Ex Parte Eick et al

Patent Trial and Appeal Board

May 1, 2018

13153174 (P.T.A.B. May. 1, 2018)

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.
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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
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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,
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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.
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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.
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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.
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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
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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
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