OOO Rock Flow Dynamics

Patent Trials and Appeals Board

Sep 25, 2020

2019003189 (P.T.A.B. Sep. 25, 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.
14/094,776 12/02/2013 OLGA ANDREEVNA CHESKIS 10052.2 5471
41729 7590 09/25/2020
Pavel Pogodin, Esq.
TransPacific Law Group
5245 AV ISLA VERDE APT 302
Carolina, PR 00979
EXAMINER
DINH, LYNDA
ART UNIT PAPER NUMBER
2865
NOTIFICATION DATE DELIVERY MODE
09/25/2020 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):
pavel@transpacificlaw.com
ppogodin@gmail.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte OLGA ANDREEVNA CHESKIS,
SEMEN LEONIDOVICH TREGUB, and
ANDREY SERGEEVICH KAZAROV
____________

Appeal 2019-003189
Application 14/094,776
Technology Center 2800
____________

Before MICHAEL P. COLAIANNI, JEFFREY R. SNAY, and
JANE E. INGLESE, Administrative Patent Judges.

SNAY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–6. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies OOO ROCK FLOW DYNAMICS as the real
party in interest. Appeal Br. 2.
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BACKGROUND
The subject matter on appeal relates to building a geological model of
an oil or other mineral deposit. Spec. ¶ 2. Claim 1 is illustrative:
1. A computer-implemented method for determining
a position of coordinates of a marker depth in well W for
building of a geological model of a deposit, the computer-
implemented method comprising:
1) determining a well W and wells located within a
specified circular neighborhood of the well W, a radius of the
specified neighborhood being R and a center of the specified
neighborhood being the well W;
2) determining values of a mark of a marker depth {z(i)},
i = 0, . . ., n, wherein n being an integer, {zi},i = 0, . . . ,n in
each well W and in the wells located within the specified
neighborhood of the well W;
3) evaluating a functional C in points where the value of
the marker depth {z(i)} is known;
4) composing gradient vectors in points where the value
of marker depth {z(i)} is known;
5) smoothing the gradient vector by replacing each
component of the gradient vector in the well W by a mean value
of components of gradient vector in the wells located within the
specified neighborhood of the well W with the radius R;
6) searching for a value of the functional C greater than a
previously found value of the functional C within a segment of
a specified length starting from the marker depth mark {z(i)} in
a direction of the gradient vector with a current value of marker
depth mark {z(i)} assumed determined if no such value is
found;
7) improving an obtained value of marker depth mark
{z(i)} by searching for a larger value of marker depth {z(i)}
within the specified step;
8) smoothing a gradient vector for the marker depth mark
{z(i)}, at which the functional C is maximal, by replacing each
component of the gradient vector in the well W by a mean value
of components of the gradient vector in wells in the
neighborhood with radius R reduced by a specified value;
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9) sorting the marker depth marks {z(i)} by depth; and
10) reiterating the steps 4)-10) of the method until a
larger value of functional C is found.
Appeal Br. 18–19 (Claims Appendix). Independent claim 3 recites a system
that includes a computer processor enabled to perform essentially the same
method as is recited in claim 1. Independent claim 5 recites a computer-
readable medium having instructions for performing the method of claim 1.
Each remaining claim on appeal depends from claim 1, 3, or 5.

REJECTION2
Claims 1–6 stand rejected under 35 U.S.C. § 101 as being directed to
patent-ineligible subject matter.

DISCUSSION
The Examiner rejects claims 1–6 under 35 U.S.C. § 101 as being
directed to a judicial exception—namely, an abstract idea without
significantly more. Final Act. 6. Appellant argues the claims as a group.
See Appeal Br. 9–12. In accordance with 37 C.F.R. § 41.37(c)(1)(iv), we
select independent claim 1 as representative, and decide the appeal based on
the representative claim alone. Having considered the Examiner’s findings
and Appellant’s arguments, we are not persuaded the Examiner reversibly
erred in rejecting claim 1 under 35 U.S.C. § 101.

2 Rejections based on 35 U.S.C. § 103(a) and double patenting were
withdrawn. See Ans. 3.
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A. Section 101
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part framework, described in Mayo and Alice.
Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., 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 (“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.”); see also 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.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (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.
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252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Court held that “a claim drawn to subject matter otherwise statutory does not
become nonstatutory simply because it uses a mathematical formula.”
Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as
nothing more than a process for molding rubber products and not as an
attempt to patent a mathematical formula.”). Having said that, the Court
also indicated that a claim “seeking patent protection for that formula in the
abstract . . . is not accorded the protection of our patent laws, and this
principle cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment.” Id. (citation omitted)
(citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that
an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.”).
If the claim is “directed to” an abstract idea, we turn to the second part
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 (internal quotation marks omitted). “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. (alterations in original) (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
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B. USPTO Section 101 Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Guidance”).3 “All USPTO personnel are, as a matter of internal agency
management, expected to follow the guidance.” Id. at 51; see also October
2019 Update at 1.
Under the Guidance and the October 2019 Update, we first look to
whether the 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) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP §§ 2106.05(a)–(c), (e)–(h)
(9th ed. Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).4
Guidance, 84 Fed. Reg. at 52–55.

3 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the Guidance. USPTO, October
2019 Update: Subject Matter Eligibility (the “October 2019 Update”)
(available at https://www.uspto.gov/sites/default/files/
documents/peg_oct_2019_update.pdf).
4 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See Guidance - Section III(A)(2), 84 Fed. Reg. at 54–
55.
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Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look, under
Step 2B, 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, 84 Fed. Reg. at 52–56.

Guidance Step 1
There is no dispute that claim 1 is within a statutory category. Claim
1 recites a method.

Guidance Step 2A, Prong 1
Under Step 2A of the Guidance, we first consider whether the
Examiner erred in determining that the claim recites a judicial exception.
The Examiner determined that claim 1 recites an abstract idea. Final Act. 5–
6. For the reasons explained below, we see no error in that determination.
The Guidance identifies mathematical concepts as belonging to one of
the enumerated groupings of abstract ideas. Guidance, 84 Fed. Reg. at 52.
In this case, claim 1 includes the following recitations: “3) evaluating a
functional C in points where the value of the marker depth {z(i)} is known;”
“4) composing gradient vectors;” “5) smoothing the gradient vector;” “6)
searching for a value of the functional C greater than a previously found
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value;” “7) improving an obtained value of marker depth mark {z(i)} by
searching for a larger value of marker depth {z(i)} within the specified
step;” “8) smoothing a gradient vector for the marker depth mark {z(i)};”
“9) sorting the marker depth marks {z(i)};” and “10) reiterating steps 4)-10)
of the method until a larger value of functional C is found.” There is no
dispute that each of the foregoing steps involves performing a mathematical
operation. See, e.g., Appeal Br. 10 (“[T]he present claims recite collecting
data using physical sensors and then processing the acquired data using a
mathematical algorithm.”). Accordingly, we conclude under Step 2A, Prong
1 of the Guidance that the claims recite the judicial exception of a
mathematical concept.

Guidance Step 2A, Prong 2
Having determined that the claims recite a judicial exception, our
analysis under the Guidance turns to determining whether there are
additional elements that integrate the exception into a practical application.
See MPEP §§ 2106.05(a)–(c), (e)–(h). Additional elements are found in
steps 1 and 2 of claim 1. In step 1, a group of wells is “determin[ed].” In
step 2, marker depth values are “determin[ed]” for each well identified in
step 1.
We determine that claim 1 does not recite additional elements that
integrate the judicial exception into a practical application. The recited
“determining” steps involve data gathering recited at a high level of
generality. See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354
(Fed. Cir. 2016); see also SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161,
1168 (Fed. Cir. 2018) (“As many cases make clear, even if a process of
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collecting and analyzing information is ‘limited to particular content’ or a
particular ‘source,’ that limitation does not make the collection and analysis
other than abstract.” (quoting Elec. Power Grp., 830 F.3d at 1353, 1355
(citing cases)). In this case, the foregoing steps, both individually and
collectively, merely constitute identifying a particular group of wells and
obtaining their marker depth values. The claims do not recite any particular
operation to be performed or equipment to be used in the recited
determination of wells and their marker depths. Rather, these data-gathering
steps encompass mental steps of visually observing a group of wells and
reading marker depth values corresponding to those wells. As such, these
determining steps in claim 1 do not “transform the nature of the claim into a
patent-eligible application.” See Alice, 573 U.S. at 217 (internal quotation
marks omitted); see also Guidance 84 Fed. Reg. at 55 n.24 (“USPTO
guidance uses the term ‘additional elements’ to refer to claim features,
limitations, and/or steps that are recited in the claim beyond the identified
judicial exception.” (emphasis added)).
Appellant contends the claims are indistinguishable from claims
involving digital check scanning at issue in U.S. Bancorp v. Solutran, Inc.,
CBM2014-00076, Paper 16 (PTAB August 7, 2014) because both “involve
first collecting data using sensors and then processing it.” Appeal Br. 10.
Appellant similarly argues the claims are indistinguishable from those
determined patent-eligible in Thales Visionix, Inc. v. United States, 850 F.3d
1343 (Fed. Cir. 2017). Id. at 10–11. However, claim 1 lacks any recitation
of a sensor, and Appellant does not direct us to any recitation that would
relate to digital check scanning. In Thales, the claims involved inertial
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sensors used in a non-conventional manner. Thales, at 1345. The instant
claims do not require sensors at all.
For the foregoing reasons, we determine that claim 1 does not
integrate the judicial exception into a practical application.

Guidance Step 2B
In Alice step two, we 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 patent-eligible subject
matter. Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l
Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014). “To save a patent at step two,
an inventive concept must be evident in the claims.” RecogniCorp, LLC v.
Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017). “An inventive concept
that transforms the abstract idea into a patent-eligible invention must be
significantly more than the abstract idea itself, and cannot simply be an
instruction to implement or apply the abstract idea on a computer.” Bascom
Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1349
(Fed. Cir. 2016). According to the Guidance, “simply append[ing] well-
understood, routine, conventional activities previously known to the
industry, specified at a high level of generality,” is indicated that an
inventive concept is absent. Guidance, 84 Fed. Reg. at 56.
In this context, we also look to see if the additional elements are more
than “well-understood, routine, [and] conventional” so as to amount to an
inventive concept. Conversely, we consider whether these additional
elements simply append “well-understood, routine, [and] conventional”
elements, particularly at a high level of generality, to the judicial exception.
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Appellant does not point to evidence of record that would tend to
show that the steps of “determining a well W and wells located within a
specified circular neighborhood of the well W,” and “determining values of
a mark of a marker depth” in claim 1 are more than well-understood, routine,
and conventional. To the contrary, the Specification acknowledges that
marker depths are read from existing conventional well log curves. Spec.
¶ 10. The Specification also states, “the various embodiments of the
invention as described may be implemented in the form of a software
running on a general purpose computer.” Id. ¶ 30. In the Reply Brief,
Appellant argues that all of the steps recited in claim 1 are “unconventional
elements,” based on the fact that the Examiner withdrew the previously
imposed rejection under 35 U.S.C. § 103(a). Reply Br. 4. This argument
also is not persuasive. A novel and non-obvious claim directed to a purely
abstract idea is, nonetheless, patent-ineligible. See Mayo, 566 U.S. at 89–90.
For the foregoing reasons, we determine that the additional elements
recited in claim 1 do not amount to significantly more than the abstract idea
itself.
For the reasons discussed above and by the Examiner, we are not
persuaded of reversible error in the Examiner’s rejection of representative
claim 1. Accordingly, the rejection of claims 1–6 under 35 U.S.C. § 101 is
sustained.

CONCLUSION
The Examiner’s decision rejecting claims 1–6 is affirmed.

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DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–6 101 1–6

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

AFFIRMED