Ex Parte Aqrawi et al

Patent Trial and Appeal Board

Nov 17, 2017

13494842 (P.T.A.B. Nov. 17, 2017)

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.
13/494,842 06/12/2012 Ahmed Adnan Aqrawi IS 11,0497-US-NP 3957
48879 7590 11/21/2017
SCHLUMBERGER INFORMATION SOLUTIONS
10001 Richmond Avenue
IP Administration Center of Excellence
HOUSTON, TX 77042
EXAMINER
HULKA, JAMES R
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
11/21/2017 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):
U S Docketing @ sib. com
jalverson@slb.com
SMarckesoni@slb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AHMED ADNAN AQRAWI and
TROND HELLEM BO1
Appeal 2016-006964
Application 13/494,842
Technology Center 3600
Before: KEN B. BARRETT, LEE L. STEPINA, and
AMANDA F. WIEKER, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1—
10 and 12—21. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 The Real Party in Interest is Schlumberger Technology Corporation.
Appeal Br. 2.
Appeal 2016-006964
Application 13/494,842
CLAIMED SUBJECT MATTER
Appellants’ disclosure is directed to seismic data interpretation.
Spec. 12. Claim 1, reproduced below with paragraph identifiers added, is
illustrative of the claimed subject matter:
1. A method comprising:
[a] providing a neighborhood of seismic traces along
inline and crossline directions;
[b] within the neighborhood, selecting a sample seismic
trace and neighboring seismic traces;
[c] for each of the neighboring seismic traces, to provide a
set of time shift values, performing, via one or more processors,
time shifting with respect to the sample seismic trace for
successive times until reaching a stop criterion and estimating,
within a span of the successive times, a time shift value that
corresponds to a maximum cross correlation value;
[d] determining a series of inline direction first derivative
values for the set of time shift values;
[e] determining a series of crossline direction first
derivative values for the set of time shift values;
[/] determining an inline average dip value based on the
series of inline first derivative values;
[h] determining a crossline average dip value based on the
series of crossline first derivative values; and
[/] storing to a memory storage device, coordinates for the
sample seismic trace, the inline average dip value, and the
crossline average dip value.
Appeal Br. 23 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Neff
Smits
Aarre
US 6,092,025 July 18,2000
US 2004/0010373 A1 Jan. 15, 2004
US 2011/0118985 A1 May 19, 2011
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Application 13/494,842
Marfurt, K.J. et al., 3-D seismic attributes using a semblance-based
coherency algorithm, Vol. 63, No. 4 Geophysics, 1150—1165 (1998).
Chopra, S. & Marfurt, K. J., Seismic Attributes for Prospect Identification
and Reservoir Characterization, Society of Exploration Geophysicists
3AA2 (2007).
REJECTIONS
(I) Claims 1—10 and 12—20 are rejected under 35 U.S.C. § 101 as
directed to patent ineligible subject matter.2
(II) Claims 1—10 and 12—203 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Aarre and Neff.4
(III) Claim 21 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Aarre, Neff, and Smits.
(IV) Claims 1—9, 12—14, and 16—20 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Marfurt, Neff, and Chopra.5
(V) Claim 21 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Marfurt, Neff, Chopra, and Smits.
(VI) Claims 10 and 15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Marfurt and Neff.
2 The heading for this rejection refers to claims 1—20, but claim 11 has been
cancelled. See Final Act. 2.
3 The heading for this rejection lists claim 21, but the body of the rejection
does not address claim 21. See Final Act. 3—7.
4 The body of the rejection states that the rejection modifies Marfurt’s
method, but we understand that the Examiner intended to indicate that Aarre
is being modified, not Marfurt, as set forth in the heading. See Final Act. 3,
4; Appeal Br. 15; Ans. 3. The Examiner does not apply Marfurt otherwise in
this rejection.
5 The heading for the rejection of claims 12—14 as unpatentable over
Marfurt, Neff, and Chopra is separate from the heading for the rejection of
claims 1—9 and 16—20 over these same three references. See Final Act. 7,
12.
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Application 13/494,842
OPINION
Rejection (I); claims 1—10 and 12—20
Claims 1—9
The Examiner determines that claim 1 is directed to “looking at a
signal (graph) and performing mathematical analysis to estimate a wave
position at different points in time,” which the Examiner finds to be an
abstract idea. Final Act. 2. The Examiner also determines that claim 1 does
not include additional limitations that amount to significantly more than the
abstract idea itself. Id. at 2—3.
Appellants refer to the 2014 Interim Guidance on Patent Subject
Matter Eligibility, 79 Fed. Reg. 74618, 74622 (Dec. 16, 2014) and
Fuzzysharp Tech. Inc. v. Intel Corp., 595 Fed. Appx. 996 (Fed. Cir. 2015)
(affirmed under Fed. Cir. R. 36) and assert that, unlike the claim found to be
patent-ineligible in Fuzzysharp, “[cjlaim 1 recites a result, i.e., ‘storing to a
memory storage device, coordinates for the sample seismic trace, the inline
average dip value, and the crossline average dip value,” and therefore,
“according to the USPTO’s own guidance, claim 1 of the instant application
is patent eligible.” Appeal Br. 7—9. Appellants reiterate that claim 1
requires the “storing” step in the Reply Brief. See Reply Br. 7.
The Supreme Court has set forth “a framework for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts.” Alice
Corp. Pty. Ltd. v. CLS Bank Inti, 134 S. Ct. 2347, 2355 (2014) (citing Mayo
Collaborative Servs. v. Prometheus Labs, Inc., 566 U.S. 66, 72—73 (2012)).
According to the Supreme Court’s framework, we must first determine
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Application 13/494,842
whether the claims at issue are directed to one of those concepts (i.e., laws of
nature, natural phenomena, and abstract ideas). Id. If so, we must secondly
“consider the elements of each claim both individually and ‘as an ordered
combination’ to determine whether the additional elements ‘transform the
nature of the claim’ into a patent-eligible application.” Id. The Supreme
Court characterizes the second step of the analysis as “a search for an
‘inventive concept’ — i.e., an element or combination of elements that is
‘sufficient to ensure that the patent in practice amounts to significantly more
than a patent upon the [ineligible concept] itself.’” Id. (brackets in original)
(quoting Mayo, 566 U.S. at 72—73).
The prohibition against patenting an ineligible concept, such as an
abstract idea, “‘cannot be circumvented by attempting to limit the use of the
[abstract idea] to a particular technological environment’ or adding
‘insignificant postsolution activity.’” Bilski v. Kappos, 561 U.S. 593, 610—
11 (2010) (citing Diamond v. Diehr, 450 U.S. 175, 191—92 (1981)). The
Court in Alice noted that ‘“[s]imply appending conventional steps, specified
at a high level of generality,’ was not ‘enough’ [in Mayo] to supply an
‘inventive concept.’” Alice, 134 S. Ct. at 2357 (quoting Mayo, 132 S. Ct. at
1300, 1297, 1294).
Here, we agree with the Examiner that claim 1 includes an abstract
idea, namely, performing mathematical analyses. See Final Act. 2.
Moreover, we do not agree with Appellants that the step of “storing to a
memory storage device, coordinates for the sample seismic trace, the inline
average dip value, and the crossline average dip value” as set forth in claim
1, taken alone or in combination with the remainder of the recited steps,
amounts to something significantly more than claiming the abstract idea.
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Rather, we agree with the Examiner that “[t]he technology in the claims
themselves merely use a generic computer, with generic computer functions,
to apply the abstract idea using straightforward instructions (a mathematical
algorithm).” Ans. 3. Storing the result of an algorithm, in this case, is
simply insignificant post-solution activity.
Appellants also quote claims 5 and 6 and certain text from In re Abele,
684 F.2d 902 (CCPA 1982), along with text from Appellants’ Specification,
and conclude that, “as independent claim 1 recites ‘seismic data’, careful
attention to adjectives as in In re Abele, demonstrates that independent claim
1 is patent eligible, as it is ‘within the context of a process which
encompasses significantly more than the algorithm alone.’” Appeal Br. 9—
12 (italics added).
Although we appreciate Appellants’ assertion that claim 1 requires the
use of seismic information, specifically, seismic traces, such a limitation
does not amount to a requirement for significantly more than the underlying
abstract idea articulated by the Examiner. See Final Act. 2. In other words,
limiting the claim to a particular technological environment is, without
more, insufficient to add enough to transform the application of the abstract
idea into patent eligible subject matter. See Electric Power Group, LLC v.
Alstom S.A., 830 F.3d 1350, 1354—1355 (2016) (“[Mjerely selecting
information, by content or source, for collection, analysis, and display does
nothing significant to differentiate a process from ordinary mental processes,
whose implicit exclusion from § 101 undergirds the information-based
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category of abstract ideas.”). Accordingly, Appellants’ argument on this
point is unavailing.
In the Reply Brief, Appellants discuss Enfish LLC v. Microsoft Corp.,
822 F.3d 1327 (Fed. Cir. 2016) and argue that claim 1 is not directed to an
abstract idea, stating, “the claimed subject matter improves an existing real-
world, physical technological process that often involves handling of
substantial amounts of seismic data” and “the amount of seismic data
associated with a seismic survey of the Earth can be considerable.
Logically, given such substantial amounts of seismic data, issues arise in
processing seismic data (i.e., computational resource demands, time, etc.).”
Reply Br. 3—5.
Appellants’ argument on this point is unavailing. Claim 1 requires the
performance of certain operations on seismic traces, but the character of the
traces is that of information, albeit information specifically related to seismic
formations. “Information as such is an intangible ... we have treated
collecting information, including when limited to particular content (which
does not change its character as information), as within the realm of abstract
ideas.” Electric Power Group, 830 F.3d at 1353. Accordingly, we are not
apprised of Examiner error in finding that claim 1 is directed to an abstract
idea, despite the application of the process recited in claim 1 to seismic data.
On pages 5—6 of the Reply Brief, Appellants assert that, unlike
Marfurt, which is applied in a rejection of claim 1 under 35 U.S.C. § 103(a),
“claim 1 does not recite a straightforward search over a user-defined range
of discrete apparent dips.” Appellants also contend that claim 1 relates to a
technological process and differs substantially from the subject matter at
issue in the claims in Bilski and Alice. Reply Br. 7—9. Additionally,
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Appellants contrast Parker v. Flook, 437 U.S. 584 (1978) and Diamond v.
Diehr, 450 U.S. 175 (1981) and contend, “the claims of the instant
application are akin to Diehr in that they are tied to the physical world, i.e.,
reflection seismology where seismic data is utilized to determine
characteristics of actual physical structure in the Earth.” Reply Br. 10.
Further, Appellants briefly summarize various other cases and conclude,
“[a]s may be readily discerned, under the two step Alice analysis, the
pending claims are akin to the patent eligible claims of Diehr; not the claims
of Alice, Bilski, Flook, Benson,6 *Internet Patents- or Digital Image Techs.8”
Reply Br. 9—11 (footnotes added).
These arguments are unavailing. First, assuming arguendo that
claim 1 recites a different approach than that taken in Marfurt, the issue
remains as to whether there is any change in the character (as information)
of the seismic traces recited in claim 1. See Electric Power Group, 830 F.3d
at 1353. Second, the fact that claim 1 does not relate to a fundamental
economic process, as did the claims in Alice and Bilski, is not dispositive as
to the question of whether claim 1 is directed to an abstract idea. Rather, our
reviewing court has found claims in a variety of technologies to be directed
to abstract ideas. See, e.g., Electric Power Group, 830 F.3d at 1353—54
(finding a claim reciting a method for detecting events on an interconnected
electric power grid over a wide area and analyzing the events on the
interconnected electric power grid to be directed to an abstract idea);
6 Gottshalk v. Benson, 409 U.S. 63 (1972).
1 Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343 (Fed. Cir.
2015).
8 Digitech Image Techs., LLC v. Electrs. For Imaging, Inc., 758 F.3d 1344
(Fed. Cir. 2014).
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FairWarningIP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1094—1095 (Fed.
Cir. 2016) (finding a claim reciting “[a] method of detecting improper access
of a patient’s protected health information (PHI) in a computer
environment” to be directed to an abstract idea); In re Brown, 645 Fed.
Appx. 1014, 1016 (Fed Cir. 2016) (non-precedential) (finding a claim
reciting a method of cutting hair to be directed to an abstract idea). Finally,
as for Appellants’ discussion of Diamond v. Diehr and the contention that
“the pending claims” are like the subject matter in that case because they are
tied to the physical world, we determine that the subject matter recited in
claim 1 is more like the claims in Electric Power Group than the subject
matter at issue in Diamond v. Diehr inasmuch as the claims at issue in Diehr
were tied to the operation of a molding press upon a physical article. See
Diamond v. Diehr, 450 U.S. at 184 (“That respondents’ claims involve the
transformation of an article, in this case raw, uncured synthetic rubber, into a
different state or thing cannot be disputed.”). Claim 1 does not require
activity of this kind. We have considered all of Appellants’ arguments for
the patent-eligibility of claim 1, but are not apprised of Examiner error.
Accordingly, we sustain the Examiner’s rejection of claim 1 as directed to
non-statutory subject matter. Appellants make no separate argument for
claims 2—9 (see Appeal Br. 4—12), which depend from claim 1, and,
therefore, these claims fall with claim 1.
Claims 10 and 12—15
Appellants discuss Research Corp. Tech. v. Microsoft Corp., 627 F.3d
859 (Fed. Cir. 2010) and compare claim 1 of the patent at issue in that case
(US 5,111,310) with Appellants’ claim 10. See Appeal Br. 12—13.
Appellants make similar arguments to those presented for claim 1 and
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additionally contend “[cjlaim 10 of the instant application goes further than
the patent-eligible claim 1 of the ’310 patent in that claim 10 of the instant
application affirmatively recites ‘render to a display an image based at least
in part on the dip angle values.’” Id. at 13 (quoting claim 10).
Appellants’ arguments do not apprise us of Examiner error. The fact
that claim 10 requires the above-quoted “render to a display” limitation does
not amount to claiming significantly more than the underlying abstract idea.
Rather, displaying the result of the executable instructions recited in
claim 10 is merely insignificant post-solution activity. See Electric Power
Group, 830 F.3d at 1355 (“The claims at issue . . . merely call for
performance of the claimed information collection, analysis, and display
functions ‘on a set of generic computer components’ and display devices.”).
Thus, we sustain the Examiner’s rejection of claim 10 as directed to non-
statutory subject matter. Appellants make no separate argument for claims
12—15 (see Appeal Br. 12—13), which depend from claim 10, and, therefore,
these claims fall with claim 10.
Claims 16—21
In support of the patent-eligibility of independent claim 16,
Appellants rely on the same arguments discussed above regarding claims 1
and 10. See Appeal Br. 13—14. Accordingly, for the same reasons discussed
above, we sustain the Examiners rejection of claim 16 and claims 17—21
depending therefrom as directed to non-statutory subject matter.
Rejection (II); claims 1—10 and 12—20
The Examiner finds that Aarre discloses most of the elements required
by claim 1 and that Aarre “implies, but does not teach” the features required
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by element c, and the Examiner relies on Neff to remedy this deficiency.
Final Act. 3^4. The Examiner reasons that “[i]t would have been obvious to
modify the method of [Aarre]9 to determine inline and crossline derivative
(slope) values in order to improve dip estimates and quality of images of
seismic vector volumes.” Id. at 4. Appellants contend the Examiner’s
findings of fact with respect to Neff are not supported by a preponderance of
the evidence.10 See Appeal Br. 15—19. In support of this contention,
Appellants quote various large portions of Neff and Appellants’
Specification and state:
In considering the record as whole, the approach of Neff
relies explicitly on a dipping plane that is “determined by
selecting the location (strike and dip) of the plane that optimizes
coherency of all eight traces that are cross correlated with the
central trace”. Accordingly, Neff describes a plane based
approach that optimizes coherency of eight traces that are cross
correlated with a central trace. Specifically, Neff relies on a 3 x
3 matrix where the central trace is in the middle completely
surrounded by 8 different traces.
As stated in the instant application, as filed: “Fig. 4 shows
a 20 diagram 410 and a 30 diagram 430 of a dip scan approach,
which involves processing seismic data with respect to discrete
planes (e.g., a volume bounded by discrete planes).”
Id. at 18. According to Appellants, the cited portions demonstrate that an
underlying finding of fact is not supported by a preponderance on the
evidence. Id. at 19.
9 See supra n.4. The rejection appears to include a typographic error in
which the Examiner references Marfurt, which is not applied in this
rejection. Final Act. 4.
10 Appellants do not argue against the Examiner’s findings of fact with
respect to Aarre or the Examiner’s rationale for modifying these references.
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In response, the Examiner refers to column 4 of Neff and states, “Neff
discusses the time window (referring to sample seismic traces for successive
times). While the applicant uses the phrase time shift, Neff uses the
alternative language of time lag.” Ans. 4. The Examiner also finds that
Appellants’ arguments amount to a general allegation that the claims are
patentable. Id. at 5.
In reply, Appellants commonly argue rejections based on both Aarre
and Marfurt, in combination with Neff. Reply Br. 11—13. Appellants
contend that “[cjlaim 1 does not use a predetermined time window as in Neff
nor a user-defined range of discrete apparent dips as in Marfurt et al. 1998.”
Reply Br. 12. Based on this, Appellants contend that “the combination of
Marfurt. . . and Neff fails to provide evidence sufficient to disclose, teach or
suggest the subject matter of claim 1, which uses a stop criterion and time
shift values.” Id.
Appellants’ arguments fail to apprise us of Examiner error.
Specifically, Appellants’ reproduction of large portions of the cited
references, claim 1, and the Specification do not persuasively explain why
the Examiner’s findings of fact regarding Neff are not supported by a
preponderance of the evidence. Neff states:
The next step shown in block 34, is to cross correlate traces
reflected from a three-by-three array of depth points in a seismic
survey, and is applied to each time sample of each depth point in
the survey. This correlation is carried out over a predetermined
time window such as about 28 [ jmilliseconds, and compares the
trace associated with the central depth point with each of eight
perimeter traces, and for a series of lags of the 8 neighbor traces.
Neff, 4:62—5:2 (emphases added). Appellants do not explain persuasively
why the series of lags disclosed by Neff do not correspond to the time
shifting recited in claim 1. A common dictionary definition of “lag” is “a
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space or time esp. between related events or phenomena; INTERVAL.”
Webster’s Tenth New Collegiate Dictionary (1998). An interpretation
of the term time shifting corresponding to “a space or time between related
events or phenomena” or “interval” is consistent with Appellants’
Specification. See, e.g., Spec. 48-49. Appellants have not shown error in
the Examiner’s application of the prior art, consistent with this
interpretation. See Ans. 4 (“While the applicant uses the phrase time shift,
Neff uses the alternative language of time lag.”).
As for Appellants’ statement that claim 1 does not use a time window,
this contention does not address the rejection of claim 1 because (i) the
Examiner relies on the above-noted series of lags for the recited time
shifting, and (ii) the issue at hand is not whether claim 1 requires everything
disclosed by Neff and Marfurt. Rather, the point in contention as to
Rejection (II) is whether a preponderance of the evidence supports the
Examiner’s findings of fact with respect to Neff. See Appeal Br. 15—19.
We have considered all of Appellants’ arguments for the patentability
of claim 1, but are not apprised of Examiner error. Accordingly, we sustain
Rejection (II) with respect to claim 1. In support of claims 2—10 and 12—20,
Appellants rely only on the arguments discussed above regarding claim 1.
See Appeal Br. 20-21. Accordingly, we also sustain Rejection (II) with
respect to claims 2—10 and 12—20.
Rejection (III); claim 21
Appellants rely on the same arguments for the patentability of claim
21 as those discussed above regarding Rejection (II) and claim 1 (see Appeal
Br. 20), and we sustain the Rejection (III) for the same reasons.
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Rejections (IV)—(VI); claims 1—10 and 12—21
To contest Rejections (IV)—(VI), Appellants rely on the same
arguments regarding Neff discussed above with respect to Rejection (II)
(Appeal Br. 22), and for the same reasons, we sustain Rejections (IV)—(VI).
DECISION
(I) We affirm the rejection of claims 1—10 and 12—20 as directed to
patent ineligible subject matter.
(II) We affirm the rejection of claims 1—10 and 12—20 as
unpatentable over Aarre and Neff.
(III) We affirm the rejection of claim 21 as unpatentable over Aarre,
Neff, and Smits.
(IV) We affirm the rejection of claims 1—9, 12—14, and 16—20 as
unpatentable over Marfurt, Neff, and Chopra.
(V) We affirm the rejection of claim 21 as unpatentable over
Marfurt, Neff, Chopra, and Smits.
(VI) We affirm the rejection of claims 10 and 15 as unpatentable
over Marfurt and Neff.
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)(l)(iv).
AFFIRMED
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