PGS Geophysical AS

Patent Trials and Appeals Board

Apr 17, 2020

14619487 - (D) (P.T.A.B. Apr. 17, 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.
14/619,487 02/11/2015 Gert-Jan Adriaan van Groenestijn PGS-14101-US-ORG1 5264
136849 7590 04/17/2020
Brooks, Cameron & Huebsch, PLLC
1201 Marquette Avenue South
Suite 400
Minneapolis, MN 55403
EXAMINER
SEVEN, EVREN
ART UNIT PAPER NUMBER
2812
NOTIFICATION DATE DELIVERY MODE
04/17/2020 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):
docketing@pgs.com
pgs.docketing@bipl.net
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GERT-JAN ADRIAAN VAN GROENESTIJN
____________

Appeal 2019-003011
Application 14/619,487
Technology Center 2800
____________

Before DONNA M. PRAISS, MONTÉ T. SQUIRE, and
JENNIFER R. GUPTA, Administrative Patent Judges.

SQUIRE, Administrative Patent Judge.

DECISION ON APPEAL1

Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final decision rejecting claims 1–30, which are all of the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 In this Decision, we refer to the Specification filed Feb. 11, 2015 (“Spec.”);
Final Office Action dated Mar. 1, 2018 (“Final Act.”); Advisory Action
dated July 27, 2018 (“Advisory Act.”); Amended Appeal Brief filed
Sept. 12, 2018 (“Appeal Br.”); Examiner’s Answer dated Jan. 8, 2019
(“Ans.”); and Reply Brief filed Mar. 5, 2019 (“Reply Brief”).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies PGS Geophysical AS as the real
party in interest. Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The invention relates to marine seismic survey techniques and
systems, including a method for generating high-resolution seismic images
of subterranean formations, such as reservoirs containing oil and mineral
deposits, for quantitative seismic interpretation and improved reservoir
monitoring. Spec. ¶¶ 2, 13. According to the Specification, the method
includes receiving seismic data indicative of a subterranean formation from
a plurality of seismic receivers, performing a plurality of interpolations on
the received seismic data, performing a plurality of primary estimations on
the received seismic data, and combining the interpolations and primary
estimations to generate a seismic image that is better indicative of the
subterranean formation. Spec. ¶¶ 13, 15, 19, Fig. 5; Abstract.
Independent claim 1 illustrates the subject matter on appeal and is
reproduced below from the Claims Appendix to the Appeal Brief:
1. A method, comprising:
receiving, by a machine, seismic data measured by a
plurality of seismic receivers based on operation of a plurality of
seismic sources, wherein the received seismic data is indicative
of a subterranean formation;
performing, by the machine, a first interpolation on the
received seismic data for a missing trace at a source-receiver
combination position;
performing, by the machine, a first primary estimation on
the first interpolated seismic data, wherein output of the first
primary estimation includes:
estimated primaries; and
estimated multiples;
performing, by the machine, a second interpolation on the
output of the first primary estimation; and
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performing, by the machine, a second primary estimation
on second interpolated seismic data, wherein output of the
second primary estimation includes:
reestimated primaries; and
reestimated multiples; and
generating a seismic image based on the reestimated
primaries and reestimated multiples that is better indicative of
the subterranean formation than the received seismic data.
Appeal Br. 20 (key disputed claim language italicized and bolded).
Independent claims 3 and 29 recite methods that include claim language
similar to claim 1. Id. at 21–22, 28–29.
Independent claim 13 recites a system (Appeal Br. 24–25) and
independent claim 22 recites a non-transitory machine-readable medium (id.
at 27) and, likewise, includes claim language similar to claim 1.
REJECTION ON APPEAL
On appeal, the Examiner maintains (Ans. 3) the following rejection:
Claims 1–30 are rejected under 35 U.S.C. § 101 because the claimed
invention is directed to a judicial exception (i.e., a law of nature, a natural
phenomenon, or an abstract idea) without significantly more. Final Act. 3.
OPINION
Having considered the respective positions advanced by the Examiner
and Appellant in light of this appeal record, and for the reasons stated below,
we reverse the Examiner’s rejection under 35 U.S.C. § 101.
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A. 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. 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 Supreme 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 (1853))); 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
Supreme 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.”). The
Supreme 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. (citing Benson
and Flook).
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 (citation 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.
(quoting Mayo, 566 U.S. at 77).
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. USPTO, 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
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2019) (“2019 Revised Guidance”).3 Consistent with the 2019 Revised
Guidance and the October 2019 Update, we 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
2019 Revised Guidance, 84 Fed. Reg. at 52, 55–56.
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

3 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility
(“October 2019 Update”) (available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df).
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 2019 Revised Guidance - Section III(A)(2), 84
Fed. Reg. 54–55.
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(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
2019 Revised Guidance, 84 Fed. Reg. at 56.
B. Examiner’s Findings and Conclusion
The Examiner rejects claims 1–30 under 35 U.S.C. § 101 as being
directed to a judicial exception (i.e., a law of nature, a natural phenomenon,
or an abstract idea) without significantly more. Final Act. 3–5; Ans. 3–5.
The Examiner determines claim 1 is directed to and constitutes an abstract
idea because it includes ideas identified as abstract in court decisions and is
analogous to collecting, displaying, and manipulating data. Final Act. 4
(citing Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332
(Fed. Cir. 2017) and Elec. Power Grp. v. Alstom, S.A., 830 F.3d 1350 (Fed.
Cir. 2016)); see also Ans. 3 (“The claims are directed to the abstract idea of
gathering, analyzing and outputting data.”). In particular, the Examiner
determines that the “interpolation” and “estimation” recitations of the claim
are elements of a mathematical algorithm, which has long since been
identified as an abstract idea. Ans. 4.
The Examiner further determines claim 1 does not include additional
elements other than the abstract idea sufficient to make the claim as a whole
amount to significantly more than the abstract idea itself. Final Act. 5;
Ans. 4–5. In particular, the Examiner determines the “generating a seismic
image based on the reestimated primaries and reestimated multiples that is
better indicative of the subterranean formation than the received seismic
data” element does not add significantly more to the claim because it
consists of “displaying certain results of the calculation” and thus amounts to
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merely outputting data from mathematical calculations. Ans. 4 (citing
cases).
The Examiner also determines the “receiving, by a machine, seismic
data measured by a plurality of seismic receivers based on operation of a
plurality of seismic sources, wherein the received seismic data is indicative
of a subterranean formation” element does not add significantly more to the
claim because it amounts to merely data gathering and collection. Final
Act. 4–5; Ans. 3, 5. The Examiner finds that the “sensors are not in any
particular arrangement that may be unconventional or unique” and “the
specification does not reveal any specialized equipment for gathering the
seismic data, manipulating/analyzing the data, or outputting the data.”
Final Act. 5; see also Ans. 5 (finding the recited “machine is . . . a general
purpose processor or computer” and “that gathering data by seismic survey
techniques is well-known, routine and conventional”) (citing Spec. ¶¶ 2–3).
B. Appellant’s Contentions
In response to the Examiner’s § 101 rejection, Appellant presents
substantive arguments for the patentability of independent claims 1, 3, 13,
22, and 29 as a group and relies on the same arguments for the patentability
of dependent claims 2, 4–12, 14–21, 23–28, and 30. Appeal Br. 7; see also
Reply Br. 5 (requesting “withdrawal of the § 101 rejection of the
independent claims and those claims that depend therefrom”).
Appellant argues the Examiner’s § 101 rejection should be reversed
because the claims are not directed to an abstract idea. Appeal Br. 7.
Appellant further argues that, even if the claims recite an abstract idea, the
claims recite additional elements that taken together amount to significantly
more than the abstract idea. Id. at 15 (arguing the claims “contain an
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inventive concept sufficient to transform the nature of the claim into a
patent-eligible application.”); see also Reply Br. 4 (arguing the “additional
elements in each independent claim integrate the alleged judicial exception
into a practical application”).
Appellant contends that, in contrast to the claims found patent
ineligible in Intellectual Ventures and Electric Power, the claims presented
in this case add significantly more than merely collecting, analyzing, and
displaying data. Appeal Br. 8–9. Rather, Appellant contends the claims
involve transformations of the data and recite additional elements, for
example, “generating a seismic image that is better indicative of the
subterranean formation” that taken together amount to significantly more
than an abstract idea. Id. at 8–9, 13, 15; see also Reply Br. 5 (arguing the
claims “improve the technical field of reflection seismology by generating
an improved seismic image that is better indicative of a subterranean
formation”).
In particular, Appellant contends
the additional elements use the alleged judicial exception
to improve the technical field of reflection seismology by
generating an improved seismic image that is better
indicative of a subterranean formation, which can be
useful, for example, to locate hydrocarbons.
Reply Br. 5; Appeal Br. 15 (arguing the claims “apply a new technique . . .
for analyzing seismic data to generate a new and improved seismic image
that is better indicative of a subterranean formation”); see also Appeal Br. 18
(explaining “[t]he generation of the image is an integral part of the claim”).
C. Analysis
The weight of the evidence supports Appellant’s arguments. Thus, for
the reasons discussed below, we determine claims 1–30 are not directed to a
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judicial exception because, although the claims recite an abstract idea, they
recite additional elements that integrate the recited abstract idea into a
practical application. For purposes of our analysis, we focus on claim 1.
1. Guidance Step 1
Under Step l, we consider whether the claimed subject matter falls
within the four statutory categories set forth in § 101, namely a process,
machine, manufacture, or composition of matter. 2019 Revised Guidance,
84 Fed. Reg. at 53–54; see 35 U.S.C. § 101. Claim 1 recites a “method”
comprising a series of steps and, thus, falls within the process category. We
therefore proceed to Step 2A Prong One of the analysis.
2. Guidance Step 2A Prong One
Under Step 2A Prong One, we evaluate whether the claim recites a
judicial exception, i.e., an abstract idea, a law of nature, or a natural
phenomenon. 2019 Revised Guidance, 84 Fed. Reg. at 54; see Alice, 573
U.S. at 216. The 2019 Revised Guidance synthesizes the key concepts
identified by the courts as abstract ideas into three primary subject-matter
groupings: mathematical concepts, certain methods of organizing human
activity (e.g., a fundamental economic practice), and mental processes. 84
Fed. Reg. at 52.
Claim 1 recites, among other things, the following steps:
“performing . . . a first interpolation on the received seismic data for a
missing trace at a source-receiver combination position” and
“performing . . . a first primary estimation on the first interpolated seismic
data.” Appeal Br. 20 (Claims Appendix). The Specification explains that
the “interpolation” step is performed, for example, using a differential
normal move out (NMO) technique, which is a mathematical operation
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performed on the seismic data. Spec. ¶¶ 19–21. The Specification further
explains that the “primary estimation” step is performed, for example, using
estimation of primaries by inversion (EPSI), which is likewise a
mathematical operation performed on the seismic data. Id. ¶¶ 18–19, 21.
The “interpolation” and “primary estimation” recitations of claim 1 are
therefore mathematical calculations, which correspond to mathematical
concepts identified as an abstract idea in the revised guidance. 2019 Revised
Guidance, 84 Fed. Reg. at 52; see also Diehr, 450 U.S. at 191 (“A
mathematical formula as such is not accorded the protection of our patent
laws.”).
Thus, under Step 2A Prong One, we determine claim 1 recites an
abstract idea that falls within the mathematical concepts grouping. The mere
fact, however, that claim 1 recites an abstract idea in the form of
mathematical concepts does not automatically render the claim patent
ineligible. Diehr, 450 U.S. at 187 (“A claim drawn to subject matter
otherwise statutory does not become nonstatutory simply because it uses a
mathematical formula.”). We therefore proceed to Step 2A Prong Two of
the analysis.
3. Guidance Step 2A Prong Two
Under Step 2A Prong Two, we must (a) identify whether there are any
additional elements recited in the claim beyond the judicial exception and
(b) evaluate those additional elements individually and in combination to
determine whether they integrate the exception into a practical application.
2019 Revised Guidance, 84 Fed. Reg. at 54–55. According to the 2019
Revised Guidance, when a claim recites a judicial exception and fails to
integrate the exception into a practical application, the claim is “directed to”
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the judicial exception. Id. at 51. The claim may integrate the judicial
exception into a practical application when, for example, it reflects an
improvement to technology or a technical field. Id. at 55.
Here, in addition to the interpolation and primary estimation steps
discussed above, claim 1 recites the following elements:
receiving, by a machine, seismic data measured by a
plurality of seismic receivers based on operation of a plurality of
seismic sources, wherein the received seismic data is indicative
of a subterranean formation . . . and
generating a seismic image based on the reestimated
primaries and reestimated multiples that is better indicative of the
subterranean formation than the received seismic data.
Appeal Br. 20 (Claims Appendix).
When we consider these additional elements in combination with the
other recited elements of claim 1, we determine the additional elements
integrate the recited abstract idea into a practical application. In particular,
considering the “seismic data measured by a plurality of seismic receivers
based on operation of a plurality of seismic sources, wherein the received
seismic data is indicative of a subterranean formation” and “generating a
seismic image based on the reestimated primaries and reestimated multiples
that is better indicative of the subterranean formation than the received
seismic data” elements in combination with the interpolation and primary
estimation recitations of the claim, we determine the claim as a whole
involves a particular combination of seismic measurement devices, i.e.,
seismic receivers and seismic sources, and a particular method of operating
the seismic measurement devices to obtain seismic data, including for
receiving seismic data indicative of subterranean formations and processing
the seismic data in a certain way, which are integrated into a practical
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application that produces the recited “seismic image” that is better indicative
of a subterranean formation in marine seismic surveys.5 That is, the
additional elements recited in claim 1 taken together apply the method, in a
meaningful way, such that it is more than a drafting effort designed to
monopolize the mathematical concepts exception. See MPEP § 2106.05(e).
Claim 1 is analogous to the claims found patent-eligible in Thales
Visionix Inc. v. United States, 850 F.3d 1343 (Fed. Cir. 2017), in which
mathematical concepts were used to improve a particular technology. See
Thales, 850 F.3d at 1348–1349 (finding patent eligibility upon considering
“claims directed to a new and useful technique for using sensors to more
efficiently track an object on a moving platform”). See also MPEP
§ 2106.05(a)(II) (“The courts have also found that improvements in
technology beyond computer functionality may demonstrate patent
eligibility”). Similar to the claims found patent eligible in Thales, as
Appellant maintains, claim 1 recites a new and useful technique that

5 See, e.g., Spec. ¶ 2 (describing benefit of “[h]igh-resolution seismic images
of a subterranean formation . . . for quantitative seismic interpretation and
improved reservoir monitoring”), ¶ 3 (“The seismic receivers thereby
measure a wavefield that was initiated by the actuation of the seismic
source.”), ¶ 13 (“Marine seismic survey techniques can be used to obtain or
enhance these images.”), ¶ 14 (describing a “plurality of seismic receivers”
and “a plurality of nodes near or on the water bottom”), ¶ 15 (describing
generation of an acoustic “wavefield” based on measured seismic signals
and “an image of the subsurface can be constructed from the measured
reflections”), ¶ 19 (disclosing “combining interpolation into the primary
estimation, such that each of the two techniques can make use of the
information generated by the other” and “reduce[d] computational and/or
labor costs by combining interpolation and primary estimation”), ¶ 72
(disclosing “shallow water data processing may be improved as compared to
previous methodologies”).
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involves a particular combination of seismic receivers and seismic sources,
receiving seismic data from those devices, and processing the seismic data
received in a specific new way to generate an improved seismic image that is
better indicative of a subterranean formation that provides a technological
improvement in the field. See Appeal Br. 15 (stating the claims “apply a
new technique [of c]ombining interpolation into the primary estimation[] for
analyzing seismic data to generate a new and improved seismic image that is
better indicative of a subterranean formation”); Reply Br. 5 (stating the
claims “improve the technical field of reflection seismology by generating
an improved seismic image that is better indicative of a subterranean
formation”); see also Spec. ¶ 14 (disclosing the claimed method provides
“advantages . . . with reference to seismic receivers for marine geophysical
prospecting”). “That a mathematical equation is required to complete the
claimed method and system does not doom the claim[] to abstraction.”
Thales, 850 F.3d at 1349.
Claim 1 is also analogous to the claims found patent eligible in SiRF
Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319, 1331–33 (Fed. Cir. 2010).
In SiRF, the claims recited a method for calculating the position of a GPS
receiver by providing pseudo ranges and making various mathematical
estimates. Id. at 1332. Our reviewing court determined that a GPS receiver
is a machine and is integral to each claim at issue. Id. The court further
determined that the GPS receiver in the claims “places a meaningful limit on
the scope of the claims.” Id. at 1332–1333. Like the GPS receiver in SiRF,
claim 1 requires “a plurality of seismic receivers” and the “operation of a
plurality of seismic sources” to obtain seismic data indicative of a
subterranean formation (Spec. ¶¶ 2, 3, 13–15), which are machines integral
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to the claim. As Appellant explains (Appeal Br. 13–14), the recited seismic
receivers and seismic sources are “physical objects” without which the
claimed method cannot be performed. These additional elements, like the
GPS receiver in SiRF, place a meaningful limit on the scope of claim 1, and
when considered in combination with the other elements recited in the claim,
integrate the recited abstract idea of claim 1 into a practical application.
Because claim 1 integrates the recited abstract idea into a practical
application, we determine that claim 1 is not “directed to” an abstract idea.6
For similar reasons, we determine independent claims 3, 13, 22, and 29,
which recite limitations commensurate with those of claim 1, and dependent
claims 2, 4–12, 14–21, 23–28, and 30 are not directed to an abstract idea.
Accordingly, we reverse the Examiner’s rejection of claims 1–30
under 35 U.S.C. § 101.
CONCLUSION
In summary:
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–30 101 Subject Matter Eligibility 1–30

REVERSED

6 Because we have determined that claim 1 is not directed to a judicial
exception, we need not proceed to Step 2B of the 2019 Revised Guidance.