Ex Parte BØ

Patent Trial and Appeal Board

Jul 10, 2018

13325708 (P.T.A.B. Jul. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/325,708 12/14/2011 TROND HELLEM B0
48879 7590 07/12/2018
SCHLUMBERGER INFORMATION SOLUTIONS
10001 Richmond Avenue
IP Administration Center of Excellence
HOUSTON, TX 77042
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
ISl 1.0268-US-NP 3588
EXAMINER
LIAO, CHRISTINE Y
ART UNIT PAPER NUMBER
2864
NOTIFICATION DATE DELIVERY MODE
07/12/2018 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):
USDocketing@slb.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 TROND HELLEM B0 1
Appeal2016-004724
Application 13/325,708
Technology Center 2800
Before MARK NAGUMO, KAREN M. HASTINGS, and
CHRISTOPHER L. OGDEN, Administrative Patent Judges.
NAGUMO, Administrative Patent Judge.
DECISION ON APPEAL
Trond Hellem B0 ("B0") timely appeals under 35 U.S.C. § 134(a)
from the Final Rejection2 of all pending claims 1-20. We have jurisdiction.
35 U.S.C. § 6. We affirm.
1 The real party in interest is identified as Schlumberger Technology
Corporation. (Appeal Brief, filed 9 September 2015 ("Br."), 2.)
2 Office Action mailed 13 March 2015 ("Final Rejection"; cited as "FR").
Appeal2016-004724
Application 13/325,708
A. Introduction 3
OPINION
The subject matter on appeal relates to a method (independent
claim 1 ), a non-transitory computer-readable media (independent claim 8),
and a system (independent claim 15) for processing seismic data of a
geologic environment.
According to the '708 Specification, "[ d]etecting and extracting edges
in seismic volumes corresponding to faults may be a difficult problem to
handle in an automated fashion." (Spec. 6 [0024].) The Specification
indicates that in prior art methods, "[a] method of edge detection that uses a
Radon transform may take the integral, e.g., sum of values, along 'all
possible lines,' and reports the maximum sum of values." (Id. at 1 [0002].)
In contrast, the Specification reveals "an embodiment may include a point
centered approach that involves using a statistical test, rather than an integral
(e.g., testing statistically for evidence of a line passing through a plurality of
points in a 2D image)." (Id. at 6 [0025].) Somewhat more particularly, the
Specification explains that "[ s ]uch statistical tests may involve
determination of a statistical significance statistic ('SSS'), such as
a z-statistic." (Id.) In another embodiment, "[t]he statistical test may
include a parametric test, ... [h]owever, ... calculating -log(P(SSS))
(i.e., negative log(P(SSS))) may become more difficult and more
3 Application 13/325,708, Line and edge detection and enhancement,
filed 14 December 2011, claiming the benefit of a provisional application
filed 6 May 2011. We refer to the "'708 Specification," which we cite as
"Spec."
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Application 13/325,708
expensive." (Id. at 7 [0029].) The Specification indicates that various
approximations may be made, such as assuming normal distributed data
where a parametric test is used. (Id.)
Claim 1 is representative and reads:
A method for processing seismic data of a geologic
environment, comprising:
identifying a plurality of data values related to
a first object defined by a first plurality of points within
a volume of the geologic environment, wherein
the first object intersects a second object defined by a
second plurality of points within the volume;
calculating a statistical significance statistic related to the
second object;
interpolating a P-value related to the statistical
significance statistic;
determining a significant P-value taken over the second
object, wherein the significant P-value comprises a
minimum P-value that provides a maximum negative
log(P(statistical significance statistic)); and
storing a seismic attribute value that is based at least
in part on the determining [sic] a significant P-value.
(Claims App., Br. 19; some indentation, paragraphing, and emphasis added.)
The Examiner maintains the following ground of rejection 4, 5:
Claims 1-20 stand rejected under 35 U.S.C. §101 as being drawn to
judicially-excepted subject matter.
4 Examiner's Answer mailed 2 February 2016 ("Ans.").
5 Because this application was filed before the 16 March 2013 effective date
of the America Invents Act, we refer to the pre-AIA version of the statute.
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Application 13/325,708
B. Discussion
The Board's findings of fact throughout this Opinion are supported by
a preponderance of the evidence of record.
Initially, we find B0 argues for patentability exclusively based on
limitations recited in claim 1. (Br. 17-18.) For independent claim 8, B0
relies on the arguments challenging the rejection of claim 1 (id.), and for
remaining independent claim 15 simply adds that it is "directed to a system
that includes a processor and memory as well as instructions" (id. at 18).
Accordingly, B0 argues claims 1-20 as a group. We select claim 1 as the
representative claim for this group. Remaining claims 2-20 stand or fall
with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner sets forth (FR 3) and applies (id. at 4) the two-step
analytical framework set forth by the Supreme Court, first in Mayo, 6 and
explained further in Alice, 7 for determining whether claimed subject matter
is judicially-excepted from patent-eligibility under 35 U.S.C. § 101.
According to Alice step one, "[ w ]e must first determine whether the
claims at issue are directed to a patent-ineligible concept," such as an
abstract idea. Alice, 134 S. Ct. at 2355.
In this regard, the Examiner determines that the independent claims
"are directed to a series of statistical steps for the purpose of identifying
objects within seismic data in a geologic environment." (FR 4, 11. 3--4.)
6 Mayo Collaborative Services v. Prometheus Labs., Inc., 566 U.S. 56, 72-
73, 132 S. Ct. 1289, 1303-1304 (2012).
7 Alice Corp. Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347, 2354
(2014).
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We understand the Examiner's position to be that "a series of statistical steps
for the purpose of identifying objects within seismic data in a geologic
environment" is an abstract idea, which would be consistent with the
Examiner's determination that "the claimed invention is directed to a
judicial exception, (i.e., ... an abstract idea)." (FR 4, 11. 1-2.)
B0 does not challenge the Examiner's characterization that claim 1 is
directed to "a series of statistical steps for the purpose of identifying objects
within seismic data in a geologic environment." Nor does B0 challenge that
what claim 1 is directed to is an abstract idea. Accordingly, we move to the
Alice step two determination.
Step two has been described 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
concept itself."' Alice, 134 S. Ct. at 2355 (quoting Mayo, 566 U.S. at 73
(2012)).
In this regard, the Examiner determines that "[ t ]he claims do not
include additional elements that are sufficient to amount to significantly
more than the judicial exception because the method of using statistics to
identify statistically significant data values among a plurality of data values
would be routinely used by those of ordinary skill in the art." (FR 4, 11. 4--
7.)
B0 also does not challenge the Examiner's step two determination.
We reproduce B0' s entire discussion on Alice:
The "abstract idea" in Alice is akin to that found in --
Bilski. As simply stated, both were found to be fundamental
economic practices long prevalent in our system of
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Application 13/325,708
commerce. The pending claims are not directed to such
practices; thus, Alice is inapposite.
Br. 15; accord Reply8 9.
In the Reply, B0 adds:
Surely, Alice, which addressed intermediated settlement
("i.e., the use of a third party to mitigate settlement risk")
was not meant, from a public policy standpoint, to eviscerate
patentability of inventions in the utilitarian, real-world fields
of medical imaging and seismic imaging; where one can help
save lives and the other can help to extract resources to meet
our energy needs. Further, a 35 U.S. C. 101 "standard" that
leans toward inclusion of pre- and/or post-solution activities
(e.g., often multiple actor claims) would similarly be contrary
to public policy.
(Reply 3.)
In summary, B0 urges that Alice "does not substantially
change 35 U.S.C. § 101" (Br. 15.) The majority ofB0's arguments focus
on comparisons with claim 6 of the application for patent at issue in Abele, 9
in which the prior collection of X-ray attenuation data produced by a
computed tomographic scanner was held to be part of the claimed process,
and to control patent eligibility over the process steps of the algorithm
per se. B0 also points to definitions from the Schlumberger Oilfield
Glossary 10 of the terms "seismic" (waves of elastic energy in the earth) and
8 Reply Brief filed 1 April 2016 ("Reply").
9 In re Abele, 684 F.2d 902 (Fed. Cir. 1982) (abrogated by In re Bilski,
545 F.3d 943,959 n.17 (Fed. Cir. 2008).
10 The Schlumberger Oilfield Glossary is available on line at
http://www.glossary.oilfield.slb.com/.
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"attribute" (a measurable property of seismic data) (id. at 10-11) 11 . These
recitations in the claims, in B0's view, go further (are more physically
tangible, and are more tied to the physics of the real world, and produce a
result) than claim 1 of the patent12 at issue in Research Corp. Tech. 13
(Br. 14--16.)
We disagree that Alice does not apply in determining whether the
subject matter of claim 1 is judicially-excepted from patent-eligibility. Even
a cursory reading of Alice belies B0's attempt to confine to fundamental
economic practices the general two-step framework for determining whether
claims are drawn to patent-eligible subject matter. Indeed, the Court
discusses how all of the modem-era cases relevant to the resolution of
abstract ideas and patentable subject matter fit into the two-step analytical
framework. Alice, 134 S. Ct. at 2357---60 (part IIIB).
11 It is not clear that the definitions of these terms were introduced during
prosecution before the Examiner, when they would have provided the most
opportunity for fruitful discussion. Our rules prohibit new evidence
introduced on appeal 37 C.F.R. § 4I.37(c)(2) (2015) ("A brief shall not
include ... any new or non-admitted affidavit or other Evidence [ except in
circumstances not relevant here]."). However, the Schlumberger Oilfield
Glossary is a technical dictionary, and thus can be consulted at any time.
37 C.F.R. § 41.30 (2015) ("Evidence does not include dictionaries, which
may be cited before the Board."); Vitronics Corp. v. Conceptronic, Inc.,
90 F.3d 1576, 1584 n.6, 39 USPQ2d 1573, 1578 n.6 (Fed. Cir. 1996)
("[T]echnical treatises and dictionaries ... are worthy of special note.
Judges are free to consult such resources at any time ... and may also rely
on dictionary definitions when construing claim terms .... ").
12 Kevin J. Parker & Theophano Misa, Method and apparatus for halftone
rendering of a gray scale image using a blue noise mask, U.S. Patent
No. 5,111,310 (1992).
13 Research Corp. Tech. v. Microsoft Corp., 627 F.3d 859 (Fed. Cir. 2010).
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Claims to "any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof'
(35 U.S.C. § 101) are statutory but may nevertheless be patent-ineligible if
they are directed to one of the judicially recognized exceptions-laws of
nature, natural phenomena, and (most commonly) abstract ideas-without
adding anything significantly more. These exceptions have been described
as "the basic tools of scientific and technological work." Mayo, 566 U.S.
at 71. "[I]n applying the § 101 exception, we must distinguish between
patents that claim the building blocks of human ingenuity and those that
integrate the building blocks into something more, thereby transforming
them into a patent-eligible invention." Alice, 134 S. Ct. at 2354 (internal
quotes, alterations, and citations omitted). The Court explained that there is
a "concern that patent law not inhibit further discovery by improperly tying
up the future use of these building blocks of human ingenuity."
Id. at 2354. 14
Thus, the two-stage test provides a framework for distinguishing
between claims to the building blocks of human ingenuity and those that
integrate the building blocks into a patent-eligible application. In step one,
we must determine whether claims at issue are directed to abstract ideas.
(Id. at 2356-57 (part IIIA)). "If so, we then ask [in step two], what else is
there in the claims before us?," considering "the elements of the claims both
individually and as an ordered combination to determine whether the
14 Citing Mayo, 132 S. Ct. at 1301 ( citing O'Reilly v. Morse, 15 How. 62,
112, 113 (1854)).
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additional elements transform the nature of the claim into a patent eligible
application." Id. at 2355 (internal quotes omitted).
To determine whether a claim is directed to an abstract idea under
step one of the framework, we must first determine what the claim is
"directed to." Once that is characterized, a determination is made as to
whether that which the claim is directed to is an abstract idea.
The "directed to" inquiry ... cannot simply ask whether
the claims involve a patent-ineligible concept, because
essentially every routinely patent-eligible claim involving
physical products and actions involves a law of nature and/or
natural phenomenon-after all, they take place in the
physical world. See Mayo, 132 S. Ct. at 1293 ("For all
inventions at some level embody, use, reflect, rest upon, or
apply laws of nature, natural phenomena, or abstract ideas.").
Rather, the "directed to" inquiry applies a stage-one filter to
claims, considered in light of the specification, based on
whether "their character as a whole is directed to excluded
subject matter." Internet Patents Corp. v. Active Network,
Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015); see Genetic
Techs. Ltd. v. Merial L.L.C., 2016 WL 1393573, at *5
[818 F.3d 1369, 1375] (Fed. Cir. 2016) (inquiring into "the
focus of the claimed advance over the prior art").
Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016).
In this regard, claim 1 comprises the steps of identifying seismic data
values, calculating a statistical significance statistic ("SSS"), interpolating a
P-value related to the SSS, determining a significant P-value 15 , and storing a
seismic attribute value. 16 This is the focus of the claimed advance.
( Compare the description of the prior art calculation of line integrals
15 i.e., a minimum P-value that provides a maximum negative log(P(SSS)).
16 that is based at least in part on the determining a significant P-value.
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(Spec. 1 [0002]) with the description of the use of statistical tests
(id. at 6 [0025]), summarized supra at pages 1-2).
We now tum to the question of whether "a series of statistical steps
for the purpose of identifying objects within seismic data in a geologic
environment" to which the claim 1 is 'directed' is a patent-ineligible abstract
idea. To assist in that determination, we look to other cases. Amdocs
(Israel) Limited v. Openet Telecom, Inc. 841 F.3d 1288, 1294 (Fed.
Cir. 2016), cert. denied, Openet Telecom, Inc. v. Amdocs (Israel) Ltd.,
138 S. Ct. 469, 470 (U.S. 2017) ("Instead of a definition [of what an abstract
idea encompasses], then, the decisional mechanism courts now apply is to
examine earlier cases in which a similar or parallel descriptive nature can be
seen-what prior cases were about, and which way they were decided.");
Enfzsh v. Microsoft, 822 F.3d at 1334:
The Supreme Court has not established a definitive rule to
determine what constitutes an 'abstract idea' sufficient to
satisfy the first step of the Mayo/Alice inquiry .... Rather,
both this court and the Supreme Court have found it
sufficient to compare claims at issue to those claims already
found to be directed to an abstract idea in previous cases."
Electric Power Group is almost exactly on point, and it is instructive
to quote extensively from the step-one analysis, omitting the case citations.
The claims in this case fall into a familiar class of claims
"directed to" a patent-ineligible concept. The focus of the
asserted claims, as illustrated by claim [ 1] quoted above, is
on collecting information, analyzing it, and displaying certain
results of the collection and analysis.
Information as such is an intangible .... Accordingly,
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
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ideas. . . . In a similar vein, we have treated analyzing
information by steps people go through in their minds, or by
mathematical algorithms, without more, as essentially mental
processes within the abstract-idea category .... And we have
recognized that merely presenting the results of abstract
processes of collecting and analyzing information, without
more (such as identifying a particular tool for presentation),
is abstract as an ancillary part of such collection and analysis.
Here, the claims are clearly focused on the combination
of those abstract-idea processes. The advance they purport to
make is a process of gathering and analyzing information of a
specified content, then displaying the results, and not any
particular assertedly inventive technology for performing
those functions. They are therefore directed to an abstract
idea.
Electric Power Group, 830 F.3d 1353-54 (emphasis added) (citations
omitted).
"The 'abstract idea' step of the inquiry calls upon us to look at the
'focus of the claimed advance over the prior art' to determine if the claim's
'character as a whole' is directed to excluded subject matter."' Affinity Labs
of Texas v. DirectTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting
Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir.
2016)); see also Enfzsh v. Microsoft, 822 F.3d at 1335, quoted in Apple, Inc.
v. Ameranth, Inc., 842 F.3d 1229, 1241 (Fed. Cir. 2016).
In the present case, given the focus of the claims as a whole on steps
of identifying seismic data values, calculating a statistical significance
statistic ("SSS"), interpolating a P-value related to the SSS, determining a
significant P-value, and storing a seismic attribute value, and that these steps
are consistent with the focus of the advance over the prior art discussed in
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the Specification, the steps are the heart of the invention. Thus, we find that
the Examiner properly characterized claim 1 as being "directed to" "a series
of statistical steps for the purpose of identifying objects within seismic data
in a geologic environment" (FR 4).
We therefore conclude for step 1, as did the Examiner, that
representative claim 1 is directed to an abstract idea.
We now tum to step 2 of the Alice framework, in which we 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." Alice, 134 S. Ct. at 2355,
internal quotes, brackets, and citation omitted.
B0 directs our attention to the seismic data that is processed and the
seismic attribute value that is calculated as making the process physically
tangible, tying the claimed process to the physical world and producing a
result. (Br. 14--16.) The Examiner reasons that "[ a ]dding language to what
the data may represent ( e.g. geologic environment, seismic value) is merely
a general tie to a technology or technological field." (FR 4, 11. 9-11.)
Precedent supports the conclusion that more than a recitation of a field of
use is required to transform the claims from covering a set of abstract ideas
to a patentable application of those abstract ideas. See, e.g., SAP America,
Inc. v. Investpic, LLC, 890 F.3d 1016, 1022 (Fed. Cir. 2018):
Contrary to InvestPic' s suggestion, it does not matter to this
conclusion whether the information here is information about
real investments. As many cases make clear, even if a
process of collecting and analyzing information is "limited to
particular content" or a particular "source," that limitation
does not make the collection and analysis other than abstract.
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(quoting Electric Power Group, 830 F.3d at 1355 (citing cases)). Moreover,
"[ c ]laim limitations directed to the content of information and lacking a
requisite functional relationship are not entitled to patentable weight because
such information is not patent eligible subject matter under 35 U.S.C.
§ 101." Praxair Distribution, Inc. v. Mallinckrodt Hospital Products IP
Ltd., 890 F.3d 1024, 1032 (Fed. Cir. 2018).
As the Court in Alice emphasized, it explained in Bilski 17 that
"Flookf- 18] stands for the proposition that the prohibition against patenting
abstract ideas cannot be circumvented by attempting to limit the use of [the
idea] to a particular technological environment." Alice, 134 S. Ct. at 2355,
quoting Bilski, 561 U.S. at 610-611. Without more, the mere recitation of
the origin of the data as the sensing and recording of a seismic event does
not "add significantly" to the inventive concept. 19 See also Electric Power
Group, 830 F.3d at 1355 (Fed. Cir. 2016):
Most obviously, limiting the claims to the particular technological
environment of power-grid monitoring is, without more, insufficient
to transform them into patent-eligible applications of the abstract idea
at their core. . . . More particularly, a large portion of the lengthy
claims is devoted to enumerating types of information and
information sources available within the power-grid environment.
But merely 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 category of abstract ideas.
17 Bilski v. Kappas, 561 U.S. 593, 130 S. Ct. 3218 (2010).
18 Parker v. Flook, 437 U.S. 584 (1978).
19 B0's reliance on Abele is directly contrary to instruction of the Federal
Circuit that "those portions relying solely on the Freeman-Walter-Abele test
should no long be relied on." Bilski, 545 F.3d 943,959 n.17.
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As for the final "storing" step, the Examiner states that "[t]he new
limitation of 'storing' is considered routine, used by those of ordinary skill
in the art." (FR 4, 11. 11-12.) Be that as it may, "storing," using generic
physical components, has itself been held to be an abstract idea. See In re
TL! Communications LLC Patent Litigation, 823 F .3d 607, 611 (2016) ("the
abstract idea of classifying and storing digital images in an organized
manner."). Storing data, 20 as the Court has recognized on numerous
occasions, "amounts to electronic recordkeeping----one of the most basic
functions of a computer. See, e.g., [Gottschalk v.] Benson, 409 U.S. [63],
at 65, ... (noting that a computer 'operates ... upon both new and
previously stored data.')." Alice, 134 S. Ct. at 2359. Thus, the Court held,
this aspect of the claim did not contribute "substantially more than the
ineligible concept itself." Id. at 2355.
It also notable that claim 1 calls for "processing seismic data" via
"identifying," "calculating," "interpolating," "determining," and "storing"
steps that are not attached to any device. But even if claim 1 were read to
suggest employing a device, such as a system comprising a processor, a
memory, and a storage medium, as independent claim 15 requires, the
intrinsic evidence in the record before us suggests that the use of
conventional devices is contemplated. (See, e.g., Spec. 13 [0046],
"computer system 1000 may be a conventional desktop or a server
computer".) Adding conventional devices as a conduit for the abstract idea
of performing "series of statistical steps for the purpose of identifying
20 B0's reliance of RCTis inapposite, given that the method claim in RCT
does produce an image-it transforms matter-unlike the mere storage of
data.
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objects within seismic data in a geologic environment" (FR 4) does not add
anything significantly more to transform said abstract idea into a patent-
eligible inventive concept. Cf Alice ("In light of the foregoing ... , the
relevant question is whether the claims here do more than simply instruct the
practitioner to implement the abstract idea of intermediated settlement on a
generic computer. They do not.") Also see, Credit Acceptance Corp. v.
Westlake Services, LLC, 859 F.3d 1044, 1057 (Fed. Cir. 2017):
Significantly, the claims do not provide details as to any
non-conventional software for enhancing the financing
process. Intellectual Ventures I LLC v. Capital One Fin.
Corp., 850 F.3d 1332, 1342 (Fed. Cir. 2017) (explaining that
"[ o ]ur law demands more" than claim language that
"provides only a result-oriented solution, with insufficient
detail for how a computer accomplishes it"); Elec. Power
Grp., 830 F.3d at 1354 (explaining that claims are directed to
an abstract idea where they do not recite "any particular
assertedly inventive technology for performing
[ conventional] functions.").
For the foregoing reasons, B0's arguments are unpersuasive as to
error in the Examiner's determination under the Alice two-step analytical
framework that the claims are judicially-excepted from patent-ineligibility.
We have considered all of the B0's remaining arguments and have
found them unpersuasive. Accordingly, because representative claim 1, and
claims 2-20, which stand or fall with claim 1, are directed to an abstract idea
and do not present an "inventive concept," we sustain the Examiner's
determination that they are directed to ineligible subject matter under
35 U.S.C. § 101. Cf LendingTree, LLC v. Zillow, Inc., 656 Fed. Appx. 991,
997 (Fed. Cir. 2016) ("We have considered all of LendingTree's remaining
arguments and have found them unpersuasive. Accordingly, because the
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asserted claims of the patents in suit are directed to an abstract idea and do
not present an "inventive concept," we hold that they are directed to
ineligible subject matter under 35 U.S.C. § 101.").
C. Order
It is ORDERED that the rejection of claims 1-20 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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