POLARCUS DMCC et al.

Patent Trials and Appeals Board

Jul 31, 2020

2020000625 (P.T.A.B. Jul. 31, 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.
15/311,208 11/15/2016 Erik GOD¿Y 16964-1116-02-US-010 1014
90042 7590 07/31/2020
Melcher Patent Law PLLC
1101 Connecticut Ave. N.W.
Suite 450
Washington, DC 20036
EXAMINER
BREIER, KRYSTINE E
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
07/31/2020 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):
melcher@melcherpatentlaw.com
melcherlaw@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERIK GODOY
Appeal 2020-000625
Application 15/311,208
Technology Center 3600
Before STEFAN STAICOVICI, BRETT C. MARTIN, and
JEREMY M. PLENZLER, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 16–20 and 23–31.2 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 the real party in interest as POLARCUS
DMCC. Appeal Br. 1.
2 The Examiner indicates that claims 21 and 22 are allowed and claim 32 is
objected to. Final Act. 1, 12.
Appeal 2020-000625
Application 15/311,208

2
CLAIMED SUBJECT MATTER
The claims are directed to a seismic streamer for underwater towing.
Claim 16, reproduced below, is illustrative of the claimed subject matter:
16. A seismic streamer for underwater towing at a towing
speed in ice-free or wholly or partially icy water, the streamer
comprising:
birds spaced along the seismic streamer, the streamer
including the birds and any other equipment connected to the
seismic streamer has negative buoyancy, the birds have
adjustable wings that can be set so that the birds during
movement in the water apply an upward or downward force on
the seismic streamer; and
buoyant bodies spaced along the seismic streamer
configured for water to flow around the buoyant bodies during
towing underwater, the buoyant bodies are connected to the
seismic streamer by spacer elements, wherein the seismic
streamer including the birds, the buoyant bodies with associated
spacer elements and the any other equipment together have
positive buoyancy so that when the streamer is stationary the
seismic streamer rises towards the surface until the buoyant
bodies reach the surface and the seismic streamer remains
underwater by a length of the spacer elements to avoid damage
to the seismic streamer from floating ice and avoid hydrostatic
damage to the seismic streamer from sinking, and when the
seismic streamer is moving through the water the birds submerge
the buoyant bodies underwater.
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Application 15/311,208

3
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Silvey US 4,075,967 Feb. 28, 1978
Olivier US 6,016,286 Jan. 18, 2000
Hovland US 8,570,829 B2 Oct. 29, 2013
Gagliardi US 9,535,182 B2 Jan. 3, 2017
Toennessen US 2009/0092004 A1 Apr. 9, 2009

REJECTIONS
Claims 16, 18, 20, 24, 26, 27, and 29–31 are rejected under 35 U.S.C.
§ 103 as being unpatentable over Gagliardi and Olivier.
Claim 17 is rejected under 35 U.S.C. § 103 as being unpatentable over
Gagliardi, Olivier, and Silvey.
Claims 19, 23, and 28 are rejected under 35 U.S.C. § 103 as being
unpatentable over Gagliardi, Olivier, and Toennessen.
Claim 25 is rejected under 35 U.S.C. § 103 as being unpatentable over
Gagliardi, Olivier, and Hovland.
OPINION
Claims 16, 18, 20, 24, and 31
Appellant argues claims 16, 18, 20, 24, and 31 as a group. Appeal Br.
7–16. We select claim 16 as representative. Claims 18, 20, 24, and 31 stand
or fall with claim 16. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Gagliardi teaches each limitation recited in
claim 16, other than “birds spaced along the seismic streamer.” Final Act.
5–6 (citing, e.g., Fig. 9A). The Examiner finds that “Olivier teaches birds
spaced along the seismic streamer” and reasons that “[i]t would have been
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Application 15/311,208

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obvious . . . to modify the system of Gagliardi with the birds of Olivier since
such a modification would have improved the depth control.” Id. at 6 (citing
Olivier 1:31–34).
Appellant asserts that “G[a]gliardi does not specifically show any
drawings depicting floats attached to streamers by a spacer element.”
Appeal Br. 15 (internal quotations omitted). As the Examiner clearly
explains, however, Gagliardi teaches streamers coupled to flotation devices
200A–D. Ans. 7 (citing Gagliardi 9:6–11). The cited portion of Gagliardi
explains that “floatation devices 200A-D can support other types of sources,
such as . . . streamers.” Gagliardi 9:6–11. Appellant does not dispute any
other finding relied on by the Examiner in the rejection of claim 16.
In response to the Examiner’s proposed modification, Appellant
contends that “the bird of Olivier is ice resistant and constructed to contact
ice” and “the ice resistant bird of Olivier would be mounted where the depth
control devices 218 are mounted in Gagliardi,” which “results in a structure
in which the ice resistant bird of Olivier can contact the ice as it was
constructed for.” Appeal Br. 9; see also Reply Br. 5–9.
As the Examiner explains, however, the proposed modification
includes the “birds spaced along the seismic streamer,” as recited in claim
16, not replacing Gagliardi’s buoys with Olivier’s birds. See, e.g., Ans. 5–8.
Appellant does not dispute that birds are well known. See Reply Br. 11
(“birds are well known”). Although Appellant contends that Olivier’s birds
are ice resistant, there is no dispute that Olivier teaches birds disposed along
a seismic streamer. Indeed, the portion of Olivier cited by the Examiner
explains that “depth control devices, commonly referred to as ‘cable leveling
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5
birds’ because they bear some visual resemblance to water fowl, are attached
to the cable at intervals along its length.” Olivier 1:31–34.
Appellant additionally contends that “G[a]gliardi cannot possibly
show the appropriate positive and negative buoyancy as argued by the
Examiner” because “G[a]gliardi does not even disclose the claimed birds.”
Appeal Br. 15. This is not persuasive of error because we do not read the
Examiner’s rejection as making a finding that Gagliardi teaches the
“streamer including the birds . . . ha[ving] a negative buoyancy” and having
a “positive buoyancy” with the addition of the seismic streamers.3 Rather, in
the proposed modification, which includes “birds” taught by Olivier,
Gagliardi’s system would be adjusted to account for the addition of the
birds. See Ans. 9–10.
Throughout the Appeal Brief, Appellant contends that various other
figures in Gagliardi (e.g., Figs. 9C, 9D, 11A) do not support the Examiner’s
rejection. See Appeal Br. 8–16. As the Examiner explains, “Appellant’s
arguments with regards to the depth controlling devices of the embodiments
or Figures 9C, 9D, and 11A [d]o not address the Examiner’s rejection which
cites the embodiment shown in Figure 9A.” Ans. 10–11.

3 Claim 16 recites that “the streamer including the birds and
any other equipment connected to the seismic streamer has negative
buoyancy” (emphasis added) and subsequently recites that “the seismic
streamer including the birds, the buoyant bodies with associated spacer
elements and the any other equipment together have positive buoyancy”
(emphasis added). Appellant and the Examiner appear to consider the “any
other equipment” in the initial instance defining the “negative buoyancy” as
not including the “buoyant bodies,” which is consistent with the discussion
in the Specification.
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Appellant also alleges that “Olivier teaches away from the claimed
invention and also away from the theoretical structure created by the
Examiner” because “Oliv[i]er teaches to configure the Oliv[i]er birds to be
ice resistant so that the birds can contact the ice.” Appeal Br. 16. This does
not teach a way from using birds in their conventional manner, which
Olivier expressly teaches, as explained above. See Olivier 1:31–34 (“‘cable
leveling birds’ . . . are attached to the cable at intervals along its length”).
For the reasons explained above, Appellant does not identify error in
the rejection of claim 16. Claims 18, 20, 24, and 31 fall with claim 16.
Claims 26 and 27
The Examiner’s findings regarding claims 26 and 27 are similar to
those with respect to claim 16, relying on Gagliardi teaching the features
recited, other than those related to the “birds.” Final Act. 7–9. Appellant
responds that “that the Examiner’s argument [regarding the birds] is
nonsensical” because the “birds” are referenced in the Examiner’s discussion
of findings related to Gagliardi. Appeal Br. 18.
In the Answer, the Examiner “admit[s] that the rejection was sloppily
written,” and clarifies that “[t]he birds of Olivier are taught as being capable
of exerting a downwards force when towed” and “[t]he wings of the bird
only cause force to be exerted on the cable when the vessel is moving,
therefore when the vessel ceases movement, the downwards force would
also cease.” Ans. 12–13 (citing Olivier 3:39–45). That is, the Examiner
makes clear that the rejection relies on modifying the teachings of Gagliardi
based on those from Olivier for the features associated with the “birds.” In
response, Appellant reiterates unpersuasive arguments presented with
respect to claim 16. See Reply Br. 17–19.
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Accordingly, we are not apprised of error in the Examiner’s decision
to reject claims 26 and 27.
Claim 17
Claim 17 depends from claim 16, and Appellant does not provide
separate argument for claim 17. See Appeal Br. 18–19 (“Silvey does not
provide the deficiencies of Gagliardi and Olivier.”).
Claims 19, 23, and 28
Claim 19 depends from claim 16, and further recites that “the spacer
elements are formed by rigid or semi-rigid elements.” The Examiner finds
that “Toennessen teaches the spacer elements are formed by rigid or semi-
rigid elements (Fig 11: 20a),” and reasons that “[i]t would have been
obvious . . . to modify the system of Gagliardi with the rigid spacer elements
of Toennessen since such a modification would have provided stability and
better control over positioning of the elements.” Final Act. 11.
Appellant acknowledges that “To[e]nnessen discloses that ‘Extensions
20a, 20b may be fixed or may have some degree of rotation; although their
main function is to support the buoyancy and weight elements, they may
contribute Some lateral force, for example if they have a hydrofoil shape,’”
but disputes the Examiner’s findings, contending that “element 20a cited by
the examiner is not even a spacer element.” Appeal Br. 19 (quoting
Toennessen ¶ 39). Although Appellant alleges that extension 20a is not a
spacer, Appellant fails to identify any structure missing from Toennessen.
Ans. 13–14.
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Claim 23 depends from claim 16 and claim 28 depends form claim 27.
Appellant does not provide separate argument for those claims. See Appeal
Br. 20.
Claim 25
Claim 25 depends from claim 16, and further recites that “the buoyant
bodies have a tail for stabilizing the movement of the buoyant bodies when
towed underwater.” The Examiner finds that “Hovland teaches the buoyant
bodies have a tail for stabilizing the movement of the buoyant bodies when
towed underwater,” and reasons that “[i]t would have been obvious . . . to
modify the system of Gagliardi with the tail of Hovland since such a
modification would have stabilized the system.” Final Act. 12 (citing
Hovland 4:14–15). Appellant responds by quoting column 4, lines 13–17 of
Hovland and concluding that “Hovland does not disclose the claimed
buoyant bodies having a tail.” Appeal Br. 20.
As Appellant acknowledges, Hovland teaches “a surface reference
buoy 101 with a tail fin 104 for stabilizing movement in the water.”
Hovland 4:13–14 (emphasis added). Without further explanation as to why
this does not teach the tail recited in claim 25, we are not apprised of error in
the Examiner’s finding.
CONCLUSION
The Examiner’s rejections are affirmed.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
16, 18, 20,
24, 26, 27,
29–31
103 Gagliardi, Olivier 16, 18, 20,
24, 26, 27,
29–31

17 103 Gagliardi, Olivier,
Silvey
17
19, 23, 28 103 Gagliardi, Olivier,
Toennessen
19, 23, 28
25 103 Gagliardi, Olivier,
Hovland
25
Overall
Outcome
16–20, 23–
31

TIME PERIOD FOR RESPONSE
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