Barry Hung et al.Download PDFPatent Trials and Appeals BoardAug 27, 201914151966 - (D) (P.T.A.B. Aug. 27, 2019) Copy Citation 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. 14/151,966 01/10/2014 Barry HUNG 0336-242-2/100459 2777 11171 7590 08/27/2019 Patent Portfolio Builders, PLLC P.O. Box 7999 Fredericksburg, VA 22404 EXAMINER FAIRBANKS, BRENT ALAN ART UNIT PAPER NUMBER 2862 NOTIFICATION DATE DELIVERY MODE 08/27/2019 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): Mailroom@ppblaw.com eofficeaction@appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BARRY HUNG and MIN WANG ____________ Appeal 2018-008743 Application 14/151,966 Technology Center 2800 ____________ Before BEVERLY A. FRANKLIN, JEFFREY B. ROBERTSON, and JANE E. INGLESE, Administrative Patent Judges. ROBERTSON, Administrative Patent Judge. DECISION ON APPEAL1 Appellant2 requests our review under 35 U.S.C. § 134(a) of the Examiner’s decision to finally reject claims 1–20. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We REVERSE. 1 This Decision includes citations to the following documents: Specification filed January 10, 2014 and amended on August 29, 2016 (“Spec.”); Final Office Action mailed December 8, 2017 (“Final Act.”); Appeal Brief filed May 3, 2018 (“Appeal Br.”); and Examiner’s Answer mailed June 20, 2018 (“Ans.”). 2 Appellant is the Applicant, CGG Services SA, which is identified as the real party in interest. (Appeal Br. 2.) Appeal 2018-008743 Application 14/151,966 2 STATEMENT OF THE CASE Appellant’s invention relates to land and marine seismic exploration, and specifically a method of determining and then attenuating true azimuth internal multiples using the three-dimensional (3D) nature of earth’s subsurface without a priori knowledge of multiple-generating interfaces. (Spec. ¶ 2.) Claim 15 is representative of the subject matter on appeal and is reproduced below: 15. A method for eliminating true-azimuth three dimensional (3D) internal multiple reflections, the method comprising: receiving seismic raw data recorded by a plurality of receivers based on a generated series of seismic signals; defining a set of M upper windows, Wj(N), that corresponds physically to a space below a plurality of receivers and includes a geographical area of interest; defining a pair of lower windows, Wk and Wl, both of which are lower than the set of M upper windows; defining a first surface aperture, and defining a second surface aperture, wherein the first surface aperture and the second surface aperture are located on a surface of the earth; determining that a first trace, corresponding to a first seismic wave path, originates from a source and is reflected to a first position within the second surface aperture, wherein there is no receiver or source at the first position within the second surface aperture; determining that a second trace, corresponding to a second seismic wave path, originates from a first position in the first surface aperture and is reflected to the first position in the second surface aperture, wherein there is no receiver or source at the first position within the first surface aperture; determining that a third trace, corresponding to a third seismic wave path, originates from the first position in the first surface aperture and is reflected to a receiver, wherein the first Appeal 2018-008743 Application 14/151,966 3 position in the first surface aperture and the first position in the second surface aperture are between the source and the receiver; segmenting the seismic raw data to each of windows Wj(N), Wk and Wl, as Dwj(N), Dwk and Dwl, respectively using the first and second surface apertures; and determining, with a processor, a total internal 3D multiple model based on an iteratively generated internal 3D multiple model M(xr,yr|xs,ys;f)(N) using said segmented data Dwj(N), Dwk, and Dwl, wherein a true-azimuth 3D internal multiple reflection is associated with the first to third traces, the first trace is reflected on one of the pair of lower windows, the second trace is reflected on one of the set of M upper windows, and the third trace is reflected on another one of the pair of lower windows; and utilizing the true-azimuth 3D internal multiple reflection to generate a seismic image of the subsurface. (App. Br. 24–25, Claims Appendix.) II. REJECTION ON APPEAL Claims 1–20 stand rejected under 35 U.S.C. § 101 as directed to a judicial exception without significantly more. (Final Act. 2.) III. DISCUSSION We limit our discussion to claim 15, which is sufficient for disposition of this appeal. 1. The Examiner’s Position The Examiner stated that the following limitations of claim 15 amounted to abstract ideas (Final Act. 3–4): defining a set of M upper windows, Wj(N), that corresponds physically to a space below a plurality of receivers and includes a geographical area of interest; Appeal 2018-008743 Application 14/151,966 4 defining a pair of lower windows, Wk and Wl, both of which are lower than the set of M upper windows; defining a first surface aperture, and defining a second surface aperture, wherein the first surface aperture and the second surface aperture are located on a surface of the earth; determining that a first trace, corresponding to a first seismic wave path, originates from a source and is reflected to a first position within the second surface aperture, wherein there is no receiver or source at the first position within the second surface aperture; determining that a second trace, corresponding to a second seismic wave path, originates from a first position in the first surface aperture and is reflected to the first position in the second surface aperture, wherein there is no receiver or source at the first position within the first surface aperture; determining that a third trace, corresponding to a third seismic wave path, originates from the first position in the first surface aperture and is reflected to a receiver, wherein the first position in the first surface aperture and the first position in the second surface aperture are between the source and the receiver; segmenting the seismic raw data to each of windows Wj(N), Wk and Wl, as Dwj(N), Dwk and Dwl, respectively using the first and second surface apertures locations; and determining [] a total internal 3D multiple model based on an iteratively generated internal 3D multiple model M(xr,yr|xs,ys;f)(N) using said segmented data Dwj(N), Dwk, and Dwl, wherein a true-azimuth 3D internal multiple reflection is associated with the first to third traces, the first trace is reflected on one of the pair of lower windows, the second trace is reflected on one of the set of M upper windows, and the third trace is reflected on another one of the pair of lower windows. The Examiner stated claim 15 includes “additional elements,” but the elements did not make the claim as a whole amount to significantly more Appeal 2018-008743 Application 14/151,966 5 than the abstract idea. (Id. at 4.) Specifically, the Examiner stated the element/step of seismic raw data, seismic signals, and a plurality of receivers are “mere data gathering, recited at a high level of generality and/or in a well-understood, routine, and conventional way.” (Id. at 5.) The Examiner stated the element/step of “a processor” is a generic computer component performing generic computer functions that are well-understood, routine, and conventional in the art, which does not limit the claim in a meaningful way. (Id.) The Examiner stated the element/step of “utilizing the true- azimuth 3D internal multiple reflection to generate a seismic image of the subsurface” is “merely insignificant extra-solution activity such as outputting the result of the claimed algorithm, recited at a high level of generality and/or in a well-understood, routine, and conventional way.” (Id.) The Examiner stated the additional elements, considered individually and in combination with the other claim elements, do not make the claim as a whole significantly more than the abstract idea itself, and would tend to monopolize the abstract idea in practice. (Id.) 2. Appellant’s Contentions Appellant argues the Examiner does not articulate what the claims are directed to, and as a result, the Examiner’s eligibility analysis is insufficient. (Appeal Br. 9.) Appellant contends the Examiner does not consider the claims as a whole, which are directed to seismic prospecting, and do not monopolize the basic tools of scientific and technological work. (Id. at 10.) Appellant argues that “at least some of the steps” indicated as abstract “are firmly rooted in physical reality.” (Id. at 11–14.) (Emphases omitted.) Appellant contends that the claims recite “significantly more than the Appeal 2018-008743 Application 14/151,966 6 abstract idea,” citing to In re Abele, 684 F.2d 902 (CCPA 1982.) (Id. at 14– 15.) 3. Opinion For the reasons discussed below, we agree with the Appellant that the claimed subject matter has not been shown to be patent-ineligible as directed to a judicial exception without reciting significantly more. 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-step 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); Appeal 2018-008743 Application 14/151,966 7 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))). 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.”). Having said that, 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); 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 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- Appeal 2018-008743 Application 14/151,966 8 eligible application.” Alice, 573 U.S. at 221 (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. (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. The PTO recently published revised guidance on the application of § 101 with regard to the first step of the Alice/Mayo test (i.e., Step 2A of the USPTO’s Subject Matter Eligibility Guidance as incorporated into M.P.E.P. § 2106). USPTO’s January 7, 2019, 2019 Revised Patent Subject Matter Eligibility Guidance (“Revised Guidance”). 84 Fed. Reg. 50 (Jan. 7, 2019). Thus, under Step 1 of the Guidance, as revised, we determine whether the claimed subject matter falls within the four statutory categories: process, machine, manufacture, or composition of matter. Step 2A of the Guidance is two-pronged, under which 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); and (2) additional elements that integrate the judicial exception into a practical application (see MPEP §§ 2106.05(a)–(c), (e)–(h)). See 84 Fed. Reg. at 54–55. Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then, under Step 2B, look to whether the claim: Appeal 2018-008743 Application 14/151,966 9 (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 84 Fed. Reg. at 56. Initially, the Examiner acknowledges in the Answer that claims 1–20 fall within one of the four statutory categories of invention under Step 1 of the Guidance, such as a process or apparatus, where representative claim 15 recites a series of mathematical computations including “receiving,” “defining,” “determining,” and “segmenting.” (Ans. 2–3; Final Act. 2.) We further observe that claim 15 recites “utilizing the true-azimuth 3D internal multiple reflection to generate a seismic image of the subsurface,” which also constitutes an act, or a process. Claim 1 is similarly directed to a process and claim 18 recites a system, an apparatus that is configured to carry out similar methods according to claims 1 and 15. Accordingly, the claims fall within one of the four statutory categories of invention. Thus, we turn next to Step 2A(1) of the Revised Guidance. Under Step 2A(1) we find that claim 15 recites a judicial exception in the form of mental steps and mathematical concepts. Specifically, as discussed above, claim 15 recites “defining a set of M upper windows” and “defining a pair of lower windows.” According to the Specification, “[w]indows are defined according to a length l and a depth d” where the “depth of the window is determined based on the speed of sound in sea water.” (Spec. ¶ 71; Fig. 12A, steps 108–110.) The Specification Appeal 2018-008743 Application 14/151,966 10 states “the window size has both a time and length dimension” and “the window can be defined to virtually any depth (i.e., time interval), wherein the limiting factors in deciding how many windows to implement can be sample size, processing speed and time, as well as memory storage limitations.” (Id.) Thus, “defining” windows is a mental step. The Specification states that apertures are defined “in terms of location and dimensions” and therefore also is a mental step. (Id. at ¶ 72; Fig. 12A, step 114.) Claim 15 also recites “defining a first surface aperture,” “defining a second surface aperture,” “determining [] a first trace,” “determining [] a second trace,” and “determining [] a third trace.” According to the Specification traces are “selected” (defined) as “the nearest available traces,” “[d]epending on the selection criteria of the apertures that may minimize the difference in azimuth, offset and midpoint, or weighted sum of the three” and the traces are segmented “according to their respective requirements of minimizing the differences in azimuth, offset and midpoint, in ensuring that the low-high-low relationship is fulfilled.” (Id. at ¶¶ 65, 66.) Thus, these steps also recite mental steps and/or mathematical calculations. As to the step of “segmenting the seismic raw data,” the Specification states that “the received data is allocated, according to time of arrival to each of the three windows” (Id. at ¶ 73; Fig. 12A, steps 116.), and thus involves the mental step of categorizing the data in the appropriate window. The Specification also discloses that if a segmented trace does not exist, the data must be extrapolated (Id. at ¶ 74; Fig. 12A, steps 118–119), which is a mathematical calculation. Thus, this element of claim 15 constitutes an abstract idea. Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 Appeal 2018-008743 Application 14/151,966 11 F.3d 1344, 1350 (Fed. Cir. 2014) (holding that claims to a “process of organizing information through mathematical correlations” are directed to an abstract idea). As to the step of “determining, with a processor, a total internal 3D multiple model based on an iteratively generated internal 3D multiple model M(xr,yr|xs,ys;f)(N) using said segmented data Dwj(N), Dwk, and Dwl,” the Specification describes this stem as “perform[ing] the iterative calculation of modified Equation (2)” (Id. at ¶ 75, see also ¶¶ 76–77; Fig. 12A, steps 120– 128) reproduced below. Accordingly, this step recites a mathematical calculation. Thus, the series of mathematical calculations recited in claim 15 constitutes an abstract idea. SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018) (holding that claims to a “series of mathematical calculations based on selected information” are directed to abstract ideas). Indeed, Appellant acknowledges “the seismic data processing steps (i.e., selecting of traces based on the defined setup, segmenting and the interatively determining of the 3D multiple model) are mathematical operations.” (Appeal Br. 14.) As a result, we now turn to Step 2A(2) of the Revised Guidance to determine whether the claims integrate the judicial exception into a practical application. We determine that the additional elements recited in claim 15 Appeal 2018-008743 Application 14/151,966 12 integrate the mathematical concepts and mental steps into a practical application. As correctly argued by Appellant, the claims address the problem of eliminating true-azimuth three dimensional internal multiple reflections, which enhances seismic prospecting. (Appeal Br. 9.) According to the Specification, internal multiples cause data acquisition systems to become confused and “cause problems with determining the true nature of geology of the earth.” (Spec. ¶ 13.) The Specification teaches that most methods directed to internal multiple attenuation in three-dimensional applications “require apriori information about the subsurface” and the nature of seismic exploration is “to determine sub-surface knowledge of geographical areas of interest that have not yet been explored, in order to determine the suitability, or not, for hydrocarbon mining.” (Id. at ¶ 18.) As a solution to this problem, Appellant teaches a method for eliminating true-azimuth three dimensional internal multiple reflections from seismic data obtained from surveying a potential site for seismic exploration of the Earth’s subsurface geologic structure. (Id. at ¶¶ 23–25, 57.) These Specification disclosures evince that the recited method of eliminating true-azimuth three dimensional internal multiple reflections in combination with the other independent claim elements (i.e., the defining, determining, and segmenting elements) solves the internal multiple problem of an existing seismic image technique. In this way, the abstract idea recited in the independent claims improves the technical field of seismic prospecting. See MPEP § 2106.05(a). The independent claims integrate the abstract idea of the recited method of eliminating true-azimuth three dimensional internal multiple reflections into a practical application by Appeal 2018-008743 Application 14/151,966 13 expressly defining the method of eliminating true-azimuth three dimensional internal multiple reflections and thereby generate a seismic image of a subsurface. As a result, Appellant’s claims do not attempt to monopolize the abstract idea of eliminating true-azimuth three dimensional internal multiple reflections itself, but rather define a specific method or device that employs the abstract idea to achieve an improvement in the technical field of seismic prospecting of a subsurface of the Earth. To summarize, each of the independent claims as a whole applies, relies on, or uses the abstract idea of eliminating true-azimuth three dimensional internal multiple reflections in a manner that imposes a meaningful limit on the abstract idea and integrates the abstract idea into a practical application of generating a seismic image of a subsurface. We, accordingly, do not sustain the Examiner’s rejection of claims 1– 20 under 35 U.S.C. § 101. DECISION We reverse the Examiner’s rejection of claims 1–20 under 35 U.S.C. § 101. REVERSED Copy with citationCopy as parenthetical citation