 (“Reply
Br.”).
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Application 14/292,487

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Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1, 3, 5–13, 15–19, and 21, which
constitute all the claims pending in Application 14/292,487.3 We have
jurisdiction under 35 U.S.C. § 6(b).
For the reasons set forth below, we REVERSE.
STATEMENT OF THE CASE
The ’487 Application relates to methods, non-transitory computer-
readable media, and systems for seismic data processing. Spec. ¶ 4; Appeal
Br. 31–37 (Claims App.). According to the Specification, seismic
exploration may utilize a seismic energy source to generate acoustic signals
that propagate into the earth along curved paths, and refract, and partially
reflect off subsurface seismic reflectors (e.g., interfaces between subsurface
layers). Spec. ¶ 3. Propagating signals are recorded by sensors (e.g.,
receivers or geophones located in seismic units) laid out in a seismic spread
covering a region of the earth’s surface. Spec. ¶ 3. The recorded signals
may then be processed to yield a seismic survey. Spec. ¶ 3.
Claim 1, reproduced below, illustrates the claimed subject matter:
1. A method for seismic data processing, comprising:

2 We use the word “Appellant” to refer to “Applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies WesternGeco L.L.C. as the real party in
interest. Appeal Br. 2.
3 The Final Office Action includes claim 14 as pending. Final Act. 1.
Appellant canceled claim 14 in an Amendment After Final filed Jan. 16,
2018. The Feb. 2, 2018 Advisory Action does not include claim 14 as a
pending clam. Adv. Act. 3.
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(a) receiving an earth model that comprises elastic
properties;
(b) receiving seismic data for a region of interest,
wherein the seismic data were acquired in a seismic survey;
(c) determining at least one exclusion criterion that
provides one or more rules for selecting shot points in the
acquired seismic data;
(d) determining sparse seismic data using statistical
sampling based at least in part on the at least one exclusion
criterion and the acquired seismic data;
(e) determining simulated seismic data based at least in
part on the earth model for the region of interest and shot points
corresponding to the sparse seismic data;
(f) determining an objective function that represents a
mismatch between the sparse seismic data and the simulated
seismic data;
(g) determining a gradient of the objective function;
(h) determining a smoothed gradient of the objective
function based at least in part on at least one of the at least one
exclusion criterion;
(i) performing a search based at least in part on the
smoothed gradient wherein performing a search comprises
using a search direction and a step size found by a line search
method;
(j) updating values of the elastic properties of the earth
model based at least in part on the search to generate an updated
earth model wherein the step size corresponds to an amount of
change for elastic properties as model parameters in the updated
earth model; and
(k) based at least in part on the updated earth model,
determining a presence of hydrocarbons in the region of
interest.
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Appeal Br. 31–32 (Claims App.) (letter designations of limitations added to
aid in discussion).
REJECTION
On appeal, the Examiner maintains the rejection of claims 1, 3, 5–13,
15–19, and 21 under 35 U.S.C. § 101 as directed to non-statutory subject
matter.4 Adv. Act. 4–15.
PRINCIPLES OF LAW
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 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216
(2014). In determining whether a claim falls within an excepted category,
we are guided by the Supreme Court’s two-step framework, described in
Alice (see id. at 217–18), and Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66, 75–77 (2012). In accordance with that
framework, we first determine what concept the claim is “directed to.” See
Alice, 573 U.S. at 219.

4 The Final Office Action included rejections of the pending claims under 35
U.S.C. §§ 112(a), 112(b), and 102, as well as under § 101. Final Act. 5–9.
Appellant amended the claims in a Jan. 16, 2018 Amendment under the
After Final Consideration Pilot Program. The Examiner thereafter issued the
Feb. 2, 2018 Advisory Action maintaining only the rejection under § 101.
Adv. Act. 4–17.
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Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (id. at 219–20; Bilski v. Kappos, 561 U.S. 593, 611
(2010)); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95
(1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 69
(1972)). Concepts determined to be patent eligible include physical and
chemical processes, such as “molding rubber products” (Diamond v. Diehr,
450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth,
vulcanizing India rubber, smelting ores” (id. at 182 n.7 (quoting Corning v.
Burden, 56 U.S. 252, 267–68 (1854))); and manufacturing flour (Benson,
409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
If a claim is “directed to” an abstract idea, we turn to the second step
of the Alice and Mayo framework, where “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.”
Alice, 573 U.S. at 221. “A claim that recites an abstract idea must include
‘additional features’ to ensure ‘that the [claim] is more than a drafting effort
designed to monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at
77).
In January 2019, the PTO published revised guidance on the
application of Section 101. USPTO, 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). Under
the Guidance, we first look to whether a claim recites (1) any judicial
exceptions, including certain groupings of abstract ideas (i.e., mathematical
concepts, certain methods of organizing human activity such as a
fundamental economic practice, or mental processes) (“Guidance Step 2A,
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Prong One”), and (2) additional elements that integrate the judicial exception
into a practical application (see MPEP § 2106.05(a)–(c), (e)–(h)) (“Guidance
Step 2A, Prong Two”). Only if a claim (1) recites a judicial exception and
(2) does not integrate that exception into a practical application, do we then
look to whether the claim (3) adds a specific limitation beyond the judicial
exception that is not “well-understood, routine, conventional” in the field
(see MPEP § 2106.05(d)), or (4) simply appends well-understood, routine,
conventional activities previously known to the industry, specified at a high
level of generality, to the judicial exception (“Guidance Step 2B”).
DISCUSSION
Because all independent claims (1, 15, and 21) recite the same steps,
we limit our discussion to claim 1, which we find representative of all of the
claims.
The Examiner rejects claim 1 under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter. Adv. Act. 4–15.
Appellant argues that claim 1 is directed to an improvement of an
existing technology. Appeal Br. 8. Specifically, Appellant contends that
claim 1 as a whole improves the technological process of seismic
imaging/surveying as to an earth model and recites an “inventive concept.”
Id. at 23. Appellant argues that seismic data are utilized in a new way to
improve an earth model, which is a type of subsurface map of the earth. Id.
Appellant contends that claim 1 is directed to an improvement in a statutory
technological process that produces an elastic property earth model from
seismic data acquired via a seismic survey. Reply Br. 4.

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Claim 1 recites a method, which is a process, which is a statutory
category of invention.
Judicial Exception — Guidance Step 2A, Prong One
As indicated above, under Guidance Step 2A, Prong One, we consider
whether claim 1 recites a judicial exception to the statutory categories of
patent-eligible subject matter, including one of the following groupings of
abstract ideas: (1) mathematical concepts, e.g., mathematical relationships,
mathematical formulas or equations, and mathematical calculations; (2)
mental processes, e.g., concepts performed in the human mind, including
observations, evaluations, judgments, and opinions; and (3) certain methods
of organizing human activity. See Guidance, 84 Fed. Reg. at 52.
The Specification describes full-waveform inversion (FWI) as a
process of forward modeling a seismic response of the subsurface using an
estimated elastic property earth model. Sped. ¶ 26. According to the
Specification, in FWI, a mismatch between observed seismic data and
simulated seismic data is measured, while an estimated earth model may be
optimized through an iterative method until the mismatch satisfies
predetermined stopping criteria. Id. Techniques described in the
Specification are directed to updating an earth model using statistical
sampling of the observed seismic data to perform full-wave inversion. Id.
The Supreme Court has established that a mathematical concept
without more does not constitute patent-eligible subject matter. See Parker
v. Flook, 437 U.S. 584, 587–96 (1978) (“Here it is absolutely clear that
respondent’s application contains no claim of patentable invention.
. . . Respondent’s application simply provides a new and presumably better
method for calculating alarm limit values.”);
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Radio Corp. of Am., 306 U.S. 86, 94 (1939) (“[A] scientific truth, or the
mathematical expression of it, is not patentable invention. . . . ”).
Claim 1, in part, recites the following limitations: (c) “determining at
least one exclusion criteria . . . ;” (d) “determining sparse seismic data . . . ;”
(e) “determining simulated seismic data . . . ;” (f) “determining an objective
function . . . ;” (g) “determining a gradient of the objective function;” (h)
“determining a smoothed gradient of the objective function . . . ;” (i)
“performing a search based at least in part on the smoothed gradient wherein
performing a search comprises using a search direction and a step size found
by a line search method;” and (j) “updating values of the elastic properties of
the earth model based at least in part on the search to generate an updated
earth model wherein the step size corresponds to an amount of change for
elastic properties as model parameters in the updated earth model.” Appeal
Br. 31–32 (Claims App.).
Limitations (c)–(j) recite mathematical relationships and calculations,
which are mathematical concepts, which are, in turn, abstract ideas.
Limitations (c)–(h) each recite a step of “determining.” Appeal Br. 31
(Claims App.). In each of these steps “determining” involves applying
mathematical relationships and calculations. Limitation (c) recites
“determining at least one exclusion criterion that provides one or more rules
for selecting shot points in the acquired seismic data.” Appeal Br. 31
(Claims App.). The Specification describes exclusion criteria as providing
rules (mathematical relationships and calculations) for selecting shot points
in the acquired seismic data. Spec. ¶ 5. Limitation (d) recites “determining
sparse seismic data using statistical sampling based at least in part on the at
least one exclusion criterion and the acquired seismic data,” which requires
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mathematical relationships and calculations (statistical sampling). See
Appeal Br. 31 (Claims App.). Limitation (e) recites “determining simulated
seismic data based at least in part on the earth model for the region of
interest and shot points corresponding to the sparse seismic data,” which
requires using mathematical relationships and calculations to simulate data.
See id. Limitation (f) recites “determining an objective function that
represents a mismatch between the sparse seismic data and the simulated
seismic data.” Id. The Specification describes the “objective function” in
terms of Equation 1 and mathematical relationships and calculations. See
Spec. ¶¶ 46–47. Limitations (g) and (h) recite “determining a gradient of the
objective function” and “determining a smoothed gradient of the objective
function,” respectively. “Determining a gradient” requires use of
mathematical relationships and calculations.
Limitation (i) recites “performing a search based at least in part on the
smoothed gradient wherein performing a search comprises using a search
direction and a step size found by a line search method.” Appeal Br. 31
(Claims App.). A line search method involves use of mathematical
relationships and calculations in an iterative approach to find a local
minimum of an objective function.5
Limitation (j) recites “updating values of the elastic properties of the
earth model based at least in part on the search to generate an updated earth
model wherein the step size corresponds to an amount of change for elastic
properties as model parameters in the updated earth model.” Appeal Br. 31–

5 Nocedal, Jorge & Wright, Stephen J. (2006). Numerical Optimization, 2nd
ed., New York, NY: Springer Science + Business Media, LLC (19–20).
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32 (Claims App.). This limitation involves use of mathematical
relationships and calculations to update values.
Based on the above analysis, claim 1 recites mathematical
relationships and calculations, which fall within the “mathematical
concepts” grouping of abstract ideas. Guidance, 84 Fed. Reg. at 52.
Therefore we proceed to Step 2A, Prong Two.
Integration into a Practical Application — Guidance Step 2A, Prong
Two
Having determined that claim 1 recites the abstract ideas of
mathematical concepts, we next look to determine whether the claim recites
“additional elements that integrate the judicial exception into a practical
application.” Guidance, 84 Fed. Reg. at 53–54. According to the Guidance,
even if a claim recites any one of three groupings of abstract ideas, the claim
is still not “directed to” a judicial exception (abstract idea), and thus is
patent-eligible, if “the claim as a whole integrates the recited judicial
exception into a practical application of that exception.” Guidance, 84 Fed.
Reg. at 53. Limitations that are indicative of “integration into a practical
application” include: (1) improvements to the functioning of a computer, or
to any other technology or technical field (see MPEP § 2106.05(a)); (2)
applying the judicial exception with, or by use of, a particular machine (see
id. § 2106.05(b)); (3) effecting a transformation or reduction of a particular
article to a different state or thing (see id. § 2106.05(c)); and (4) applying or
using the judicial exception in some other meaningful way beyond generally
linking the use of the judicial exception to a particular technological
environment, such that the claim as a whole is more than a drafting effort
designed to monopolize the exception (see id. § 2106.05(e)). See Guidance,
84 Fed. Reg. at 54–55 (“Prong Two”). In contrast, limitations that are not
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indicative of “integration into a practical application” include: (1) adding the
words “apply it” (or an equivalent) with the judicial exception, merely
including instructions to implement an abstract idea on a computer, or
merely using a computer as a tool to perform an abstract idea (see MPEP
§ 2106.05(f)); (2) adding insignificant extra-solution activity to the judicial
exception (see id. § 2106.05(g)); and (3) generally linking the use of the
judicial exception to a particular technological environment or field of use
(see id. § 2106.05(h)). See Guidance, 84 Fed. Reg. at 54–55 (“Prong Two”).
Besides the abstract ideas, claim 1 recites the additional elements of
(a) “receiving an earth model that comprises elastic properties;” and (b)
“receiving seismic data for a region of interest, wherein the seismic data
were acquired in a seismic survey.” These limitations recite the generic
function of receiving data, which amounts to data gathering, which is
insignificant extra-solution activity. See Parker v. Flook, 437 U.S. 584, 590
(1978) (“The notion that post-solution activity . . . can transform an
unpatentable principle into a patentable process exalts form over substance.
A competent draftsman could attach some form of post-solution activity to
almost any mathematical formula.”).
Finally, claim 1 recites “based at least in part on the updated earth
model, determining a presence of hydrocarbons in the region of interest.”
Appeal Br. 32 (Claims App.). This limitation causes claim 1 to integrate the
abstract ideas it recites into a practical application: by the recited steps,
improving the use of seismic data acquired in a seismic survey to determine
the presence of hydrocarbons in a specific region, which is not an abstract
idea. The incorporation of the claimed steps improve the ability to find
hydrocarbons. As a result, claim 1 is not “directed to” a judicial exception,
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but rather to a practical application of a judicial exception, and is patent
eligible subject matter. We need not reach Step 2B of the Guidance.
Because all of the pending claims contain the limitation that
incorporates the recited abstract ideas into a practical application, all of the
pending claims recite patent-eligible subject matter.
We do not sustain the rejection of claims 1, 3, 5–19, and 21 under 35
U.S.C. § 101.
CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 5–13,
15–19, 21 101 Eligibility
1, 3, 5–13,
15–19, 21
REVERSED