Pei, Donghong et al.

Patent Trials and Appeals Board

Feb 7, 2020

14760142 - (D) (P.T.A.B. Feb. 7, 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.
14/760,142 07/09/2015 Donghong Pei 2013-IP-072302 U1 US 9316
142050 7590 02/07/2020
HALLIBURTON ENERGY SERVICES, INC.
C/O PARKER JUSTISS, P.C.
14241 DALLAS PARKWAY
SUITE 620
DALLAS, TX 75254
EXAMINER
YI, CHANGHYUN
ART UNIT PAPER NUMBER
2826
NOTIFICATION DATE DELIVERY MODE
02/07/2020 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):
docket@pj-iplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DONGHONG PEI,
ROBERT JASON GIBBS, and RAN ZHOU

Appeal 2019–001111
Application 14/760,142
Technology Center 2800
____________

Before JEFFREY T. SMITH, N. WHITNEY WILSON,
and MERRELL C. CASHION, JR., Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s Final decision to reject claims 1–20.1 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. Appellant identifies Halliburton Energy Services, Inc. as
the real party in interest. (Appeal Br. 2.)
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STATEMENT OF THE CASE
Claim 1 illustrates the subject matter on appeal and is reproduced
below:
1. A seismic data analysis system, comprising:
one or more seismic receivers that gather seismic data
from a plurality of positions in a borehole that penetrates a
formation;
memory that stores the seismic data; and
logic that analyzes the seismic data using a tilted
transversely isotropic (TTI) model based on simultaneous
inversion of asymmetric axis velocity (V0) and Thomsen
parameters, epsilon (ε), and delta (δ), the simultaneous
inversion of V0, ε, and δ including applying a Very Fast
Simulated Annealing (VFSA) process to values for V0, ε, and δ.

(Appeal Br. 15, Claims App.)

The following rejection is presented for our review: 2
Claims 1–20 are rejected under 35 U.S.C. § 101.
OPINION
After review of the respective positions Appellant and the Examiner
provide, we AFFIRM the Examiner’s rejection under 35 U.S.C. § 101.
Appellant relies on the same line of arguments to address the rejection
of independent claims 1, 11, and 17 and does not present separate arguments
for their respective dependent claims. (Appeal Br. 6–13.) Accordingly, we
select claims 1, 11, and 17 as representative of the claimed subject matter for

2 The complete statement of the rejection on appeal appears in the Final
Office Action, mailed February 8, 2018 (hereinafter “Final Act.”). (Final
Act. 2–5.)
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review on appeal for this rejection. Claims 2–10, 12–16, and 18–20 stand or
fall with their respective independent claim. 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that the subject matter of claim 1 is directed to the
abstract idea particularly the combination of data collection and analysis
utilizing mathematical concepts. (Ans. 3). The Examiner finds that the
subject matter of claims 11 and 17 is analogous to independent claim 1.
(Ans. 4–5). According to the Examiner, the subject matter of claim 1 is
analogous to organizing information through mathematical correlations
(Digitech Image Technologies, LLC v. Electronics for Imaging, Inc., 758
F.3d 1344 (Fed. Cir. 2014)), an algorithm for calculating parameters
indicating an abnormal condition (In re Grams, 888 F.2d 835, 836–37 (Fed.
Cir. 1989)), mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95
(1978)), and collecting information, analyzing it, and displaying certain
results of the collection and analysis (Electric Power Group, LLC v. Alstom
S.A., 830 F.3d 1350 (Fed. Cir. 2016)). The Examiner also determines that
claims 1, 11, and 17 do not include additional elements that are sufficient to
amount to significantly more than the judicial exception. (Ans. 3–5.)
In Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 134 S.Ct. 2347, 2355
(2014), the Supreme Court reiterated the following two-step analysis
(previously set forth in Mayo Collaborative Services v. Prometheus Labs.,
Inc., 132 S.Ct. 1289, 1300 (2012)) for distinguishing patents that claim
patent-ineligible laws of nature, natural phenomenon, and abstract ideas
from those that claim patent-eligible applications of those concepts:
First, we determine whether the claims at issue are directed to
one of those patent-ineligible concepts. If so, we then ask, what
else is there in the claims before us? [] We have described step
two of this analysis as a search for an “inventive concept”—i.e.,
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an element or combination of elements that is sufficient to
ensure that the patent in practice amounts to significantly more
than a patent upon the ineligible concept itself.

Alice, 134 S.Ct. at 2355.
The Office published revised guidance on the application of § 101.
USPTO’s January 7, 2019 Memorandum, 2019 Revised Patent Subject
Matter Eligibility Guidance (“Memorandum”), 84 Fed. Reg. 50.3 Under that
guidance, 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); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–
(h)).
Only if a claim recites a judicial exception and 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.
See generally Memorandum.

3 We recognize that the Memorandum was not available to the Examiner and
Appellant during the prosecution of the instant Application.
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With respect to the first step under Alice, we agree with the Examiner
that the claims fall under a statutory category, a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101. In this
case, the claims are directed to a method and a device. (Ans. 3.)
We now follow the Memorandum to analyze claims 1, 11, and 17 to
determine if they are directed to a patent-ineligible subject matter (Step 2A).
Applying the guidance set forth in the Memorandum, we conclude
that claims 1–20 do not recite patent-eligible subject matter.
Claim 11
We first address independent method claim 11. Claim 11 recites a
method for seismic data analysis comprising a step of “analyzing [] seismic
data using a tilted transversely isotropic (TTI) model based on simultaneous
inversion of an asymmetric axis velocity (V0) and Thomsen parameters,
epsilon (ε,), and delta (δ), the simultaneous inversion of V0, ε, and δ
including applying a Very Fast Simulated Annealing (VFSA) process to
values for V0, ε, and δ.
The step of analyzing the seismic data using a tilted transversely
isotropic (TTI) model based on simultaneous inversion of an asymmetric
axis velocity (V0) and Thomsen parameters, epsilon (ε,), and delta (δ), the
simultaneous inversion of V0, ε, and δ including applying a Very Fast
Simulated Annealing (VFSA) process to values for V0, ε, and δ is recites a
mathematical concept. According to the Specification, the TTI model is
optimized based on simultaneous inversion of V0, ε, and δ. Spec. 11. The
Specification also discloses that “the formation analysis module 272 may
cause the processor 256 to produce a seismic section from VSP walkaway
data, select a first arrival pick from the seismic section, calculate a first
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arrival time as a travel time from a seismic source to a geophone through the
TTI model, and determine values for V0, ε, and δ by minimizing the
difference between the first arrival pick and the calculated first arrival time.”
Id. (emphasis added); see also id. 12–13 (discussing equations used in the
optimization). Because these are mathematical calculations/analyses, this
step is recites a mathematical concept.

Claim 1
Independent claim 1 recites a seismic data analysis system comprising
one or more seismic receivers that gather seismic data, a memory that stores
the seismic data; and a logic that performs the seismic data analysis step of
claim 11. As the Examiner notes, claim 1 recites these components at a high
level of generality. Final Act. 3. The Specification describes the seismic
receivers in broad terms as traditionally used to detect and record direct or
reflected seismic waves for later analysis. Spec. 1. The Specification also
indicates that the memory may be a FLASH memory or other non-volatile
memory. Id. at 8. The claimed logic appears to be a program code/software
that is executable to perform the analysis of the seismic data. Appeal Br. 4.
These devices are merely configured so as to perform the method of
claim 11, which recites a judicial exception, i.e., mathematical concept, and
the system likewise also recites this judicial exception. Fundamentally, this
claim recites the same judicial exception, a mathematical concept, for
substantially the same reasons as provided above regarding claim 11.

Claim 17
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Independent claim 17 recites a non-transitory computer-readable
medium storing seismic data analysis software that, when executed,
performs the computer-implemented method corresponding to that of claim
11. As such, claim 17 recites the same judicial exception as claim 11—a
mathematical concept.
Accordingly, applying the guidance in the Memorandum, we conclude
that claims 1, 11 and 17 each recite an abstract idea, i.e., a mathematical
concept, and thus recite a judicial exception.

Appellant argues that independent claims 1, 11, and 17 are not a
patent ineligible abstract idea because:
the Claims are directed to a method, non-transitory computer-
readable mediums, and a system of seismic data analysis that
analyze seismic data gathered by seismic receivers in a
downhole using a tilted transversely isotropic (TTI) model,
parameters of which are simultaneously determined using a
Very Fast Simulated Annealing (VFSA) process. As such,
while the Claims may involve an abstract idea, they do not
recite it and thus are not directed to an abstract idea.

(Appeal Br. 9.)
We have considered Appellant’s arguments and are unpersuaded of
reversible error in the Examiner’s determination.
Based on the foregoing analysis, we have determined that the claims
recite a judicial exception. For the reasons discussed below, Appellant’s
argument that the claims may involve an abstract idea but, at the same time,
are not directed to an abstract idea lacks persuasive merit.
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Having determined that the subject matter of claims 1, 11, and 17
recites an abstract idea, we now consider under Step 2A (Prong 2)4 of the
Guidance whether the claim as a whole integrates the recited judicial
exception into a practical application of the exception. Guidance, 84 Fed.
Reg. at 54. “A claim that integrates a judicial exception into a practical
application will apply, rely on, or use the judicial exception in a manner that
imposes a meaningful limit on the judicial exception, such that the claim is
more than a drafting effort designed to monopolize the judicial exception.”
Id. When a claim recites a judicial exception and fails to integrate the
exception into a practical application, the claim is “directed to” the judicial
exception. Id. at 51.
Here, Appellant argues that “[a]s an ordered combination, the
limitations in the Claims provide, for example, an improvement to the field
of exploration seismology by enhancing the ability to analyze seismic data
and find an ideal site for an exploratory well. Appeal Br. 11.
Appellant has not directed us to portions of the Specification to
support the position that the claimed invention is an improvement to the
field of exploration seismology. The Specification lacks any description or
evidence as to how the field of exploration seismology is improved. The
Specification lacks sufficient detail about how the ability to analyze seismic
data is enhanced and how this analysis is utilized to improve to the field of
exploration seismology as argued by Appellant.

4 We acknowledge that some of these considerations may be properly
evaluated under Step 2 of Alice (Step 2B of Office Guidance). Solely for
purposes of maintaining consistent treatment within the Office, we evaluate
it under Step 1 of Alice (Step 2A of Office Guidance). See generally
Guidance, 84 Fed. Reg. 50.
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Appellant argues the claims amount to significantly more than the
abstract idea because the claims improve another technological field.
Appellants specifically states:
As an ordered combination, the limitations in the Claims
provide, for example, an improvement to the field of
exploration seismology by enhancing the ability to analyze
seismic data and find an ideal site for an exploratory well. By
optimizing a TTI model using a VFSA process and VSP
walkway data and using the optimized TTI model to analyze
seismic data, the seismic data can be analyzed to reveal
information about the structure and distribution of rock types
and their contents even in anisotropic formation.
(Appeal Br. 11 (citing Spec ¶¶ 42–44 and 54–55).)
To show that the invention is an improvement in the field of
exploration seismology, the disclosure must provide sufficient details such
that one of ordinary skill in the art would recognize the claimed invention as
providing an improvement. Compare McRO, Inc. v. Bandai Namco Games
Am. Inc., 837 F.3d 1299, 1314–16 (Fed. Cir. 2016) (the Specification
explained how the particular rules recited in the claim enabled the
automation of specific animation tasks), with Affinity Labs of Tex. v.
DirecTV, LLC, 838 F.3d 1253, 1264–65 (Fed. Cir. 2016) (the Specification
failed to provide details regarding the manner in which the invention
accomplished the alleged improvement); and MPEP § 2016.05(a).
The Specification lacks any description or evidence as to how the
field of exploration seismology is improved. Rather, the Specification
describes using seismic receivers to gather data was well-understood,
routine, conventional activity in the industry. (Spec. 1–2.) The
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Specification lacks sufficient detail about how the ability to analyze seismic
data is enhanced and how this analysis is utilized to improve to the field of
exploration seismology as argued by Appellant. (Appeal Br. 11.) We, thus,
find nothing in the claims which goes beyond the abstract idea to transform
the claim into eligible subject matter. Therefore, the additional elements
recited in independent claims 1, 11, and 17 do not provide “significantly
more” than the recited judicial exception and the recited abstract idea is not
integrated into a practical application.
We now turn to the step 2B under Alice to consider if there is an
inventive concept that is sufficient to ensure that the patent amounts to
significantly more than a patent on the patent-ineligible concept. Alice, 134
S.Ct. at 2355 (citing Mayo, 132 S.Ct. at 1294). This includes whether the
claims add a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field. Memorandum, 84
Fed. Reg. at 56.
Independent claim 11 only generally recites the use of a seismic
receivers that gather seismic data from a plurality of positions in a borehole
that penetrates a formation. As we note above, the Specification describes
the seismic receivers in broad terms as traditionally used to detect and record
direct or reflected seismic waves for later analysis. Spec. 1.
Independent claim 1 recites a seismic data analysis system comprising
one or more seismic receivers that gather seismic data, a memory that stores
the seismic data; and a logic that performs the seismic data analysis step of
claim 11. The Specification describes the seismic receivers in broad terms
as traditionally used to detect and record direct or reflected seismic waves
for later analysis. Spec. 1. The Specification also indicates that the memory
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may be a FLASH memory or other non-volatile memory. Id. at 8. The
claimed logic appears to a program code/software that is executable to
perform the analysis of the seismic data. Appeal Br. 4.
Independent claim 17 merely recites a non-transitory computer-
readable medium storing seismic data analysis software that, when executed,
performs the computer-implemented method corresponding to that of claim
11.
The independent and dependent claims do not include additional
elements that contain inventive concept that would amount to significantly
more than the judicial exception. As pointed out by the Examiner, the
limitations one or more seismic receivers, memory, and logic, taken alone or
as an ordered combination, are not considered significantly more since they
are recited at a high level of generality. (Ans. 2–3.) Furthermore, using
seismic receivers to gather data was well-understood, routine, conventional
activity in the industry. (Spec. 1–2.) Thus, Appellant has not established
reversible error in the Examiner’s determination that the subject matter of
claims 1, 11, and 17 lack additional elements that transforms the subject
matter of the claim into a patent-eligible application under the second step of
Alice. (Ans. 3.)
Appellant further argues
the independent [c]laims recite gathering seismic data using
specific tools, e.g., downhole seismic receivers that are
positioned inside a borehole, and analyzing the gathered
seismic data using a specific earth model, e.g., a TTI model,
which is optimized using a specific optimization process, e.g., a
VFSA process and VSP walkaway data. By reciting specific
tools and processes in gathering and analyzing seismic data, the
Claims do not merely recite the alleged abstract idea in isolation
but effectively integrates and ties the idea to a physical process
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of a seismic while drilling (SWD) and/or logging or
measurement while drilling (L/MWD). As such, the Claims
place meaningful limitations on the use of the alleged abstract
idea and, when viewed as a whole, these limitations amount to
significantly more than the alleged abstract idea.

(Appeal Br. 12.)

We are unpersuaded by these arguments. Appellant has not directed
us to limitations in the claims or descriptions in the Specification that
specifically describes meaningful limitations on the use of the abstract idea
that amount to significantly more than the abstract idea.
Accordingly, we conclude that claims 1–20 are directed to patent-
ineligible subject matter under 35 U.S.C. § 101.

CONCLUSION
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED