CGG SERVICES SAS

Patent Trials and Appeals Board

Jun 30, 2021

2020005368 (P.T.A.B. Jun. 30, 2021)

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.
15/622,241 06/14/2017 Leonardo QUEVEDO 0336-643-2/101018 5160
11171 7590 06/30/2021
Patent Portfolio Builders, PLLC
754 Warrenton Road
Suite 113-314
Fredericksburg, VA 22406
EXAMINER
NIMOX, RAYMOND LONDALE
ART UNIT PAPER NUMBER
2864
NOTIFICATION DATE DELIVERY MODE
06/30/2021 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 LEONARDO QUEVEDO and CATALIN TANASE
Appeal 2020-005368
Application 15/622,241
Technology Center 2800

Before KAREN M. HASTINGS, JEFFREY B. ROBERTSON, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

HASTINGS, 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 1–20. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as CGG SERVICES
SAS. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
Claim 1, reproduced below (with emphasis added), is illustrative of
the claimed subject matter:
1. A method for determining orientation of stress or cracks in an
underground formation including a horizontally transverse
isotropic, HTI, layer, the method comprising:
performing isotropic elastic inversions on portions of
seismic data acquired during a seismic survey of the
underground formation to obtain values of one or more effective
elastic parameters or combinations thereof, the portions of the
seismic data corresponding to distinct source-receiver azimuth
ranges;
calculating azimuthal Fourier coefficients, AFCs, for each
of the one or more effective elastic parameters or combinations
based on the values;
estimating an anisotropy axis orientation by solving
equations that correspond a minimization of distance between
the calculated AFCs and expected AFCs corresponding to an
HTI assumption; and
using the estimated anisotropy axis orientation to design
a hydrocarbon production plan.
Independent claim 13 recites a data processing apparatus for
performing the method of claim 1 (Appeal Br. (Claims App.) 15–16).
REJECTION
Claims 1–20 are rejected under 35 U.S.C. § 101 because the claimed
invention is directed to an abstract idea without significantly more. Final
Act. 3.

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OPINION
The rejection of claims 1–20 under 35 U.S.C. § 101 for claiming patent-
ineligible subject matter.

Legal Framework
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. 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 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
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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
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 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. (citation omitted)
(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 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 (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.
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(alterations in original) (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.
In January 2019, the U.S. Patent and Trademark Office (“USPTO”)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“2019 Revised Guidance”).2 “All USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance.” Id. at 51; see
also October 2019 Update at 1.
Under the 2019 Revised Guidance and the October 2019 Update, 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) (“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. 10.2019, June 2020)) (“Step 2A, Prong Two”).3

2 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 (the “October
2019 Update”) (available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df).
3 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
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2019 Revised Guidance, 84 Fed. Reg. at 52–55.
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
(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 52–56.

Analysis
Applying the guidance set forth in the Memorandum, we conclude
that claims 1–20 do not recite patent-eligible subject matter.

Revised Step 2A, Prong One –recites a judicial exception
According to Alice step one, “[w]e must first determine whether the
claims at issue are directed to a patent-ineligible concept.” Alice, 573 U.S. at
218 (emphasis added). The Memorandum instructs us first to determine
whether each claim recites any judicial exception to patent eligibility. 84
Fed. Reg. at 54. The Memorandum identifies three judicially-excepted
groupings: (1) mathematical concepts, (2) certain methods of organizing
human activity such as fundamental economic practices, and (3) mental

practical application. See 2019 Revised Guidance - Section III(A)(2), 84
Fed. Reg. at 54–55.
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processes. Id. at 52. We primarily focus here on the first and third
groupings—mathematical concepts and mental processes.
The Examiner finds that the claims are directed to abstract ideas,
including mathematical concepts and mental processes. Final Act. 3–6; Ans.
3–5. The Appellant contends that the “claims include abstract steps but are
not directed to an abstract idea instead being a practical application that
improves seismic exploration” Appeal Br. 4 (emphasis omitted).
However, the claims do not include a practical application that
improves seismic exploration but rather include generating and using
calculated and estimated seismic data or information merely to design a
production plan. This method includes steps to (1) “performing” isotropic
elastic inversions (generating a type of data or information), (2)
“calculating” azimuthal Fourier coefficients (generating another type of data
or information), (3) “estimating” anisotropy axis orientation (another type of
data or information), and then (4) designing a “production plan” using the
estimated information. Appeal Br. (Claims App.) 13, 15–16. It is noted that
Appellant does not dispute Steps (1)–(3) as “recit[ing] abstract ideas, that is,
mathematical concepts.” Appeal Br. 7–8. However, these method steps taken
as a whole, under their broadest reasonable interpretation, are all directed to
the abstract idea of mathematical concepts, wherein the steps include a
performing, calculating, estimating, and a using step in order to apply a
mathematical model to transform seismic input data to another form of data.
Above where we reproduce claim 1, we identify in italics the
limitations that recite an abstract idea. The recited italicized limitations,
individually and collectively, describe mental processes or mathematical
concepts. Step (1) merely provides a manipulation of information to be used
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in the mathematical concepts recited afterwards. The Specification describes
this seismic data recited in Step (1) as being acquired. Spec. ¶ 28. Steps (2)
and (3) similarly describe steps of calculating or estimating information that
will be used in the estimation to design the production plan in Step (4).
Thus, Steps (1)–(4) recite the identification and generation of data to be used
in a series of mathematical calculations in order to estimate anisotropy axis
orientation (another data set). Spec. ¶¶ 33–39, 46–47. Appeal Br. (Claims
App.) 13, 15–16.
Mathematical operations performed in a specific sequence or limited
to types of data from a certain field of study nonetheless involve
mathematical concepts which are abstract ideas. Because the claims as
analyzed above, both in the limitations separately and in the claim taken as a
whole, are directed to mathematical concepts, the claims recite the judicial
exception of an abstract idea in the first prong of revised Step 2A of the
2019 Guidelines. See 2019 Revised 101 Guidance, 84 Fed. Reg. at 51–52.

Revised Step 2A, Prong Two – Practical Application
Having determined that claims 1–20 recite the abstract idea of
mathematical concepts, we next look to determine whether the claims recite
“additional elements that integrate the judicial exception into a practical
application.” MPEP § 2106.05(a)–(c), (e)–(h); 2019 Revised 101 Guidance,
84 Reg. at 53–54. Integration into a practical application requires an
additional element or a combination of additional elements in the claim to
“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.” 2019 Revised
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101 Guidance, 84 Fed. Reg. at 53–54; see also id. at 55 (setting forth
exemplary considerations indicative that an additional element or
combination of elements may have integrated the judicial exception into a
practical application).
Appellant contends that claim 1 “recites additional elements that
integrate the judicial exception into a practical application” of such
relationships/formulas/calculations. Appeal Br. 8; see also id. at 7, 9; Reply
Br. 1–2. However, we do not find that the additional elements recited in
claim 1 integrate the judicial exception into a practical application. Although
claim 13 employs a computer system which recites “a processor connected
to the memory” which is configured to cause the processor to carry out Steps
(1)-(4)” the Examiner contends that the recited steps may be performed by
either a generic computer or inside the human mind. Ans. 3–4, Final Act. 3–
5. The Specification does not recite that the microprocessor or the associated
memory are anything other commercial off-the-shelf computer components.
Spec. ¶¶ 65–68.
Appellant argues that Steps (1)–(4) taken as a whole relate to a
practical objective of designing a hydrocarbon production plan by tying
seismic data processing to the physical reality of hydrocarbon exploration.
Appeal Br. 7–8. However as the Examiner points out the recited
“hydrocarbon production plan” is at such a high level of generality that it
merely links the use of the judicial exception to a particular technological
environment or field, rather than actually integrating the judicial exception
into a practical application. Ans. 3–4, Final Act. 4–6. Therefore, Appellant’s
argument that the claims when taken as a whole integrate the judicial
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exception into a practical application are not sufficient to show reversible
error.
Appellant states that, like the technology in McRO, Inc. v. Bandai
Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016), “the present
claims are directed to functions not previously performable by a computer.”
Appeal Br. 8–9. However, receiving input seismic data, identifying different
types of data, and using an algorithm to generate another type of output data
— these mathematical functions — are the type of work that a computer was
designed to accomplish. In McRO, the improvement in technology was a set
of rules for automatically assigning weights to an animated character’s facial
expressions in order to effectively animate speech movements. 837 F.3d at
1303–06. This had previously been done manually by animators setting
weights via computer interface. Id. at 1306. Here, in contrast, the Examiner
points out that the claimed invention incorporates mere instructions to
implement an abstract idea on a computer or merely uses a computer as a
tool to perform an abstract idea, and the present claim is not akin to the
technology in McRO. Ans. 4–5
Further, despite the Appellant’s arguments, merely acquiring input
data to determine a correspondence between the input data and another
abstract element is not a sufficient technological improvement to overcome a
finding that the claim is directed to an abstract concept. Appeal Br. 9–10. As
exemplified by Appellant, Thales Visionix, Inc. v. United States, 850 F.3d
1343 (Fed. Cir. 2017), was directed to a particular configuration of inertial
sensors and a particular method of using the raw data from the sensors. Id.
However, as the Examiner points out, the claimed invention does not claim a
similarly recited novel/unconventional physical element or
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combination/configuration of physical elements that would be seen as
integrating the judicial exception into a practical application. Ans. 4–5.
There are, in fact, no additional elements directed to a particular
machine or transformation. While the claims recite a step of using the result
of the generated data to design a hydrocarbon production plan, the resulting
production plan is again at such a high level of generality that it cannot be
interpreted as integrating the judicial exception into a practical application.
Thus, for all the foregoing reasons, the claims are directed to an abstract idea
and are not integrated into a practical application.

Step 2B–Inventive Concept
Because we determine that claims 1–20 are directed to an abstract
idea and they do not include additional elements that integrate the abstract
idea into a practical application, we look to whether each claim provides an
inventive concept, i.e., adds a specific limitation beyond the judicial
exception that is not “well-understood, routine, conventional” in the field.
2019 Revised 101 Guidance, 84 Fed. Reg. at 56. That is not the case here.
See Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354,
1359 (Fed. Cir. 2018) (holding that “the ‘inventive concept’ cannot be the
abstract idea itself”). Claim 1 recites a method which includes mathematical
concepts and resulting activity specified only at a high-level of generality —
nothing more than an abstract idea. Claim 13 recites a computer system with
a processor and an associated memory. Appeal Br. (Claims App.) 13, 15–16.
The Examiner aptly determines that generic computer components recited as
performing generic computer functions that are routine and conventional
activities amount to no more than implementing the abstract idea with a
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computerized system. Ans. 7–8, Final Act. 5–6. Further, the Specification
describes the processor and the associated memory at a high level of
generality and nothing indicates that these are not commercially available
off-the-shelf components. Spec. ¶¶ 63–68; see also Alice, 573 U.S. at 225–
26 (“Instead, the claims at issue amount to ‘nothing significantly more’ than
an instruction to apply the abstract idea of intermediated settlement using
some unspecified, generic computer.”). Therefore, the Appellant has failed
to show where the Examiner erred in his rejection, since both processors and
memory components are notoriously well known.
Appellant’s argument that this panel should follow the decision of
PTAB in Ex parte Hung, Appeal No. 2018-008743 (PTAB Aug. 27, 2019) is
not persuasive. The technical improvement at issue in Hung was not
determining orientation of stress or cracks in an underground formation used
to design an appropriate hydrocarbon production plan (as asserted in this
appeal) but rather was for eliminating internal reflections which must result
in the generation of a seismic image of a subsurface of the earth. Hung, at
12. The panel in Hung looked to Appellant’s Specification, which disclosed
evidence that the recited method of eliminating true-azimuth 3D internal
multiple reflections, in combination with other claimed elements, solved an
internal multiple problem of an existing seismic image technique by
generating a seismic image of a subsurface to achieve an improvement in the
technical field of seismic prospecting of a subsurface of the earth. Id., citing
Spec. ¶¶ 13, 23–25, 57. Thus, the specific technical improvement in Hung
involved producing an improved seismic image, instead of merely a
generalization of a hydrocarbon production plan, as recited in Appellant’s
claims 1 and 13. See id. at 13. Therefore, the facts of that case are not close
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enough to the facts of this case to be persuasive of error in the Examiner’s
conclusion of ineligible subject matter.
A decision more closely aligned to the facts in the present appeal is Ex
parte Wang, Appeal No. 2019-000604 (PTAB Dec. 2, 2019). Similar to the
present appeal, the panel in Wang held that a geophysical algorithm used for
regularizing seismic data was patent ineligible because it was directed to an
abstract idea of mathematical operations, with no practical application, and
no limitations added beyond the judicial exception, such that it did not
provide an inventive concept.
Accordingly, we conclude no error has been committed in the
determination under Alice step two that claim 1 does not include an element
or combination of elements circumscribing the patent-ineligible concept it is
directed to so as to transform the concept into an inventive application.
We have considered all of the Appellant’s remaining arguments and
find them unpersuasive. Thus, we conclude that claims 1–20 are directed to
patent ineligible subject matter under 35 U.S.C. § 101.
Claims 1–20 are directed to the abstract idea of mathematical concepts
utilizing input and identified data in a mathematical calculation to generate
output data (Spec. Fig. 3, ¶¶ 28–29) and do not recite additional elements
that integrate those mathematical concepts into a practical application.
Further, the claims do not recite any application in seismic technology (other
than generally linking the use of a judicial exception to a hydrocarbon
production plan). Generating a hydrocarbon production plan at such a high
level of generality does not transform the otherwise pre-empted
mathematical concepts. Alice, 573 U.S. at 216 (“We have described the
concern that drives this exclusionary principle as one of pre-emption.”)
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(citing Bilski, 561 U.S. 593, 612 (2010) (“[U]pholding the patent ‘would
pre-empt use of this approach in all fields, and would effectively grant a
monopoly over an abstract idea.’”)).

CONCLUSION
The Examiner’s rejection is AFFIRMED.

DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20

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) (2019).
AFFIRMED