Ex Parte Brizard

Patent Trial and Appeal Board

Jan 31, 2017

13736331 (P.T.A.B. Jan. 31, 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.
13/736,331 01/08/2013 Thierry BRIZARD 0336-138-3/100265 6910
11171 7590 02/02/2017
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404
EXAMINER
MURPHY, DANIEL L
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
02/02/2017 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):
Mailroom@ppblaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THIERRY BRIZARD
Appeal 2015-007372
Application 13/736,331
Technology Center 3600
Before ANNETTE R. REIMERS, THOMAS F. SMEGAL, and
LISA M. GUIJT, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134 of the Examiner’s
decision rejecting claims 1-5, 7—19, 21, and 222-3 We have jurisdiction
under 35 U.S.C. § 6(b).
1 Appellant identifies the real party in interest as CGGVERITAS
SERVICES SA. Appeal Br. 2.
2 Appeal is taken from the Final Office Action dated August 6, 2014 (“Final
Act.”).
3 Appellant identifies the appeal of US Application No. 13/736,342 as a
related appeal. Appeal Br. 2.
Appeal 2015-007372
Application 13/736,331
We REVERSE and enter NEW GROUNDS OF REJECTION
pursuant to our authority under 37 CE.R. § 41.50(b).
CLAIMED SUBJECT MATTER
Claims 1, 10, 21, and 22 are independent. Claim 1 is reproduced
below.
1. A seismic survey system for recording seismic data
underwater in the presence of underwater currents, the system
comprising:
first plural buoys configured to descend in water to a
predetermined depth (HI) and each having a seismic receiver for
recording the seismic data;
a first vessel configured to launch the first plural buoys
along a first line;
a second vessel configured to recover the first plural buoys
at a second line, wherein there is a predetermined distance
between the first and second lines; and
a computer system configured to calculate the underwater
currents prior to launching the first plural buoys and to determine
a positon of the second line,
wherein the first plural buoys are configured to travel
underwater, at substantially the first predetermined depth (HI),
from the first line to the second line, due exclusively to the
underwater currents, and
wherein the computer system calculates the underwater
currents based on historic data.
REJECTIONS
I. Claims 1, 2, 4, 7, 10, 11, and 15—17 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Schmidt (US 5,894,450; iss. Apr. 13,
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1999), Welker (US 2011/0266086 Al; pub. Nov. 3, 2011), and Brunet (US
6,618,321 B2; iss. Sept. 9, 2003).
II. Claims 3, 12, and 13 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, Brunet, and Ray (US 2008/0192569 Al;
pub. Aug. 14, 2008).
III. Claims 5 and 14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, Brunet, and Rouquette (US 7,176,589
B2; iss. Feb. 13, 2007).
IV. Claims 8 and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, Brunet, and DeKok (US 6,493,636 Bl;
iss. Dec. 10, 2002).
V. Claim 9 and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, Brunet, and Dragoset (US 4,992,992;
iss. Feb. 12, 1991).
VI. Claim 21 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, and DeKok.
VII. Claim 22 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, and Dragoset.
ANALYSIS
Rejection I
Regarding independent claims 1 and 10, the Examiner finds that
because Schmidt teaches that AUVs4 “can drift rather than operate under
4 Autonomous Underwater Vehicles. See, e.g., Schmidt 4:14—15.
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propulsion,” Schmidt suggests that “the underwater apparatus are buoys.”
Final Act. 6 (citing Schmidt 8:43—46). The Examiner also determines that
because Schmidt discloses the presence of ships (Schmidt 4:46-47, 61—62)
and the deployment of small, low-cost AUVs for deep sea use {id. at 2:26—
31, 6:16—18), and because “in this art, [AUVs] would not proceed under
their own power from shore to an exploration site,” Schmidt inherently
teaches a first vessel configured to launch the AUVs. Id. at 5—6. The
Examiner further determines that because AUVs would be consecutively
launched from the same ship while the ship is underway, Schmidt inherently
teaches launching the AUVs along a first line. Id.
Appellant argues that “UAVs are not buoys,” and that “one of
ordinary skill in the art might classify the UAVs of Schmidt as more of a
submarine than a buoy.” Appeal Br. 13.
During patent examination, claims are to be given their broadest
reasonable interpretation consistent with the specification, with claim
language being read in light of the specification as it would be interpreted by
one of ordinary skill in the art. See In re Am. Acad, of Sci. Tech Ctr., 367
F.3d 1359, 1364 (Fed. Cir. 2004). The Specification discloses that the buoys
have a seismic receiver (i.e., a hydrophone) for recording the seismic data
(Spec. 133) and a buoyancy system configured to control the buoyancy of
the buoy for traveling underwater at a specific depth {id. H 14, 15), and also,
optionally, a control unit including a processor, memory, and differential
global positioning system {id. H 40, 41), a processor to control the vertical
speed of the buoy {id. 1 50), wherein the processor is connected to a battery,
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clock module, RF beacon and antenna (id. | 51), an inertial device (id. 1 52),
and a propulsion system with a motor and propeller (id. 1 55), and a
communication interface (id. | 57). See id., Fig. 9. An ordinary definition
of the claim term “buoy” is “an object floating in a body of water and
moored to the bottom to mark a channel or to point out the position of
something beneath the water (as an anchor, rock, or shoal).” Webster’s
Third New Int’l Dictionary 297 (1993). Notably, Appellant’s claimed
invention would not be able to travel underwater from a first to a second line
due to underwater currents if the buoys were moored to the sea bottom.
Thus, a broadest reasonable interpretation of the claim term “buoy,”
consistent with Appellant’s Specification, is “an object floating in a body of
water that marks the position of something.”
Schmidt discloses two or more underwater vehicles disposed in an
array for sensing ocean parameters. Schmidt, Abstract. In particular,
Schmidt describes an autonomous underwater vehicle (“AUV”) as having a
hull, an electronics sphere, a battery sphere, a propulsion system, and
typically a sensor such as a hydrophone, wherein “[t]he vehicle is
autonomous in the sense that it may move to any X-Y coordinates and depth
within the ocean volume being monitored.” Id. at 6:13—23, 27—28, 32—35.
Although Schmidt discloses that “when the noise of the AUV motors
interferes with sensor data acquisition, the AUV motors can be turned off,
allowing the AUVs to drift” (id. at 8:43 46), and thus, the AUV must have
some inherent buoyancy, we agree with Appellant that Schmidt does not
disclose that the AUV is a buoy, or an object floating in a body of water that
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marks the position of something. Therefore, we determine that the Examiner
erred in finding that Schmidt’s AUV is a buoy, and further, that the
Examiner has not provided support for the finding that Schmidt suggests
using a modified buoy as the AUV or that it would be obvious to do so.
Appellant also argues, inter alia, that Schmidt fails to inherently
disclose that a first vessel is configured to launch the first plural buoy along
a first line, because Schmidt does not describe how the AUVs are deployed,
and that, for example, it is possible that the AUVs are deployed by a drilling
rig. Appeal Br. 13—15; see also Reply Br. 2 (“it is not understood how
launch from a ship is ‘necessarily present’ in Schmidt”). Because Schmidt
is silent regarding how the arrays of AUVs are launched and recovered, we
agree with Appellant that the Examiner’s findings of inherency are
speculative and not supported by a preponderance of the evidence.
Accordingly, we do not sustain the Examiner’s rejection of
independent claims 1 and 10, and claims 2, 4, 7, 11, and 15—17 depending
therefrom, under 35 U.S.C. § 103(a), as unpatentable over Schmidt, Welker,
and Brunet.
Rejections II—V
Claims 3, 5, 8, 9, 12—14, 18, and 19 depend from independent claims
1 and 10. The Examiner’s reliance on Ray, Rouquette, DeKok, and
Dragoset fail to cure the deficiencies in the Examiner’s findings with respect
to Schmidt as discussed supra. See Final Act. 17—24. Therefore, we also do
not sustain the Examiner’s rejection of claims 3, 5, 8, 9, 12—14, 18, and 19,
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under 35 U.S.C. § 103(a), as unpatentable over Schmidt, Welker, Brunet,
and any of Ray, Rouquette, DeKok, and Dragroset.
Rejections VI and VII
Independent claims 21 and 22 also require “first plural buoys” and “a
first vessel configured to launch the first plural buoys along a first line”
(Appeal Br. 34, 35 (Claims App.)), and the Examiner relies on the same
findings from Schmidt in the rejection of claims 21 and 22 as the Examiner
relied upon in the rejection of claims 1 and 10 supra. Thus, for the same
reasons stated supra, we do not sustain the Examiner’s rejection of claims 21
and 22.
NEW GROUNDS OF REJECTION
Rejection I—Claims 1, 5, 7, 10, and 14—16, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, and Brunet
Independent claim 1
Regarding independent claim 1, we find that Bogue discloses first
plural buoys configured to descend in water to a predetermined depth (HI),
each having a receiver5 for recording data. In support, Bogue discloses
QUEphones are specially modified APEX profiling floats,
equipped with single omni-directional hydrophone and internal
recorder-detector electronics. They are designed to be neutrally-
buoyant at a specified depth (density surface), park there for a
specified time then profile during the ascent to the surface for
data telemetry.
5 See Spec. 133 (“The seismic receivers may include ... a hydrophone.”).
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Bogue, p. 13, Fig. 9. Thus, the QUEphones, or profiling floats, are buoys, in
that the QUEphones are objects floating in a body of water that marks the
position of something (i.e., a point of data acquisition).
We also find that Bogue discloses a first vessel configured to launch
the first plural buoys along a first line, and a second vessel configured to
recover the first plural buoys at a second line wherein there is a
predetermined distance between the first and second lines, as required by
claim 1. In support, Bogue discloses that “QUEphones are typically
deployed . . . from the deck of a ship” and “recovered via [a] small boat.”
Bogue, p. 13. Bogue further discloses that
[t]he ocean currents will be determined prior to deployment [of
the QUEphones]. This determination will be critical to picking
the launch position in order to keep the QUEphones within the
assigned water-space. . . . [T]he initial plan is to deploy the two
QUEphones at the southern end of the SOAR range area. The
instrument’s neutrally-buoyant depth will be set to about 1000
m. They will stay at this depth for about 16 hours/day and drift
with the current. . . . The ocean currents will be monitored
throughout the exercise, and the QUEphones. . . . will be
repositioned or recovered if necessary. Note that if the current at
the neutrally-buoyant depth is 10 cm/sec, a QUEphone drifts 35
km in 4 days.
Id. at p. 18. Thus, we determine that Bogue discloses a first vessel (or ship)
configured to launch the first plural buoys (or two QUEphones) along a first
line (i.e., the line between the two deployed QUEphones), which is
predetermined as the launch position. We further determine that Bogue
discloses a second vessel (or small boat) configured to recover the two
QUEphones at a second line (i.e., the line between the QUEphones after
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their travel underwater and resurfacing), which is a distance from the first
line based on ocean currents, wherein the distance is predetermined to
maintain the QUEphones within the range area.
This disclosure from Bogue also supports a finding that the first plural
buoys (or two QUEphones) are configured to travel underwater from the
first line to the second line due exclusively to the underwater currents, as
claimed. Bogue does not disclose that the QUEphones have an on-board
propulsion system, but rather explains that “[s]ince the QUEphones are
passive, they drift with the prevailing ocean current at their neutrally-
buoyant depth.” Bogue, p. 18.
Bogue discloses that the array of two QUEphones is used to monitor
marine mammals in an assigned water-space, however, Bogue does not
disclose that the array may also be used to conduct a seismic survey,
wherein the hydrophones of the QUEphones record seismic data, as claimed.
Bogue, Title (“Passive Autonomous Acoustic Monitoring of Marine
Mammals”), p. 18. However, Schmidt discloses that it is known to use
mobile arrays of underwater vehicles6 in “a wide variety of potential
applications including . . . [ojffshore oil exploration . . . , initial seismic
surveys for resources, . . . [and] tracking marine mammals.” Schmidt 10:21—
32. Therefore, we determine that it would have been obvious to one of
6 Schmidt discloses that “while the array of FIGS. 1 and 2 utilize [AUVs],
underwater arrays in accordance with the invention may utilize manned,
tethered and/or autonomous underwater vehicles, or combinations of such
vehicles.” Schmidt 6:45—49 (emphasis omitted). The disclosure of a
tethered vehicle suggests a buoy.
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ordinary skill in the art at the time of the invention to have used the array of
QUEphones, as described in Bogue, as a seismic survey system to record
seismic data, because Schmidt teaches the use of underwater vehicle arrays
in both applications.
As set forth supra, Bogue discloses the need to determine ocean
currents prior to launching the QUEphones. Bogue does not, however,
disclose a computer system configured to calculate the underwater currents
prior to launching the first plural buoys and to determine a position of the
second line, as claimed. Rather, Bogue discloses that “[b]y deploying the
gliders first, they can be used to assess the prevailing ocean currents prior to
deployment of the freely drifting profiling floats” (Bogue, p. 16), and that
this information is critical to determining the launch (and therefore, the
recovery lines) to keep the QUEphones within the assigned water-space {id.
at p. 18). Brunet suggests another way to assess the prevailing ocean
currents, namely, by computer simulation. Brunet, Abstract. Brunet also
discloses that the computer system may calculate underwater currents based
on historic data. See Brunet 2:28, 53, 3:6—7 (the method includes selecting a
current object as a function of the intended application, wherein a type of
current object may be “a history of past extrapolations of the total current as
measured by current meter”). Thus, we determine that it would have been
obvious to one skilled in the art at the time of the invention to substitute
Bogue’s method of determining ocean currents with the computer simulation
taught in Brunet. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 416
(2007) (“when [an application] claims a structure already known in the prior
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art that is altered by the mere substitution of one element for another known
in the field, the combination must do more than yield a predictable result”)
(citing United States v. Adams, 383 U.S. 39, 50-51 (1966)).
Further, claim 1 requires the computer system to be configured to
determine a position of the second line. Appeal Br. 30 (Claims App,).
Because Bogue discloses that the determination of the ocean current is
“critical to picking the launch position in order to keep the QUEphones
within the assigned water-space” and that “[t]he ocean currents [are]
monitored . . . and the QUEphones , . . repositioned or recovered if
necessary” (Bogue, p. 18), Bogue teaches that the determination of the ocean
current is also critical to determining the finish line, in that it is used to
ensure the QUEphones finish traveling within the assigned water-space.
Thus, the modification of Bogue, in view of Brunet, would result in a
computer assessing currents to determine a position of the second line (Le.,
the line where the QUEphones are recovered).
Alternatively, as reasoned by the Examiner, it would have been
obvious to use a computer system, as taught by Brunet, to predict currents
for the planned deployment of profiling floats, as disclosed by Bogue, “since
such a combination enables more reliable prediction of where there may be
gaps in the data in the absence of steps taken to improve coverage” of the
assigned water-space. Final Act. 8.
Accordingly, we reject independent claim 1, under 35 U.S.C. § 103(a),
as unpatentable over Bogue, Schmidt, and Brunet.
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Independent claim 10
Regarding independent claim 10, we apply the same findings and
reasoning with respect to Bogue, Schmidt, and Brunet, as applied to claim 1
supra. Claim 10 further requires selecting starting and finish lines for the
first plural buoys, which are substantially perpendicular to the underwater
currents. Appeal Br. 32 (Claims App.). As discussed supra, Bogue
discloses that “ocean currents will be determined prior to deployment” of the
two QUEphones and that “[t]his determination will be critical to picking the
launch position in order to keep the QUEphones within the assigned water-
space.” Bogue, p. 18. In other words, Bogue discloses that the start and
finish positions are known result-effective variables when designing the plan
for monitoring an assigned water-space using profiling floats that drift
within underwater currents. Accordingly, selecting starting and finish lines
for the profiling floats that are substantially perpendicular to the underwater
currents would have been a matter of routine optimization for one having
ordinary skill in the art at the time of the invention. As the Examiner
explains, “first and second lines that are substantially perpendicular to the
current maximize the survey area.” Ans. 10. In other words, deploying the
QUEphones in a line substantially perpendicular to the underwater currents
results in the QUEphones being horizontally distributed across the area of
the assigned water-space, rather deploying the QUEphones in a line
substantially parallel to the underwater currents, wherein one QUEphone
would travel at a distance along the line behind the other.
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Accordingly, we reject independent claim 10, under 35 U.S.C.
§103 (a), as unpatentable over Bogue, Schmidt, and Brunet.
Dependent claims 5 and 14
Claims 5 and 14 depend from claims 1 and 10, and further recite
“wherein the predetermined distance is larger than 10 km.” Appeal Br. 31,
33 (Claims App.). Bogue discloses that a predetermined distance between
the launch and recovery lines is 35 km. Bogue, p. 18 (“Note that if the
current at the neutrally-buoyant depth is 10 cm/sec, a QUEphone drifts 35
km in 4 days.”).
Accordingly, we reject claims 5 and 14, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, and Brunet.
Dependent claims 7 and 16
Claims 7 and 16 depend from claims 1 and 10, and further recite,
“wherein the computer system is configured to receive current positions of
the first plural buoys, and to calculate new trajectories of the underwater
currents based on the current positions of the first plural buoys.” Appeal Br.
31, 32 (Claims App.). Bogue discloses that “[the] progress [of the
QUEphones or profiling floats] will be monitored 24/7 [(continuously)]” and
also that “[t]he ocean currents will be monitored throughout the exercise,
and the QUEphones .. . will be repositioned or recovered if necessary.”
Bogue, p. 18. In other words, Bogue teaches that data regarding the current
positions of the profiling floats and also the ocean currents is collected
throughout the exercise, and used to reposition the floats. One skilled in the
art would appreciate that such repositioning would involve calculating new
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trajectories of the underwater currents to maintain the finish line within the
assigned water-space, according to the planned exercise, as taught in Bogue.
Moreover, Brunet teaches using computer simulation to determine variations
in the current over time and space (Brunet, Abstract), and, in real time, “to
provide the ship with navigation assistance so as to continuously adjust the
trace of the ship so that at each instant the orientation of the streamers is as
close as possible to their orientation at the same level. . . during the pass of
the ship over the previously surveyed adjacent line” (id. 9:4—11). Thus, we
determine that it would have been obvious to one of ordinary skill in the art
to receive current positions of the first plural buoys, as disclosed in Bogue,
and to calculate new trajectories of the underwater current positions, as
taught by Brunet, to maintain the buoys within the assigned water-space.
Accordingly, we reject claims 7 and 16, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, and Brunet.
Dependent claim 15
Claim 15 depends from claim 10 and further recites, “calculating with
a computer system the underwater currents prior to launching the first plural
buoys; and calculating a position of the finish line.” Id. at 33 (Claims App.).
We rely on our findings and reasoning, as stated supra, with respect to this
limitation as recited in claim 1.
Accordingly, we reject claim 15, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, and Brunet.
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Rejection II— Claims 2—4, 8, 9, 11—12, 18, 19, 21, and 22 under 35 U.S.C.
§ 103(a), as unpatentable over Bogue, Schmidt, and Brunet, and
alternatively, also including DeKok and/or Dragoset.
Dependent claims 2, 3, 8, 9, 11, 12, 18, and 19
Claims 2, 3, 8, 9, 11, 12, 18, and 19 depend from independent claims
1 and 10, and require, in relevant part, wherein the first vessel is configured
to launch second plural buoys along the first line, later in time than the first
buoys, or waves of buoys to cover a desired area for collecting the seismic
data; and second plural buoys configured to descend to a second
predetermined depth in water or to form a variable-depth profile. Appeal Br.
30-34 (Claims App.). Schmidt discloses that the following variables are
known to be result-effective when designing arrays of underwater vehicles
(or mission profiles):
a variety of mission profiles may be utilized with the mobile
underwater arrays of the present invention. The mission profile
is defined by a number of parameters, including the shape of the
AUV array (straight line, curved, V-shaped, etc.), the size of the
array (the number of AUVs and spacing between AUVs), the
orientation of the array (vertical, horizontal, etc.) the depth of
movement of the AUV array, the speed of the AUV array, and
any other parameters that are required to defined a particular
mission.
Schmidt 9:49-59. Moreover, Bogue discloses that the neutrally-buoyant
depth of each profiling float may be separately determined. See Bogue, p.
18 (“The instrument’s neutrally-buoyant depth will be set to about 1000
m.”). Thus, we determine that it would be obvious to one skilled in the art at
the time of the invention to use multiple profiling floats, as disclosed in
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Bogue, which are deployed at different time intervals, for example second
plural buoys along the first line, later in time than the first buoy, or in waves,
to create a horizontal array with more than one column of floats, and which
are set to different neutrally-buoyant depths to create a vertical array with
more than one row of floats, or a combination thereof, in view of the known
parameters for designing arrays to monitor a certain area within a body of
water, as disclosed in Schmidt, and as required by claims 2, 3, 8, 9, 11, 12,
18, and 19.
Additionally, Schmidt teaches that “[ajrrays of hydrophones are
widely used,” and that “[mjultiple hydrophones may be spaced along a cable
towed behind a ship to form a towed array.” Schmidt 2:42-44. Noting that
such towed arrays have “fixed configurations” and “may be difficult to
maneuver,” Schmidt discloses “an oceanographic sampling system
compris[ing] a plurality of underwater vehicles disposed in an array having
an array configuration.” Schmidt 2:64—67. In other words, as determined by
the Examiner, Schmidt teaches one skilled in the art that underwater arrays
are a substitute for, and improvement over, towed arrays. See Final Act. 21
(“[Schmidt”] suggests that the set of buoys form the equivalent of a
traditional streamer.”). The Examiner relies on DeKok for teaching
“underwater seismic sensors arranged in quasi over/under configuration” (id.
(citing DeKok, Abstract, 8:10-9:25, Figs. 2A, 9 A, 9C)) and further on
Dragoset for teaching “seismic sensors disposed underwater along a slanted
profile” (id. at 23—24 (citing Dragoset, Abstract, Fig. 1)). Thus, in view of
the Examiner’s findings, we further determine that it would be obvious to
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one skilled in the art at the time of the invention to use multiple profiling
floats, as disclosed in Bogue, which are deployed at different time intervals
or in waves to create a horizontal array with more than one column, and/or
set to different neutrally-buoyant depths to create a vertical array with more
than one row, or a combination therefor, in order to form equivalent
configurations of hydrophone arrays, as are employed via streamers, as
taught by Schmidt, and DeKok and/or Dragoset.
Accordingly, we reject claims 2, 3, 8, 9, 11, 12, 18, and 19 under 35
U.S.C. §103(a), as unpatentable over Bogue, Schmidt, and Brunet, and
alternatively, also including DeKok and/or Dragoset.
Dependent claims 4 and 13
Claims 4 and 13 depend from claims 2 and 11, and further recite
“wherein the second vessel is configured to move back and forth along the
second line to recover the second plural buoys,” which were launched later
in time than the first plural buoys. Appeal Br. 31, 33 (Claims App.). We
determine that it would have been obvious to one skilled in the art to move
Bogue’s recovery vessel along the finish line, in a first instance to recover
the QUEphones launched as first plural buoys, and to move Bogue’s
recovery back, in the reverse direction, along the finish line, in a second
instance to recover the QUEphones launched as second plural buoys later in
time than the first plural buoys, which are drifting in the same underwater
currents as the first plural buoys. (Notably, as set forth supra, Bogue’s
launch plan for the QUEphones, as modified by Schmidt, or Schmidt and
DeKok and/or Dragoset, includes second plural buoys launched later in time,
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to form a horizontal array, as claimed in claims 2 and 11.) Such movement
of Bogue’s recovery vessel would be an efficient manner in which to recover
buoys floating across a finish line at two different time intervals, and such
movement would also be within the knowledge of one skilled in the art.
In other words, we agree with the Examiner that “such practice . . . [is]
simply a matter of design choice in the marine seismic survey.” Final Act.
9.
Accordingly, we reject claims 4 and 13, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, and Brunet, and alternatively, also
including DeKok and/or Dragoset.
Independent claim 21
Regarding independent claim 21, we apply the same findings and
reasoning with respect to Bogue, Schmidt, and Brunet, as applied to claims 1
and 8 supra.
Accordingly, we reject independent claim 21, under 35 U.S.C.
§103 (a), as unpatentable over Bogue, Schmidt, and Brunet, and
alternatively, also including DeKok and/or Dragoset.
Independent claim 22
Regarding independent claim 22, we apply the same findings and
reasoning with respect to Bogue, Schmidt, and Brunet, as applied to claims 1
and 9 supra.
Accordingly, we reject independent claim 22, under 35 U.S.C.
§103 (a), as unpatentable over Bogue, Schmidt, and Brunet, and
alternatively, also including DeKok and/or Dragoset.
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Rejection III— Claim 17, under 35 U.S.C. § 103(a), as unpatentable over
Bogue, Schmidt, Brunet, and Welker
Claim 17 depends from claim 10 and further recites “determining the
current positions of the first plural buoys based on an acoustic system
installed at the first and/or second vessels.” Appeal Br. 33 (Claims App.).
Regarding claim 17, the Examiner found that Welker teaches “providing
acoustic positioning to the underwater apparatus from a first vessel.” Final
Act. 16 (citing Welker || 25, 49-50). Indeed, Welker discloses that
“communications also can be achieved through underwater acoustic . . .
telemetry to either the survey vessel or wave glider [(underwater vehicle)]”
and that “[ojbtaining a position for the sub-surface glider through active or
passive acoustic distance measurement and subsequent communication to
the subsurface glider allows an operator on the surface survey vessel to
control the trajectory of the sub-surface glider.” Welker 125. Welker also
discloses that “[tjracking of the self-propelled underwater vehicle 20 by the
surface vessel 66 . . . can be achieved with various acoustic positioning
systems.” Id. 147. Welker discloses that the surface control unit may send
messages to the underwater vehicles “in the form of an acoustic signal
transmitted from the vessel 66.” Id. f 50. Thus, Welker discloses
determining the current positions of underwater vehicles based on an
acoustic system, which may be installed on the surface vessel. Further,
Bogue discloses that the QUEphones “profile during the ascent to the
surface for data telemetry,” or in other words, are intended to communicate
data at the surface with another device, and that although the range (or
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Application 13/736,331
assigned water-space does not require tracking pingers on the platforms for
sub-surface tracking on the range, Bogue, therefore, suggests that such
pingers are a possibility. Thus, in view of the Examiner’s findings and
teachings of Welker, we determine that it would have been obvious to one of
ordinary skill at the time of the invention to provide at least the boats that
recover the QUEphones of Bogue with an acoustic system for
communicating with (or tracking) Bogue’s QUEphones to determine their
current positions, in order to facilitate their recovery. See Bogue, p. 13.
Accordingly, we reject claim 17, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, Brunet, and Welker.
DECISION
The Examiner’s decision to reject claims 1—5, 7—19, 21, and 22 under
35 U.S.C. § 103(a) is REVERSED.
We enter the following NEW GROUNDS OF REJECTION:
I. Claims 1, 5, 7, 10, and 14—16, under 35 U.S.C. § 103(a) as
unpatentable over Bogue, Schmidt, and Brunet.
II. Claims 2—4, 8, 9, 11—13, 18, 19, 21, and 22, under 35 U.S.C. §
103(a), as unpatentable over Bogue, Schmidt, and Brunet, and alternatively,
also including DeKok and/or Dragoset.
III. Claim 17, under 35 U.S.C. § 103(a), as unpatentable over
Bogue, Schmidt, Brunet, and Welker
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b).
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Application 13/736,331
37 C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant
to this paragraph shall not be considered final for judicial review.” 37
C.F.R. § 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant, within
two months from the date of the decision, must exercise one of the following
two options with respect to the new ground of rejection to avoid termination
of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the Examiner in which event the prosecution will be remanded
to the Examiner. The new ground of rejection is binding upon
the examiner unless an amendment or new Evidence not
previously of Record is made which, in the opinion of the
examiner, overcomes the new ground of rejection designated in
the decision. Should the examiner reject the claims, appellant
may again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record.
The request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been misapprehended
or overlooked in entering the new ground of rejection and also state all other
grounds upon which rehearing is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
REVERSED: 37 C.F.R, $ 41.50(b)
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