Barry Hung et al.

Patent Trials and Appeals Board

Aug 27, 2019

14151966 - (D) (P.T.A.B. Aug. 27, 2019)

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.)
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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
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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;
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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
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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
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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);
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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-
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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:
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(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
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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
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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
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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
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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