Ex Parte Eick et alDownload PDFPatent Trial and Appeal BoardMay 1, 201813153174 (P.T.A.B. May. 1, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/153, 174 06/03/2011 28841 7590 ConocoPhillips Company 600 North Dairy Ashford Houston, TX 77079-1175 05/03/2018 FIRST NAMED INVENTOR Peter M. Eick UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www .uspto.gov ATTORNEY DOCKET NO. CONFIRMATION NO. 41152US 8435 EXAMINER BAGHDASARYAN,HOVHANNES ART UNIT PAPER NUMBER 3645 NOTIFICATION DATE DELIVERY MODE 05/03/2018 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): Legal-IP@conocophillips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PETER M. EICK and JOEL D. BREWER Appeal 2017-008211 Application 13/153,174 1 Technology Center 3600 Before MICHAEL C. ASTORINO, AMEE A. SHAH, and ALYSSA A. FINAMORE, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL The Appellants appeal under 35 U.S.C. § 134 from the Examiner's decision rejecting claims 1-10. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 According to the Appellants, "[t]he real party in interest in this Appeal is CONOCOPHILLIPS COMPANY." Br. 1. Appeal 2017-008211 Application 13/153, 174 STATEMENT OF THE CASE Claimed Subject Matter Claim 1, the sole independent claim, is representative of the subject matter on appeal and is reproduced below with added emphasis. 1. A method of determining an optimal flare spacing for streamers towed behind a seismic vessel comprising the steps of: a. using a computer specially adapted with a seismic data analysis package to analyze prior seismic data for a survey area; b. analyzing geophysical migration broadcast patterns to estimate a maximum sampling distance, wherein the maximum sampling distance is a function of velocities in the survey area; c. calculating a wavelet expansion as a function of flare spacing; d. creating synthetic gaps in the prior seismic data coverage by dropping a trace at different flare spacmg; e. testing capability of different interpolation algorithms to close the synthetic gaps created by the trace; and f. determining an optimal flare spacing based upon the capability of the different interpolation algorithms to close the synthetic gaps. Rejections I. Claims 1-10 stand rejected under 35 U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply with the written description requirement. II. Claim 1 stands rejected under 35 U.S.C. § 112 (pre-AIA), second paragraph, as indefinite. 2 Appeal 2017-008211 Application 13/153, 174 III. Claims 1-10 stand rejected under 35 U.S.C. § 103(a) (pre-AIA) as unpatentable over Monk et al. (US 2009/0279388 Al, pub. Nov. 12, 2009) (hereinafter "Monk") and Rekdal et al. (US 7,336,560 B2, iss. Feb. 26, 2008) (hereinafter "Rekdal"). ANALYSIS To facilitate our analysis, we address the rejection under§ 112, second paragraph (Rejection II) before addressing the rejections under § 112, first paragraph (Rejection I), and§ 103(a) (Rejection III). Re} ection II Step "b" of independent claim 1 recites, with added emphasis, "analyzing geophysical migration broadcast patterns to estimate a maximum sampling distance, wherein the maximum sampling distance is a function of velocities in the survey area." Br. 6, Claims App. In the Non-Final Office Action, mailed August 12, 2016 (hereinafter "Fifth Action"), the Examiner rejects claim 1 under§ 112, second paragraph as "indefinite for failing to particularly point out and distinctly claim the subject matter which ... the applicant regards as the invention." Fifth Action 4. The Examiner's rejection is based on a determination that the terms "migration broadcast patterns" and, more broadly, "broadcast patterns," are indefinite. Id. Additionally, the Examiner finds that the terms "migration broadcast patterns" and "broadcast patterns" are unknown by persons of ordinary skill in the art. See Ans. 2-3. We note that the terms "migration broadcast patterns" and "broadcast patterns" are not defined by the claims or the Specification. As for the 3 Appeal 2017-008211 Application 13/153, 174 Specification, it uses the terms on four occasions (Spec. i-fi-f 10, 33, Claim 1, Abstract). For example, the Specification describes "[i]n an embodiment, the method analyses [sic] geophysical migration broadcast patterns to estimate a maximum sampling distance before adversely compromising the seismic data (i.e., aliasing the data) using the specially-adapted computer system describe above." Id. i133 (emphasis added). Here, the Specification describes the use of migration broadcast patterns, but does not address the metes and bounds of the term "migration broadcast patterns" and, more broadly, "broadcast patterns." To the extent the Appellants respond to this ground of rejection (i.e., Rejection II), the Appellants fail to do so directly. See also Ans. 3. In the Appeal Brief, the Appellants only respond to Rejections I and III. Br. 3-5. However, when addressing Rejections I and III, the Appellants comment on the meaning of the terms "migration broadcast patterns" and "broadcast patterns." See id. We will discuss the Appellants' comments concerning the meaning of the terms "migration broadcast patterns" and "broadcast patterns" as they concern the rejection of claim 1 under§ 112, second paragraph, as indefinite (i.e., Rejection II). In addressing Rejection I, the Appellants reference a declaration in the record, i.e., Declaration under 37 C.F.R. § 1.132 of Mr. Peter M. Eick, filed August 24, 2015. Br. 3. The Eick Declaration was filed with a response to a Non-Final Office Action, mailed March 26, 2015, (hereinafter "Third Action"), which was a response to a rejection of claims 1-10 under 35 U.S.C. § 103(a) as unpatentable over Monk and Rekdal. Third Action 2-5. Notably, the Examiner rejected claim 1 under§ 112, second paragraph, 4 Appeal 2017-008211 Application 13/153, 174 because the terms "migration broadcast patterns" and "broadcast patterns" are indefinite for the first time in the Fifth Action. 2 The Appellants assert that paragraph 10 of the Eick Declaration clearly defines "broadcast pattern" as "the result (output) of a spike response (input) into a given seismic data processing algorithm." Br. 3. Paragraph 10, describes: One method to test how an algorithm or technique works on seismic data is to input a spike response or wavelet into the algorithm and then let the program process it. The result will be a "broadcast pattern" that shows where the input spike ended up after the processing algorithm. In our case, we looked at the impact of migration patterns and algorithms using a broadcast pattern for two adjacent spikes to determine at what point they interfere and can no longer be distinguished. [LeBras et al.] US Patent 5392255[, issued Feb. 21, 1995 (hereinafter "LeBras")] shows impulse response or broadcast patterns to a downward migration. Initially, we note that paragraph 10 of the Eick Declaration bases the definition of the term "broadcast pattern" on a result of"[ o ]ne method to test how an algorithm or technique works on seismic data is to input a spike response or wavelet into the algorithm and then let the program process it." Erick Deel. i-f 10 (emphasis added). The foregoing disclosure suggests that other methods may also result in a broadcast pattern. Additionally, we note that the Appellants' proposed definition is not supported by a reference, e.g., a dictionary, an encyclopedia, or other technical reference. See Ans. 2-3. To the extent the Eick Declaration references the Le Bras patent, the 2 The Examiner in the Non-Final Office Action, mailed May 14, 2014 (hereinafter "First Office Action" or "First Act.") determined that the term 'broadcast patterns" is indefinite (First Act. 3), but did not reject claim 1 under 35 U.S.C. § 112 (pre-AIA), second paragraph, as indefinite. 5 Appeal 2017-008211 Application 13/153, 174 Appellants fail to adequately address how LeBras supports the proposed definition of the term "broadcast pattern." Further, the LeBras patent does not discuss a "pattern," much less a "broadcast pattern." In light of the foregoing, we determine that the scope of the term "broadcast pattern" is unclear. In other words, even if we were to agree with the Appellants that the proposed definition of "broadcast pattern" is within the broadest reasonable interpretation of the term, we are unable to identify the metes and bounds of the term. For the purposes of this appeal only, even if we were to accept the Appellants' definition of the term "broadcast pattern," the Appellants fail to define the claim term "migration broadcast pattern." In other words, the Appellants do not address how the term "broadcast pattern" is different from the term "migration broadcast pattern." At best, the Appellants allege "[ c ]laim 1 recites analyzing geophysical migration broadcast patterns (known by person of ordinary skill in the related arts)." Br. 3 (emphasis added). However, this allegation is conclusory, i.e., does not offer a definition or explanation of the term "migration broadcast pattern." Additionally, in addressing Rejection III, the Appellants assert that "Monk is deficient because it does not teach or suggest utilizing migration broadcast patterns." Id. at 4. The Appellants attempt to distinguish migration broadcast patterns from other types of broadcast patterns. Thereafter, the Appellants allege: Monk provides a first-order approximation but fails to teach or suggest the claimed invention that utilizes [a] migration broadcast pattern approach using real-world seismic data processors. This is an important non-obvious distinction since the present invention should generate data that is much more accurate. 6 Appeal 2017-008211 Application 13/153, 174 Id. at 5; see also id. at 3--4 ("[Ab ]roadcast pattern is the response of an input spike (wavelet) to a seismic data processor (see Declaration submitted August 24, 2015)."). The foregoing allegation does not offer a definition or explanation of the term "migration broadcast patterns." Rather, the allegation suggests that Monk lacks "migration broadcast patterns" because of the equipment used to perform the analysis, i.e., "real-world seismic data processors," and the accuracy of the data that comes from those processors. We fail to understand how the type of processor used to analyze a migration broadcast pattern helps to distinguish a migration broadcast pattern from something that is not a migration broadcast pattern. Thus, for the foregoing reasons we agree with the Examiner that the terms "migration broadcast pattern" and "broadcast pattern" are indefinite because the scope of the terms, and thus the claims, are unclear. Accordingly, we sustain the Examiner's rejection of independent claim 1 under 35 U.S.C. § 112 (pre-AIA), second paragraph, as indefinite. Rejection I The Examiner rejects independent claim 1 under 35 U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply with the written description requirement. Fifth Act. 3. The Examiner determines that the terms "migration broadcast pattern" and "broadcast pattern" are not common terms in the art and, as such, independent claim 1 and its dependent claims (claims 2-10), "contain[] subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the ... inventor( s ), at the time the application was filed, had possession of the claimed invention." Id. 7 Appeal 2017-008211 Application 13/153, 174 As discussed above, we have sustained the Examiner's rejection of independent claim 1 as indefinite because the scope of the terms "migration broadcast pattern" and "broadcast pattern" is unclear. In this case, we do not reach the issue of whether independent claim 1, and dependent claims 2-10, fail to comply with the written description requirement. See In re Walter, 698 F. App'x 1022, 1027 (Fed. Cir. 2017) (non-precedential). Rejection III In view of our determination that independent claim 1 is indefinite, it follows that the prior art rejection of claim 1 under 35 U.S.C. § 103(a) must fall because it is necessarily based on a speculative assumption as to the meaning of the claim. See In re Steele, 305 F.2d 859, 862---63 (CCPA 1962); In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970) ("Ifno reasonably definite meaning can be ascribed to certain terms in the claim, the subject matter does not become obvious-the claim becomes indefinite."). Additionally, claims 2-10 depend from claim 1 and the prior art rejection of these claims fall for the same reason as claim 1. It should be understood, however, that our decision in this regard is proforma and based solely on the indefiniteness of the claimed subject matter, and does not reflect on the adequacy of the prior art evidence applied in support of the rejection. DECISION We AFFIRM the Examiner's decision rejecting claim 1 under 35 U.S.C. § 112 (pre-AIA), second paragraph, as indefinite (Rejection II). We REVERSE the Examiner's decision rejecting: claims 1-10 under 35 U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply with the 8 Appeal 2017-008211 Application 13/153, 174 written description requirement (Rejection I); and claims 1-10 under 35 U.S.C. § 103(a) (pre-AIA) as unpatentable over Monk and Rekdal (Rejection III). 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). AFFIRMED-IN-PART 9 Copy with citationCopy as parenthetical citation