Ex Parte Brizard et al

Patent Trial and Appeal Board

Jan 31, 2017

13736342 (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.
13/736,342 01/08/2013 Thierry BRIZARD 0336-138-4/100265 6486
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 and JEAN-PAUL GRUFFEILLE
Appeal 2015-007373
Application 13/736,342
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
Appellants1 2 3seek our review under 35 U.S.C. § 134 of the Examiner’
decision rejecting claims 1-5, 7—11, 13—19, and 21—25.2,3 We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE and enter NEW GROUNDS OF REJECTION
pursuant to our authority under 37 C.F.R. § 41.50(b).
1 Appellants identify the real party in interest as CGGVERITAS
SERVICES SA. Appeal Br. 2.
2 Appeal is taken from the Non-Final Office Action dated August 7, 2014
(“Non-Final Act.”).
3 Appellants identify the appeal of US Application No. 13/736,331 as a
related appeal. Appeal Br. 2.
Appeal 2015-007373
Application 13/736,342
CLAIMED SUBJECT MATTER
Claims 1, 10, 11, 21, 22, 23, 24, and 25 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), at least on buoy having a seismic
receiver for recording the seismic data, a buoyancy system for
maintaining the predetermined depth (HI), and a propulsion
system for adjusting its horizontal position;
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,
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 to a combination of the
underwater currents and the propulsion system, and
a computer system configured to calculate the underwater
current prior to launching the first plural buoys and to determine
a positon of the second line,
wherein the computer system calculates the underwater
currents based on historic data.
REJECTIONS
I. Claims 1, 2, 4, and 7 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt (US 5,894,450; iss. Apr. 13, 1999), Welker (US
2
Appeal 2015-007373
Application 13/736,342
2011/0266086 Al; pub. Nov. 3, 2011), Brunet (US 6,618,321 B2; iss. Sept.
9, 2003), and Bellingham (Bellingham et al., A Small, Long-Range
Autonomous Vehicle for Deep Ocean Exploration, Proceedings of the
Second International Offshore and Polar Engineering Conference
(1992)).
II. Claim 3 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, Brunet, Bellingham, and Ray (US
2008/0192569 Al; pub. Aug. 14, 2008).
III. Claim 5 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, Brunet, Bellingham, and Rouquette (US
7,176,589 B2; iss. Feb. 13, 2007).
IV. Claim 8 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, Brunet, Bellingham, and DeKok (US
6,493,636 Bl; iss. Dec. 10, 2002).
V. Claim 9 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, Brunet, Bellingham, and Dragoset (US
4,992,992; iss. Feb. 12, 1991).
VI. Claim 10 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, Brunet, and Bellingham.4
4 The Examiner implies that the inclusion of Lockwood (US 4,929,124; iss.
May 29, 1990) is an “inadvertent typographical error.” Ans. 14. Indeed,
there are no findings made by the Examiner (see Non-Final Act. 18—24);
thus, we omit Lockwood from the Examiner’s rejection.
3
Appeal 2015-007373
Application 13/736,342
VII. Claims 11 and 14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, and Bellingham.
VIII. Claim 13 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, Bellingham, and Rouquette.
IX. Claim 15 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, Bellingham, Bogue (SOAR Range
Validation Test: Autonomous Buoyancy-Driven Gliders, Autonomous
Surface Vehicles, and Autonomous Profiling Floats, Office of Naval
Research (2011)), and Robertsson (US 6,775,618 Bl; iss. Aug. 10, 2004).
X. Claim 16 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, Bellingham, and Bogue.
XI. Claims 17, 21, and 23 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Schmidt, Welker, Bellingham, and DeKok.
XII. Claims 18, 22, and 24 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Schmidt, Welker, Bellingham, and Dragoset.
XIII. Claims 19 and 25 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Welker, Bellingham, and Vigen (US 7,417,924
B2; iss. Aug. 26, 2008).
4
Appeal 2015-007373
Application 13/736,342
ANALYSIS
Rejection I
Independent claim 1
Regarding independent claim 1, the Examiner finds that because
Schmidt teaches that AUVs* 5 “can drift rather than operate under
propulsion,” Schmidt suggests that “the underwater apparatus are buoys.”
Non-Final Act. 9 (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 at sea 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 8.
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.
Appellants argue 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. 20.
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
5 Autonomous Underwater Vehicles. See, e.g., Schmidt 4:14—15.
5
Appeal 2015-007373
Application 13/736,342
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. 134) and a buoyancy system configured to control the buoyancy of
the buoy body for traveling underwater at a specific depth (id. 116), and
also, optionally, a control unit including a processor, memory, and
differential global positioning system (id. 141), a processor to control the
vertical speed of the buoy (id. 151), wherein the processor is connected to a
battery, clock module, RF beacon and antenna (id. 1 52), an inertial device, a
propulsion system with a motor and propeller (id. 1 56), and a
communication interface (id. 1 58). 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, Appellants’ invention
as recited in claims 1 and 10 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 bottom of the body of water. Thus, a broadest reasonable interpretation
consistent with Appellants’ Specification of the claim term “buoy” 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. Schmidt discloses
that “while the array of FIGS. 1 and 2 utilizes autonomous underwater
vehicles [(or AUVs)], underwater arrays in accordance with the invention
may utilize manned, tethered and/or autonomous underwater vehicles, or
6
Appeal 2015-007373
Application 13/736,342
combinations of such vehicles.” Schmidt 6:45—49. Schmidt describes an
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 Appellants that Schmidt
does not disclose that the AUV is a buoy, or an object floating in a body of
water that 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.
Appellants also argue, 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. 21—23; 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 Appellants that the Examiner’s findings of inherency are
speculative and not supported by a preponderance of the evidence.
7
Appeal 2015-007373
Application 13/736,342
Accordingly, we do not sustain the Examiner’s rejection of
independent claim 1, and claims 2, 4, and 7 depending therefrom, under 35
U.S.C. § 103(a), as unpatentable over Schmidt, Welker, Brunet, and
Bellingham.
Rejections II—V
Claims 3, 5, 8, and 9 depend from independent claim 1. The
Examiner’s findings with respect to Ray, Rouquette, DeKok, and Dragoset
fail to cure the deficiencies in the Examiner’s findings with respect to
Schmidt as discussed supra. See Non-Final Act. 14—18. Therefore, we also
do not sustain the Examiner’s rejections of claims 3, 5, 8, and 9, under 35
U.S.C. § 103(a), as unpatentable over Schmidt, Welker, Brunet, Bellingham
and any of Ray, Rouquette, DeKok, and Dragoset.
Rejections VI and VII
Independent claims 10 and 11 also require “first plural buoys,” and
“launching, along the starting line, first plural buoys from a first vessel” or
“a first vessel configured to launch the first plural buoys” (Appeal Br. 49, 50
(Claims App.)), and the Examiner relies on the same findings from Schmidt
in the rejection of claims 10 and 11 as the Examiner relied upon in the
rejection of claim 1 supra. See Non-Final Act. 18—28. Thus, for the same
reasons stated supra, we do not sustain the Examiner’s rejection of claims 10
as unpatentable over Schmidt, Welker, Brunet, and Bellingham and 11, and
claim 14 depending from claim 11, under 35 U.S.C. § 103(a), as
unpatentable over Schmidt, Welker, and Bellingham.
8
Appeal 2015-007373
Application 13/736,342
Rejections VIII—X
Claims 13, 15, and 16 depend from independent claim 11. The
Examiner’s findings with respect to Rouquette and Bogue fail to cure the
deficiencies in the Examiner’s findings with respect to Schmidt as discussed
supra. See Non-Final Act. 28—30. Therefore, we also do not sustain the
Examiner’s rejections of claims 13, 15, and 16, under 35 U.S.C. § 103(a), as
unpatentable over Schmidt, Welker, Bellinghamand either Rouquette or
Bogue.
Rejection XI
Independent claims 21 and 23 also require “first plural buoys,” and “a
first vessel configured to launch the first plural buoys” (Appeal Br. 52, 53
(Claims App.)), and the Examiner relies on the same findings from Schmidt
in the rejection of claims 21 and 23 as the Examiner relied upon in the
rejection of claim 1 supra. See Non-Final Act. 18—28. Claim 17 depends
from claim 11, and we do not sustain claim 11, as set forth supra. Thus, for
the same reasons stated supra, we do not sustain the Examiner’s rejection of
claims 17, 21, and 23, under 35 U.S.C. § 103(a), as unpatentable over
Schmidt, Welker, Bellingham, and DeKok.
Rejection XII
Independent claims 22 and 24 also require “first plural buoys,” and “a
first vessel configured to launch the first plural buoys” (Appeal Br. 52—53,
54—55 (Claims App.)), and the Examiner relies on the same findings from
Schmidt in the rejection of claims 22 and 24 as the Examiner relied upon in
the rejection of claim 1 supra. See Non-Final Act. 43—54. Claim 18
9
Appeal 2015-007373
Application 13/736,342
depends from claim 11, and we do not sustain claim 11, as set forth supra.
Thus, for the same reasons stated supra, we do not sustain the Examiner’s
rejection of claims 18, 22, and 24, under 35 U.S.C. § 103(a), as unpatentable
over Schmidt, Welker, Bellingham, and Dragoset.
Rejection XIII
Independent claim 25 also requires “first plural buoys,” and “a first
vessel configured to launch the first plural buoys” (Appeal Br. 55 (Claims
App.)), and the Examiner relies on the same findings from Schmidt in the
rejection of claim 25 as the Examiner relied upon in the rejection of claim 1
supra. See Non-Final Act. 55—61. Claim 19 depends from claim 11, and we
do not sustain claim 11, as set forth supra. Thus, for the same reasons stated
supra, we do not sustain the Examiner’s rejection of claims 19 and 25, under
35 U.S.C. § 103(a), as unpatentable over Schmidt, Welker, Bellingham, and
Vigen.
NEW GROUNDS OF REJECTION
Rejection I— Claims 1, 5, 7, and 10, 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 receiver6 for recording data. In support, Bogue discloses
6 See Spec. 133 (“The seismic receivers may include ... a hydrophone.”).
10
Appeal 2015-007373
Application 13/736,342
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.
Bogue, p. 13, Fig. 9. Thus, the QUEphones, or profiling floats, are buoys.
This passage from Bogue also describes the QUEphones as having a
buoyancy system for maintaining the position of the profiling floats at a
desired depth.
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 other words, the buoys are launched to follow a path underwater
along a distance (D) between the first and second vessels. 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
11
Appeal 2015-007373
Application 13/736,342
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 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 first
plural buoys (or two QUEphones) at a second line (i.e., the line between the
QUEphones after traveling underwater and resurfacing), which is a distance
from the first line based on ocean currents and the speed that the
QUEphones drift at a certain depth per unit time. 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 to the underwater currents, as claimed, and
also that the distance between the first and second lines is predetermined
based on the distance the QUEphones drift due to ocean currents, in order to
maintain the QUEphones within the range area. See also Bogue, p. 18
(“[sjince the QUEphones are passive, they drift with the prevailing ocean
current at their neutrally-buoyant depth.”).
Bogue does not disclose, however, that the QUEphones have an on­
board (or active) propulsion system, for adjusting its horizontal position or
to maintain a given position underwater while recording the seismic data.
However, Schmidt discloses an oceanographic sampling system and method
12
Appeal 2015-007373
Application 13/736,342
wherein “[t]wo or more underwater vehicles are disposed in an array,” and
that “[e]ach underwater vehicle includes a propulsion system for moving the
underwater vehicle independently of the other ones of the underwater
vehicles.” Schmidt 3:44-48. As stated supra, Schmidt discloses that the
underwater vehicle “may move to any X-Y coordinates and depth within the
ocean volume being monitored” {id. at 6:32—35) and that the propulsion
system is used to adjust or maintain the position of the underwater vehicle
underwater, in that “CPU 120 may compare the position data provided by
the navigation subsystem 140 with a desired position and issue corrections to
the propulsion motor 90” {id. at 7:61—64).7
Thus, we determine that it would have been obvious to one of
ordinary skill in the art at the time the invention was made to modify
Bogue’s two-device array comprised of profiling floats to include profiling
floats having a propulsion system for adjusting the horizontal position of the
profiling float or to adjust or maintain the underwater vehicle while
recording data, as claimed, in order to provide a greater degree of control
over the movements of the profiling floats during the exercise, as taught by
Schmidt. For example, Bogue discloses the need to reposition the profiling
floats in the event the profiling floats are off-course or outside of the
assigned water-space due to the currents. See Bogue, p. 18. Thus, the
7 Notably, Bogue also discloses different types of passive autonomous
acoustic monitoring program systems, including “three types of buoyancy-
driven underwater gliders, an autonomous surface platform, and two types of
freely drifting profiling floats” (Bogue, pp. 2—3), wherein at least the
Waveglider is disclosed as having a propulsion system {id. at p. 12).
13
Appeal 2015-007373
Application 13/736,342
profiling floats of Bogue, as modified to include a propulsion system as
taught by Schmidt, would be configured to move due to a combination of
underwater currents and a propulsion system, as claimed.
Although Bogue discloses that the array of two QUEphones is used to
monitor marine mammals in an assigned water-space, and not for conducting
a seismic survey, wherein the hydrophones record seismic data, as claimed
(Bogue, Title (“Passive Autonomous Acoustic Monitoring of Marine
Mammals”), p. 18), Schmidt discloses that it is known to use mobile arrays
of underwater vehicles 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 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, as
taught by Schmidt.
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.
14
Appeal 2015-007373
Application 13/736,342
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 KSRInt'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“when [an
application] claims a structure already known in the prior 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 IJ.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 finish line is within the assigned water-space. Thus, the
15
Appeal 2015-007373
Application 13/736,342
modification of Bogue, in view of Brunet, would result in a computer
assessing currents to determine a position of the second line (i.e., 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 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. Non-Final Act. 11.
Accordingly, we reject independent claim 1, under 35 U.S.C.
§ 103(a), as unpatentable over Bogue, Schmidt, and Brunet.
Dependent claim 5
Claim 5 depends from claim 1, and further recites “wherein the
predetermined distance is larger than 10 km.” Appeal Br. 48 (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 claim 5, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, and Brunet.
Dependent claim 7
Claim 7 depends from claim 1, and further recites that “the computer
system is configured to receive current positions of the plural buoys, and to
calculate new trajectories of the underwater currents based on the current
positions of the first plural buoys.” Appeal Br. 48 (Claims App.). Bogue
16
Appeal 2015-007373
Application 13/736,342
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 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 track 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. at 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 claim 7, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, and Brunet.
17
Appeal 2015-007373
Application 13/736,342
Independent claim 10
Regarding independent claim 10, to the extent claim 10 recites the
same claim limitations as are recited in claim 1, we apply the same findings
and reasoning to claim 10 as applied to claim 1 supra. Claim 10 further
requires “determining trajectories of the underwater currents based on
historic data” (Appeal Br. 49 (Claims App.)), and we apply the same
findings and reasoning with respect to this claim limitation as applied to
claim 7 supra.
Claim 10 also requires selecting starting and finish lines for the first
plural buoys, which are substantially perpendicular to the underwater
currents. Appeal Br. 49 (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. 11. In other words, deploying the
QUEphones in a line substantially perpendicular to the underwater currents
18
Appeal 2015-007373
Application 13/736,342
results in the QUEphones being horizontally distributed across the area of
the assigned water-space, rather than 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.
Accordingly, we reject independent claim 10, under 35 U.S.C.
§ 103(a), as unpatentable over Bogue, Schmidt, and Brunet.
Rejection II— Claims 2, 3, 4, 8, 9, 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, and 9
Claims 2, 3, 8, and 9 depend from independent claim 1, 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 (claim 2), or
waves of buoys to cover a desired area for collecting the seismic data (claim
2), or second plural buoys configured to descend to a second predetermined
depth in water (claim 8) or to form a variable-depth profile (claim 9).
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
19
Appeal 2015-007373
Application 13/736,342
array in the ocean volume of interest, the direction of movement
of the AUV array, the speed of the AUV array, and any other
parameters that are required to define a particular mission.
Schmidt 9:49-59 (emphasis added). As stated supra, Bogue discloses that
the profiling floats are launched by a ship and also 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 have been obvious to one skilled in the art
at the time of the invention to launch a second set of QUEphones later in
time than Bogue’s first two QUEphones, or to launch the QUEphones in
waves, in order to create a larger horizontal array for monitoring the
assigned water-space, in view of Schmidt’s teaching that the size of the array
and orientation of the array (i.e., a horizontal array) are known result-
effective variables for monitoring arrays. Further, we determine that it
would have been obvious to one skilled in the art at the time of the invention
to configure a second set of QUEphones to descend to a predetermined
depth other than 1000 m to form a vertical array or a variable-depth profile
for monitoring the assigned water-space, in view of Schmidt’s teaching that
the size of the array and orientation of the array (i.e., a vertical array) are
known result-effective variables for monitoring arrays. This flexibility is
recognized in the art, as stated supra, when using profiling floats in an array,
as taught by Bogue, for conducting a seismic survey.
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
20
Appeal 2015-007373
Application 13/736,342
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 2:48—50, 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 Non-Final Act. 17 (“[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. at 16 (citing DeKok, Abstract, 8:10-9:25, Figs. 2A, 9A,
9C)) and further on Dragoset for teaching “seismic sensors disposed
underwater along a slanted profile” (id. at 17 (citing Dragoset, Abstract, Fig.
1)). Thus, in view of the Examiner’s findings, we further determine that it
would have been obvious to 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, for example in waves, to create a horizontal array,
and/or set to different neutrally-buoyant depths to create a vertical array, or a
combination thereof, in order to form equivalent configurations of
hydrophone arrays, as are employed via streamers, as taught by Schmidt,
and DeKok or Dragoset.
Accordingly, we reject claims 2, 3, 8, and 9 under 35 U.S.C. § 103(a),
as unpatentable over Bogue, Schmidt, and Brunet, and alternatively, also
including DeKok and/or Dragoset.
21
Appeal 2015-007373
Application 13/736,342
Dependent claim 4
Claim 4 depends from claim 2, and further recites “wherein the
second vessel is configured to move back and forth along the second line to
recover the second plural buoys.” Appeal Br. 48 (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 drifted 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, to form a
horizontal array, as recited in claim 2.) 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.” Non-Final
Act. 13.
Accordingly, we reject claim 4, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, and Brunet, and alternatively, also
including DeKok and/or Dragoset.
22
Appeal 2015-007373
Application 13/736,342
Independent claim 21
Regarding independent claim 21, to the extent claim 21 recites the
same claim limitations as are recited in claim 1, we apply the same findings
and reasoning to claim 21 as applied to claim 1 supra. Claim 21 further
recites “second plural buoys configured to descend to a second
predetermined depth in water” (Appeal Br. 52 (Claims App.), and we apply
the same findings and reasoning with respect to this claim limitation as we
applied to claim 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, to the extent claim 22 recites the
same claim limitations as are recited in claim 1, we apply the same findings
and reasoning to claim 22 as applied to claim 1 supra. Claim 22 further
recites that “second plural buoys [are] configured to descend in water to
form a variable-depth profile” (Appeal Br. 52—53 (Claims App.)), and we
apply the same findings and reasoning with respect to this claim limitation
as we applied to claim 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.
23
Appeal 2015-007373
Application 13/736,342
Rejection III— Claims 11, 13, 14, and 16, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, Brunet, and Welker
Independent claim 11
Regarding independent claim 11, to the extent claim 10 recites the
same claim limitations as are recited in claim 1, we apply the same findings
and reasoning to claim 11 as applied to claim 1 supra.
Claim 11 further requires that the first plural buoys are configured to
descend “at a given position in a plane substantially parallel with a water
surface.” Appeal Br. 49 (Claims App.). The Examiner found that because
Schmidt teaches that “the depth for operation [(of the AUVs)] can be fixed
and preprogrammed, . . . maintaining a preprogrammed depth implies a
position in a horizontal plane, i.e., substantially parallel with a water
surface.” Non-Final Act. 24—25 (citing Schmidt 5:28—37). We agree.
Moreover, Schmidt discloses that the depth of the AUVs within the array is
a result-effective variable, and we determine that it would have been obvious
to one skilled in the art at the time of the invention to design an array
wherein Bogue’s two QUEphones descend to the same depth. Additionally,
Bogue discloses that the neutrally-buoyant depth of the two QUEphones is
set to about 1000 m, such that “[t]hey will stay at this depth . . . and drift
with the current.” Bogue, p. 18. Thus, Bogue’s two QUEphones are
configured to descend at a given position (1000 m below the water’s
surface) in a plane substantially parallel with the water’s surface, and
therefore, Bogue teaches this limitation of claim 11.
24
Appeal 2015-007373
Application 13/736,342
Independent claim 11 also recites “a first acoustic system attached to
the first vessel and configured to detect a position of the at least one buoy
while underwater; and a second acoustic system attached to the second
vessel and configured to detect the position of the at least one buoy while
underwater.” Appeal Br. 50 (Claims App.). The Examiner found that
Welker teaches “providing acoustic positioning to the underwater apparatus
from a first vessel.” Non-Final Act. 26 (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 sub-surface 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 and also that an acoustic system is
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. Bogue, p. 13. Thus, in view of the Examiner’s findings and
25
Appeal 2015-007373
Application 13/736,342
teachings of Welker, we determine that it would have been obvious to one of
ordinary skill at the time of the invention to provide the launch and recover
boats of Bogue with an acoustic system for communicating with Bogue’s
QUEphones to determine their current positions, in order to facilitate their
deployment and recovery. See Bogue, p. 13.
Accordingly, we reject claim 11, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, Brunet, and Welker.
Dependent claims 13
Claim 13 depends from claim 11, and further recites “wherein a
horizontal distance (d) between two adjacent buoys of the set of buoys is
between 10 m and 200 m and the distance (D) is about 10 km.” Appeal Br.
50 (Claims App.). As discussed supra, Schmidt expressly discloses that the
“spacing between AUVs” is recognized as result-effective variable for
underwater vehicle monitoring arrays. Schmidt 9:49-59. Thus, we
determine that it would have been obvious to one skilled in the art at the
time of the invention to design an array wherein Bogue’s two QUEphones
are separated horizontally by 10 to 200 m, depending upon the requirements
for monitoring the assigned water-space. Additionally, the Examiner found,
and we agree, that because Schmidt teaches “a communication system
between underwater apparatus with a required range of about 10 to 20 m,”
Schmidt suggests that “a horizontal distance (d) between two adjacent buoys
of the set of buoys is between 10m and 200 m.” Non-Final Act. 28.
Regarding distance (D), we note that the distance (D) between the first and
second vessels is analogous to the predetermined distance between the first
26
Appeal 2015-007373
Application 13/736,342
and second lines of claim 1, and apply our findings and reasoning as stated
supra with respect to claim 5.
Accordingly, we reject claim 13, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, Brunet, and Welker.
Dependent claim 14
Claim 14 depends from claim 11, and further recites “wherein the set
of buoys form the equivalent of a traditional streamer.” Appeal Br. 50
(Claims App.). As discussed supra, 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 2:48—50, 64—67. In other
words, as determined by the Examiner, Schmidt teaches one skilled in the art
that underwater arrays are a substitute for, or an equivalent of, towed arrays.
See Non-Final Act. 21, 28 (“[Schmidt] suggests that the set of buoys form
the equivalent of a traditional streamer.”).
Accordingly, we reject claim 14, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, Brunet, and Welker.
Dependent claim 16
Claim 16 depends from claim 11, and further recites “wherein the first
predetermined depth (HI) is larger than a depth is about 200 m or more.”
Appeal Br. 51 (Claims App.). Bogue discloses a predetermined depth (HI)
27
Appeal 2015-007373
Application 13/736,342
for the profiling floats of 1000 m, which is within the range of about 200 m
or more. See Bogue, p. 18.
Accordingly, we reject claim 16, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, Brunet, and Welker.
Rejection IV— Claim 15, under 35 U.S.C. §103(a), as unpatentable over
Bogue, Schmidt, Brunet, and Welker, and Robertsson and/or DeKok
Dependent claim 15
Claim 15 depends from claim 11, and further recites “wherein the first
predetermined depth (HI) is larger than a depth of a traditional streamer.”
Appeal Br. 51 (Claims App.). As stated supra, Bogue discloses a
predetermined depth (HI) for the profiling floats of 1000 m. See Bogue, p.
18. The Examiner found that Robertsson teaches “a traditional streamer
depth to be 6-10 m” (Non-Final Act. 30 (citing Robertsson 6:54—57), and we
also note that DeKok discloses streamer depths of 23.44 and 31.25 meters.
DeKok 6:54, 56. Because Bogue’s disclosure of 1000 meters is at least ten
times greater than the streamer depths disclosed in Robertsson and DeKok,
we conclude that Bogue teaches that the depth (HI) of the QUEphones is
larger than the depth of a traditional streamer, as required by claim 15.
Accordingly, we reject claim 15 under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, Brunet, and Welker, and Robertsson
and/or DeKok.
28
Appeal 2015-007373
Application 13/736,342
Rejection V— Claims 17, 18, 23, and 24, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, Brunet, and Welker, and alternatively,
DeKok and/or Dragoset.
Dependent claims 17 and 18
Claims 17 and 18 depend from claim 11, and further recite “second
plural buoys configured to descent to a second predetermined depth (H2) in
water” or “to form a variable-depth profile.” Appeal Br. 51 (Claims App.).
Regarding these limitations, we apply the same findings and reasoning to
claims 17 and 18 as applied to claims 8 and 9 supra.
Claims 17 and 18 further recite “wherein the first and second plural
buoys span a distance (D) between the first vessel and the second vessel.”
The Examiner determined that “it is inherent that buoys launched from a
first boat. . . and retrieved by a second boat. . . would have to be between
the two boats” (Non-Final Act. 31, 43), which Appellants do not dispute.
See Appeal Br. 19-45; Reply Br. 2—7. In support, we note that, as discussed
supra, Bogue discloses that the QUEphones travel within the distance
between the launch and recovery vessels, and therefore, we agree with the
Examiner that the QUEphones must necessarily span (or bridge) that
distance.
Accordingly, we reject claims 17 and 18, under 35 U.S.C. § 103(a),
as unpatentable over Bogue, Schmidt, Bmnet, and Welker, and alternatively,
also including DeKok and Dragoset.
29
Appeal 2015-007373
Application 13/736,342
Independent claim 23
Regarding independent claim 23, to the extent claim 23 recites the
same claim limitations as are recited in claim 1, we apply the same findings
and reasoning to claim 23 as applied to claim 1 supra. Claim 23 further
recites that the first plural buoys are configured to “at a given position in a
plane substantially parallel with a water surface” (Appeal Br. 53 (Claims
App.)), and we apply the same findings and reasoning with respect to this
claim limitation as we applied to claim 11 supra. Claim 23 also recites first
and second acoustic systems attached to the first and second vessels (id. at
54 (Claims App.)), and we apply the same findings and reasoning with
respect to this claim limitation as we applied to claim 11 supra. Claim 23
further recites “second plural buoys configured to descend to a second
predetermined depth (H2) in water” (id.), and we apply the same findings
and reasoning with respect to this claim limitation as we applied to claim 8
supra. Finally, claim 23 recites “wherein the first and second plural buoys
span a distance (D) between the first vessel and the second vessel” (id. at 54
(Claims App.)), and we apply the same findings and reasoning with respect
to this claim limitation as we applied to claim 17 supra.
Accordingly, we reject claim 23 under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, Brunet, and Welker, and alternatively,
DeKok and/or Dragoset.
Independent claim 24
Regarding independent claim 24, to the extent claim 24 recites the
same claim limitations as are recited in claim 1, we apply the same findings
30
Appeal 2015-007373
Application 13/736,342
and reasoning to claim 24 as applied to claim 1 supra. Claim 24 further
recites first and second acoustic systems attached to the first and second
vessels {id. at 54 (Claims App.)), and we apply the same findings and
reasoning with respect to this claim limitation as we applied to claim 11
supra. Claim 24 further recites “second plural boys configured to descend in
water to form a variable-depth profile” {id. at 54—55 (Claims App.)), and we
apply the same findings and reasoning with respect to this claim limitation
as we applied to claim 9 supra. Claim 24 also recites “wherein the first and
second plural buoys span a distance (D) between the first vessel and the
second vessel” {id. at 55 (Claims App.)), and we apply the same findings
and reasoning with respect to this claim limitation as we applied to claim 17
supra.
Accordingly, we reject claim 24 under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, Brunet, and Welker, and alternatively,
DeKok and/or Dragoset.
Rejection VI— Claims 19 and25 under 35 U.S.C. § 103(a) as unpatentable
over Bogue, Schmidt, Brunet, Welker, and Vigen
Dependent claim 19
Claim 19 depends from claim 11, and further recites “wherein each of
the first and second acoustic systems includes at least two acoustic pingers,8
8 An ordinary definition of the claim term “pinger,” in consistent with the
Specification, is “a device that produces pinging noises, especially one used
as part of underwater detection equipment.” Microsoft Encarta College
31
Appeal 2015-007373
Application 13/736,342
each pinger being configured to emit an acoustic wave with a unique
frequency.” Appeal Br. 51 (Claims App.). The Examiner found that Vigen
teaches “multiple pingers on a single vessel each having distinctive signals”
and concluded that “one of ordinary skill in the art would appreciate that
unique frequencies can be utilized” (Non-Final Act. 55 (citing Vigen, 7:20-
32, 45—47)), and that the use of the pingers, as claimed, is an obvious matter
of design choice.
Indeed, Vigen discloses that “[t]wo or more acoustic transmitters 1 are
fitted onto the hull of the cable deployment vessel 3 riding on sea surface 5”
(Vigen 7:20—21) and that “[w]hen the system is operated, transmitters 1 send
synchronized broad spectrum and coded signals” {id. at 7:45 46). Vigen
further discloses that “a multitude of transmitters 1 send[] different signals
that are received by one or more receivers 2” {id. at 7:57—60), wherein “the
seismic receivers on or in the cable must be transponders or transducers
capable of receiving and transmitting acoustic signals” {id. at 8:1—3).
Further, Vigen states that “[ujseful transmitters 1 are those able to transmit
spread spectrum signals that are unique acoustic signals lying within a
frequency band that receivers 2 (hydrophones) are capable of detecting.” Id.
at 9:18—21. Bogue discloses that “pingers” are not required on the platforms
for sub-surface tracking, and thus, Bogue teaches one skilled in the art that
pingers are an option for sub-surface tracking, and Bogue’s profiling floats
are disclosed as a sub-surface device. Bogue, p. 21. Thus, we determine
Dictionary 1102 (2001).
32
Appeal 2015-007373
Application 13/736,342
that it would have been obvious to one skilled in the art to provide first and
second acoustic systems on Bogue’s launch and recovery vessels, as
discussed supra with respect to claim 11, and also to design the systems to
include at least two acoustic pingers configured to emit an acoustic wave
with a unique frequency, because Bogue suggests that pingers may be used
(although they are not required) to track the sub-surface devices and Schmidt
discloses that the arrays may be expanded horizontal and vertically, whereby
additional pingers with unique frequency emissions may be helpful.
Accordingly, we reject claim 19 under 35 U.S.C. § 103(a) as
unpatentable over Bogue, Schmidt, Brunet, Welker, and Vigen.
Independent claim 25
Regarding independent claim 25, to the extent claim 25 recites the
same claim limitations as are recited in claim 1, we apply the same findings
and reasoning to claim 25 as applied to claim 1 supra. Claim 25 further
recites first and second acoustic systems attached to the first and second
vessels (id. at 55 (Claims App.)), and we apply the same findings and
reasoning with respect to this claim limitation as we applied to claim 11
supra. Claim 25 further recites “wherein each of the first and second
acoustic systems includes at least two acoustic pingers, each pinger being
configured to emit an acoustic wave with a unique frequency” (id. at 56
(Claims App.)), and we apply the same findings and reasoning with respect
to this claim limitation as we applied to claim 19 supra.
Accordingly, we reject claim 25 under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, Brunet, Welker, and Vigen.
33
Appeal 2015-007373
Application 13/736,342
DECISION
The Examiner’s decision to reject claims 1-5, 7—11, 13—19, and 21—
25, under 35 U.S.C. § 103(a), is REVERSED.
We enter the following NEW GROUNDS OF REJECTION:
I. Claims 1, 5, 7, and 10, under 35 U.S.C. § 103(a) as
unpatentable over Bogue, Schmidt, and Brunet.
II. Claims 2, 3, 4, 8, 9, 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. Claims 11, 13, 14, and 16, under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, Brunet, and Welker.
IV. Claims 15 under 35 U.S.C. § 103(a), as unpatentable over
Bogue, Schmidt, Brunet, and Welker, and Robertsson and/or DeKok.
V. Claims 17, 18, 23, and 24 under 35 U.S.C. § 103(a), as
unpatentable over Bogue, Schmidt, Brunet, and Welker, and alternatively,
DeKok and/or Dragoset.
VI. Claims 19 and 25 under 35 U.S.C. § 103(a) as unpatentable
over Bogue, Schmidt, Brunet, Welker, and Vigen.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b).
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:
34
Appeal 2015-007373
Application 13/736,342
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.
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).
REVERSED: 37 C.F.R, $ 41.50(b)
35