Ex Parte Brizard et alDownload PDFPatent Trial and Appeal BoardNov 14, 201713616396 (P.T.A.B. Nov. 14, 2017) Copy Citation 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. 13/616,396 09/14/2012 Thierry BRIZARD 0336-123-2/100183 6162 11171 7590 11/16/2017 Patent Portfolio Builders, PLLC P.O. Box 7999 Fredericksburg, VA 22404 EXAMINER ARMSTRONG, JONATHAN D ART UNIT PAPER NUMBER 3645 NOTIFICATION DATE DELIVERY MODE 11/16/2017 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 eofficeaction @ appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THIERRY BRIZARD, ALICE HERVE, ERWAN POSTIC, PETER MAXWELL, ROBERT DOWLE, and SALVADOR RODRIGUEZ Appeal 2016-005028 Application 13/616,3961 Technology Center 3600 Before JOSEPH A. FISCHETTI, PHILIP J. HOFFMANN, and MATTHEW S. METERS, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. According to Appellants, their invention relates “to mechanisms and techniques for performing a marine seismic survey using autonomous underwater vehicles (AUVs) that carry appropriate seismic sensors.” Spec. 1 According to Appellants, “[t]he real party in interest is . . . CGGVERITAS SERVICES SA.” Appeal Br. 2. Appeal 2016-005028 Application 13/616,396 12. Claims 1,10, and 18 are the independent claims on appeal. Below, we reproduce claim 1 as illustrative of the appealed claims. 1. A method for performing a marine seismic survey of a subsurface, the method comprising: deploying under water, from a deploying vessel, an autonomous underwater vehicle (AUV); recording with seismic sensors located on the AUV seismic waves generated by an acoustic source array; instructing the AUV to surface at a certain depth relative to the water surface; recovering the AUV by bringing the AUV on a recovery vessel; and transferring recorded seismic data to the recovery vessel. APPEALED REJECTIONS AND PRIOR ART2 The Examiner rejects claim 1 as being patentably indistinct from claims 16 and 19 of U.S. patent application no. 13/616,327, based on “same invention” double patenting. The Examiner rejects claims 1—5, 8, 10-13, 16, and 18—20 under 35 U.S.C. 103(a) as unpatentable over Colangelo (US 2010/0000459 Al, pub. Jan. 7, 2010) and Schmidt (US 5,894,450, iss. Apr. 13, 1999). 2 The Examiner also rejects claims 1, 6, 7, 10, 14, 15, and 18—20 on the ground of non-statutory double-patenting. See Final Action 3—7. Appellants do not argue against the non-statutory double patenting rejections, but, instead, “wait[ ] for approval of the [previously-filed] [TJerminal [Disclaimer” to overcome the rejections. Appeal Br. 4. The Answer indicates that the Terminal Disclaimer has yet to be accepted. Answer 3. Thus, we summarily affirm the non-statutory double patenting rejections. 2 Appeal 2016-005028 Application 13/616,396 The Examiner rejects claims 6, 7, 14, and 15 under 35 U.S.C. 103(a) as unpatentable over Colangelo, Schmidt, and Ambs (US 6,474,254 Bl, iss. Nov. 5, 2002). The Examiner rejects claims 9 and 17 under 35 U.S.C. 103(a) as unpatentable over Colangelo, Schmidt, and William, T. M., The Journal of the Operational Research Society, Vol. 43, No. 1 (1992), pp. 11—18 (“Williams”). ANALYSIS Rejection of claim 1 as being patentably indistinct from claims of another application (statutory double patenting) Appellants argue that the Examiner’s rejection of claim 1 as being patentably indistinct from claims 16 and 19 of U.S. patent application no. 13/616,327 “is improper and should be withdrawn.” Appeal Br. 3. More specifically, notwithstanding that the Final Office Action was mailed on August 10, 2015, Appellants point out that U.S. [pjatent [application [n]o. 13/616,327 issued as U.S. [pjatent [n]o. 8,881,665[,] on November 11, 2014 (“the ’665 patent”). The ’665 patent includes only 18 claims as issued. Therefore, claim 1 of the present application cannot be patentably indistinct from claim 19, as claim 19 does not exists. [Further, the ’665 patent’s claim] 16 is a dependent claim[,] which includes recitations directed to a damaged AUV. Claim 1 of the present invention is not directed to and does not include any recitations regarding a damaged AUV. [Appellants] note that[,] in general, the ’665 patent includes claims directed to a vessel for performing a maritime acoustic survey. The claims are not directed to systems and methods for launching an AUV under water from a vessel. Appeal Br. 3^4. The Examiner does not respond, in the Answer, to Appellants’ argument. Based on our review of the record, the Examiner 3 Appeal 2016-005028 Application 13/616,396 fails to establish adequately that claim 1 is patentably indistinct from any claims of U.S. patent application no. 13/616,327, and, therefore, we do not sustain the rejection. Obviousness rejection of claims 1—5, 8, 10—13, 16, and 18—20 Independent claim 1 recites, in relevant part, “deploying under water, from a deploying vessel, an autonomous underwater vehicle (AUV).” Appeal Br., Claims App. Restated, the plain language of claim 1 recites that the underwater vehicle is deployed under water from the deploying vessel. We do not agree with the Examiner that one may broadly and reasonably interpret the claim recitation “to include deploying (of an autonomous underwater vehicle or AUV) which may be performed/initiated above . . . the water surface/line, so long as [the] AUV is deployed underwater at some point in time.” Answer 3. Rather, as set forth above, claim 1 recites that the vehicle is deployed, from the vessel, under the water. Based on our review of the record, the Examiner does not support adequately the finding that Colangelo discloses deploying an underwater vehicle, from a vessel, under water, as claimed. Although the Examiner finds that “Colangelo does teach the deploying of ‘LCACs (or similar). . . naval vessels’ [0005] from a ‘hoistable platform . . . thereon [a] ramp’ [0004] also referred to as a ‘specialized elevator system’ [0003] which maybe ‘raised from underwater . . . [or] submerge[ed]’ [0014]” (Answer 4), none of these paragraphs of Colangelo discloses deploying a vehicle under water from a vessel. Instead, we are in agreement with Appellants that [while claim 1 recites that it] is the vessel itself, i.e., the AUV, [which] is deployed under water, i.e., below the surface of the water[,]... [the] vessels of Colangelo are not underwater vessels but surface vessels. They cannot be deployed below the surface 4 Appeal 2016-005028 Application 13/616,396 of the water. In Colangelo, it is the launch platform and not the vessel that can be positioned below the surface of the water. In particular, the stem appendage includes a platform that is lowered to “the down position (horizontal)... to a depth below the surface of the water which will permit the approaching off- cushion LCAC 21 to float above the platform 1.” Reply Br. 5 (referencing Colangelo 196). Thus, based on the foregoing, we do not sustain the obviousness rejection of claim 1. We also do not sustain the rejection of independent claims 10 and 18, which recite similar recitations and which the Examiner rejects based on similar rationales, for the same reasons we do not sustain claim 1 ’s rejection. Further, for the same reasons that we do not sustain the independent claims’ rejection, we do not sustain the rejection of claims 2—5, 8, 11—13, 16, 19, and 20 that depend from the independent claims. Obviousness rejection of claims 6, 7, 14, and 15 Each of claims 6, 7, 14, and 15 depends from an independent claim whose rejection we do not sustain. Inasmuch as the Examiner does not demonstrate that any reference remedies the deficiency in the independent claims’ rejection, we do not sustain the dependent claims’ rejection. Obviousness rejection of claims 9 and 17 Each of claims 9 and 17 depends from an independent claim whose rejection we do not sustain. Inasmuch as the Examiner does not demonstrate that any reference remedies the deficiency in the independent claims’ rejection, we do not sustain the dependent claims’ rejection. DECISION We summarily AFFIRM the Examiner’s non-statutory double patenting rejections of claims 1, 6, 7, 10, 14, 15, and 18—20. 5 Appeal 2016-005028 Application 13/616,396 We REVERSE the Examiner’s rejection of claim 1 as being patentably indistinct from claims 16 and 19 of U.S. patent application no. 13/616,327. We REVERSE the Examiner’s rejections of claims 1—20 under 35 U.S.C. § 103(a). AFFIRMED-IN-PART 6 Copy with citationCopy as parenthetical citation