Ex Parte Bardainne

Patent Trial and Appeal Board

Aug 29, 2018

14655025 (P.T.A.B. Aug. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/655,025 06/23/2015 Thomas Bardainne
11171 7590 09/06/2018
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404
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.
0336-580/100583 6520
EXAMINER
CORDERO, LINA M
ART UNIT PAPER NUMBER
2857
NOTIFICATION DATE DELIVERY MODE
09/06/2018 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):
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 THOMAS BARDAINNE
Appeal2017-010068
Application 14/655,025
Technology Center 2800
Before BEYERL YA. FRANKLIN, CHRISTOPHER C. KENNEDY,
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 1-20 under 35 U.S.C. § 101 because the
claimed invention is directed to non-statutory subject matter. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 In this Decision, we refer to the Specification filed June 23, 2015
("Spec."), the Final Office Action dated October 26, 2016 ("Final Act."), the
Appeal Brief filed March 20, 2017 ("Appeal Br."), the Examiner's Answer
dated June 2, 2017 ("Ans."), and the Reply Brief filed July 20, 2017 ("Reply
Br.").
2 Appellant is the Applicant, CGG Services SA, which, according to the
Appeal Brief, is the real party in interest. Appeal Br. 2.
Appeal2017-010068
Application 14/655,025
THE INVENTION
The subject matter of the claims on appeal relates to a method and
system for processing seismic data, and a non-transitory computer-readable
medium containing instructions for processing seismic data, where each of
the method, system, and computer-readable medium use a velocity model
based on arrival times of a P-wave and an S-wave to generate an image of a
subterranean formation (independent claims 1, 9, and 17).
Claim 1, reproduced below from the Claims Appendix of the Appeal
Brief, is illustrative of the claims on appeal.
1. A method of processing seismic data comprising:
detecting arrival times of both a P-wave and an S-wave at
a plurality of receivers, the P-wave and the S-wave generated
by a calibration event in a subterranean formation;
fitting the P-wave arrival times as a first curve on a plot
of distance versus time based on a first velocity model with a
first type and estimating a first origin time as an intersection
between the first curve and a time axis of the plot;
fitting the S-wave arrival times as a second curve on the
plot of the distance versus time based on a second velocity
model with a second type similar to the first type and estimating
a second origin time as an intersection between the second
curve and the time axis of the plot;
determining a difference between the first origin time and
the second origin time;
upon a determination that the difference between the first
origin time and the second origin time is within a convergence
criteria, selecting the first velocity model as a calibrated
velocity model of the subterranean formation; and
generating with a computing unit an image of the
subterranean formation based on the calibrated velocity model.
Appeal Br. 25 (Claims App.).
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Application 14/655,025
REJECTION ON APPEAL
Claims 1-20 are rejected under 35 U.S.C. § 101 because the claimed
invention is directed to a judicial exception (i.e., an abstract idea) without
significantly more. Final Act. 10.
ANALYSIS
We review the appealed rejection for error based upon the issues
identified by the Appellant and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to
identify the alleged error in the examiner's rejections")). After considering
the evidence presented in this Appeal and each of Appellant's arguments, we
are not persuaded that Appellant identifies reversible error. Thus, we affirm
the Examiner's rejection for the reasons expressed in the Final Office Action
and the Answer. We add the following.
Independent Claims 1 and 17
Appellant argues the rejection of claims 1-8 and 17-20 as a group.
Appeal Br. 7-10, 11. We therefore limit our discussion to claim 1.
Independent claim 1 7, as well as claims depending from claims 1 and 1 7,
stand or fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv) (2013).
Alice Corp. Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347
(2014 ), identifies a two-step framework for determining whether claimed
subject matter is judicially-excepted from patent eligibility under § 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
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abstract idea. Alice, 134 S. Ct. at 2355. The second step requires examining
"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, 134 S. Ct. at 2357 (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72, 79 (2012)).
With regard to step one, the Examiner determined that the claims are
directed to "a mathematical algorithm to fit seismic data and select a
velocity model" and concluded that the subject matter of the claims is
directed to the judicial exception of abstract ideas. Final Act. 10; see also
Ans. 16.
Appellant argues that the claims are not directed to an abstract idea
because "the claimed steps are intimately related to the underlying physical
reality of the subterranean formation, which makes the claimed steps to
operate in a manner that goes beyond a manipulation and/or representation
of acquired data." Appeal Br. 10; see also id. at 7-10.
Appellant's argument is not persuasive of reversible error in the
rejection. The fact that the claims are drafted to generate an image of the
subterranean formation based on the calibrated velocity model is not
dispositive. The question is what the claims are "directed to."
[T]he "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.,
818 F.3d 1369, 1375, 2016 WL 1393573, at *5 (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).
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Application 14/655,025
The Examiner has adequately explained why the recitations of the
claims as a whole are directed to abstract ideas that our reviewing court has
previously deemed patent-ineligible. Ans. 7. The Examiner found that the
claims are directed to non-statutory subject matter because
the claimed invention collects data (i.e., arrival times of P-wave
and S-wave ), applies mathematical operations (i.e., fitting the
collected data based on velocity models) to calculate values (i.e.,
first origin time and second origin time), uses these calculated
values in another mathematical operation (i.e., subtraction) to
determine an additional value(i.e., difference between the origin
times), which is later used in mathematical comparisons (i.e.,
determining that the difference is within a convergence criteria)
to make a selection (i.e., select one of the models applied during
the data fitting).
Id. As a result, the Examiner determined that "the claimed invention recites
concepts similar to those found by the courts to be directed to abstract
ideas." Id. (citing, e.g., Electric Power Group, LLC v. Alstom, S.A., 830
F.3d 1350, 1353-54 (Fed. Cir. 2016) (rejecting as ineligible claims directed
to collecting information, analyzing it, and displaying certain results of the
collection and analysis)); see also Final Act. 11 (citing, e.g., In re Grams,
888 F.2d 835 (Fed. Cir. 1989)).
Appellant's contention that their claims are not directed to concepts
that are similar to those found by the courts to be directed to abstract ideas is
unpersuasive. Appeal Br. 7-8; Reply Br. 6. Appellant argues, for example,
that their claims are not analogous to the claims in Grams, because the
claims in Grams are not directed to fitting seismic data and selecting a
velocity model as in Appellant's claims. Appeal Br. 8.
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The Examiner responds to Appellant's argument by explaining that
[i]t is not relevant that the specific technological details or field-
of-use of the present claims do not closely match the
technological details or field-of-use of the claims at issue in the
above Court decisions; the similarity in concept relating to the
use of mathematical calculations and data (information)
processing is what is relevant.
Ans. 7.
We agree with the Examiner that Appellant's claims are analogous to
those previously found by the courts to be directed to an abstract idea. The
claims in Grams include a step for performing clinical laboratory tests on an
individual to obtain data for parameters, and additional steps for analyzing
the data, using "in essence a mathematical algorithm," to ascertain the
existence and identity of an abnormality. Grams, 888 F.2d at 836-837. The
court in Grams found the claims to be patent ineligible because they were
directed to mathematical algorithms where "the only physical step involves
merely gathering data for the algorithm" (id. at 839).
Like Grams, all of the steps of claim 1 's method are directed to
mathematical algorithms with the only additional physical step comprising
the detecting/obtaining arrival times of the P-wave and S-wave.
Consequently, the reasoning behind finding the claims to be directed to an
abstract idea and patent ineligible in Grams applies to the Appellant's
invention as well.
Appellant additionally argues that claims 1 and 1 7 are not directed to
abstract ideas because they are not analogous to the claims in Electric Power
(Appeal Br. 9); however, Appellant's argument is unpersuasive.
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Specifically, Appellant argues that their claims are distinguished from the
claims in Electric Power because
Id.
unlike in Electric Power Group ... it is not the crude results of
the data analysis that are displayed (i.e., the origin times or even
the plot of distance versus time for the P- or S-wave arrival
times), but an image of the subterranean formation based on the
calibrated velocity model
The focus of the claims in Electric Power was on collecting
information, analyzing it, and displaying certain results of the collection and
analysis. Electric Power, 830 F.3d at 1353. The court explained that the
step of displaying the results of the calculations was not enough to constitute
significantly more than the abstract idea because "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." Id. at 1354 (citing Content
Extraction & Transmission LLC v. Wells Fargo Bank, Nat'! Ass 'n, 776 F.3d
1343, 1347 (Fed. Cir. 2014); Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709,
715 (Fed. Cir. 2014)).
Like Electric Power, claim 1 's method simply generates an image of a
subterranean formation based on results of abstract processes of collecting
(e.g., detecting arrival times), and analyzing information (e.g., fitting the P-
wave, fitting the S-wave, determining a difference, etc.), without
significantly more. Thus, we are no persuaded that Appellant's claim is
distinguishable from the claims in Electric Power.
Based on Appellant's arguments, we are not persuaded that the
Examiner erred reversibly in determining that the claims as a whole, in light
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of the Specification, are directed to an abstract idea. Final Act. 10-13;
Ans. 7.
We now tum to step two of Alice, which the Court has 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 [ineligible concept] itself."' Alice,
134 S. Ct. at 2355 (alteration in original) (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72-73 (2012)).
Appellant argues that their claims are directed to significantly more
than the abstract idea because they "set forth a technique enhancing seismic
survey by using both P-waves and S-waves detected by plural receivers to
identify a velocity model of a subterranean formation." Appeal Br. 12.
Appellant's argument is not persuasive because as the Examiner
explains, Appellant's claims recite a judicial exception being applied to a
particular field of use, and "limiting the claims to the particular
technological environment ... is, without more, insufficient to transform
them into patent-eligible applications of the abstract idea at their core."
Ans. 17 (quoting Electric Power, 830 F.3d at 1354 (citing Alice, 134 S. Ct.
at 2358).
Appellant contends that their claims constitute significantly more
because they are analogous to those described in USPTO Example 33, which
is modeled after the technology in Research Corp. Techs. Inc. v. Microsoft
Corp., 627 F.3d 859 (Fed. Cir. 2010) (RCT). See Appeal Br. 13-14, and
3 USPTO's Examples: Abstract Ideas (January 27, 2015), available at
https://www. uspto. gov/ sites/ default/files/ documents/ abstract_idea_examples
.pdf (hereinafter "January 2015 Examples").
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Amendment under 37 C.F.R. § 1.111 filed September 27, 2016, 14--16; see
also January 2015 Examples 7-10 (Example 3, Digital Image Processing).
Appellant contends that the claims in Example 3, "incorporated algorithms
and formulas that control the masks and halftoning, but [ applied] them in a
technique that improves the generated digital halftoned image" and thus the
claims as a whole amount to significantly more than the abstract idea of
generating a blue noise mask. Appeal Br. 13. Appellant argues that because
their claims are analogous to the claims in Example 3 by similarly
incorporating algorithms and formulas for seismic surveying in order to
"improve the quality of the image of the explored formation" (id.), the
USPTO's Example supports finding their claims patent eligible. Id.
Appellant's argument is not persuasive of reversible error. The
USPTO explains in Example 3 that the claim elements as an ordered
combination "improve the functioning of the claimed computer itself'
because "the claimed process with the improved blue noise mask allows the
computer to use less memory than required for prior masks" and "results in
faster computation time without sacrificing the quality of the resulting
image." January 2015 Examples, 9. In contrast, Appellant's steps do not
disclose an improvement to any of the claimed hardware in the claim (i.e.,
receivers, computing unit). Thus, we are not persuaded that Appellant's
claims are analogous to Example 3, or that the Examiner erred in
determining that Appellant's claims do not include additional elements that
are significantly more than the recited abstract idea.
Likewise, we are also not persuaded by Appellant's arguments that
their claims are similar to the claims deemed patent eligible in Diamond v.
Diehr, 450 U.S. 175 (1981). In Diehr, the claimed process involved
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"installing rubber in a press, closing the mold, constantly determining the
temperature of the mold, constantly recalculating the appropriate cure time
through the use of the formula and a digital computer, and automatically
opening the press at the proper time. Diehr, 450 U.S. at 187. The computer
use incorporated in the process resulted in an improved molding process that
"significantly lessens the possibility of 'overcuring' or 'undercuring. "' Id.
In contrast, as the Examiner explains, Appellant's claims do not improve a
specific technology or technical field but instead are directed to a
combination of abstract ideas being applied to a particular field of use. Final
Act. 7.
Based on Appellant's arguments, we are not persuaded that the
Examiner erred reversibly in determining that claim 1 does not include
additional elements that are sufficient to amount to significantly more than
the abstract idea of using mathematical algorithms.
For the above reasons and those given by the Examiner, we sustain
the rejection of claims 1 and 17, and the claims that depend therefrom.
Independent Claim 9
With respect to this rejection, Appellant argues independent claim 9
separately. Appeal Br. 10. Dependent claims 10-16 stand or fall with that
claim. 37 C.F.R. § 4I.37(c)(l)(iv) (2013).
To the extent that Appellant argues that claim 9 is not directed to an
abstract idea because the system elements of the claim including "receivers,"
"a network," and "a computing unit ... comprising a processing unit and a
memory unit" are not identified by the Examiner as being directed to an
abstract idea (see Appeal Br. 10-11 ), we are not persuaded. The
mathematical steps of claim 9 are not tied to any special or non-generic
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hardware. Cf Alice, 134 S. Ct. at 2358 ("[T]he mere recitation of a generic
computer cannot transform a patent-ineligible abstract idea into a patent-
eligible invention."). As such, the evidence on this record supports the
Examiner's determination that the system elements are "recited at a high
level of generality" and conventional (Ans. 8), and therefore insufficient to
cause the claims to constitute significantly more than the abstract idea of
performing mathematical calculations.
Appellant also relies on the same arguments raised in connection with
independent claims 1 and 17 discussed above to identify reversible error in
the Examiner's§ 101 rejection of claim 9. Based on the reasons set forth
above, and the Answer, we determine that the evidence on this record
supports the Examiner's determination that claim 9 is patent ineligible.
Therefore, we sustain the rejection of claims 9-16.
DECISION
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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