Ex Parte Fang et al

Patent Trial and Appeal Board

Sep 26, 2016

14232749 (P.T.A.B. Sep. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/232,749 01114/2014
15604 7590 09/28/2016
Baker Botts LLP,
910 Louisiana Street, One Shell Plaza
Houston, TX 77002
FIRST NAMED INVENTOR
Xinding Fang
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.
2011-IP-047564 US 1961
EXAMINER
HULKA, JAMES R
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
09/28/2016 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):
susan.stewart@bakerbotts.com
debie.hernandez@bakerbotts.com
tami.day@bakerbotts.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte XINDING FANG, CHUNG CHANG, and
ARTHUR CHUEN HON CHENG
Appeal2016-007663
Application 14/232,749
Technology Center 3600
Before JAMES P. CAL VE, GEORGE R. HOSKINS, and
ARTHUR M. PESLAK, Administrative Patent Judges.
HOSKINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Xinding Fang et al. ("Appellants") 1 appeal under 35 U.S.C. § 134
from the Examiner's decision rejecting claims 1-16 under 35 U.S.C.
§ 103(a) as unpatentable over Tang (US 2004/0001389 Al, pub. Jan. 1,
2004), Sinha '639 (US 2010/0020639 Al, pub. Jan. 28, 2010), and
Sinha '437 (US 2006/0285437 Al, pub. Dec. 21, 2006). The Board has
jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 The Appeal Brief identifies Halliburton Energy Services, Inc. as the real
party in interest. Appeal Br. 2.
Appeal2016-007663
Application 14/232,749
CLAIMED SUBJECT MATTER
Claims 1, 7, and 13 are independent. Claim 1 illustrates the subject
matter on appeal, and it recites:
1. A method for determining shear wave anisotropy in a
vertically transversely isotropic formation, comprising:
generating a broad band Stoneley wave and a broad band
dipole flexural wave at a logging tool located within a wellbore;
receiving at the logging tool first data corresponding to the
broad band Stoneley wave and second data corresponding to the
broad band dipole flexural wave;
determining a dispersion curve for each of the Stoneley
wave and the dipole flexural wave; and
determining a vertical shear wave constant, C66, by at least
applying an inversion algorithm to the first data and the second
data, wherein the inversion algorithm comprises comparing the
determined dispersion curve for each of the Stoneley wave and
the dipole flexural wave with a set of pre-calculated dispersion
curves.
Appeal Br. 10 (Claims App.).
ANALYSIS
Appellants argue for the patentability of all claims 1-16 together as
one group. See Appeal Br. 3-8. We select claim 1 to decide the appeal,
with claims 2-16 standing or falling with claim 1. See 37 C.F.R.
§ 41.37(a)(l)(iv).
Appellants present one issue for resolution on appeal: does the
Examiner err in finding Sinha' 437 discloses, as recited in claim 1,
"applying an inversion algorithm ... compris[ing] comparing the
determined dispersion curve for each of the Stoneley wave and the dipole
flexural wave with a set of pre-calculated dispersion curves" (emphasis
2
Appeal2016-007663
Application 14/232,749
added)? Appeal Br. 3-8. Appellants do not challenge the Examiner's
findings concerning the disclosures of Tang and Sinha '639, or the
Examiner's proffered reasons for why it would have been obvious to modify
Tang in light of Sinha '639 and Sinha '437. Id.
The Final Office Action cites Sinha '437 at Figure 7a,
paragraphs 189-192, 212, 217, 227-230, 239, and claim 6, in support of
finding Sinha '437 discloses applying an inversion algorithm to Stoneley
wave data and dipole flexural wave data, including comparing a determined
dispersion curve for the dipole flexural wave with a set of pre-calculated
dispersion curves. Final Act. 3, 4--5. In particular, the Examiner finds
paragraphs 190-192 "discuss the comparison of flexural dipole dispersions"
and "[t]he same is true for" paragraphs 227-230, which "discuss the flexural
dipole dispersions, including incorporating [Sinha 19972] by reference." Id.
at 5.
Appellants argue "Sinha '437 discusses calculations made with
respect to 'Stoneley waves' and 'Stoneley dispersions,' but does not describe
those calculations with respect to dipole flexural waves or dipole flexural
wave dispersions." Appeal Br. 5. Appellants contend the Sinha '437
disclosures cited by the Examiner "fail to disclose any comparison between
dipole flexural wave dispersions and pre-calculated dispersion curves." Id.
at 5-8 (quoting Sinha '437 i-fi-f 189-192, 212, 227-229, 239, and claim 6).
According to Appellants, the only Sinha '437 disclosure cited by the
Examiner referring to "flexural dispersions" is paragraphs 192 and 229,
2 Sinha, B. K., Sensitivity and Inversion of Borehole Flexural Dispersions
for Formation Parameters, Geophysical J. Int'l, vol. 128, no. 1, pp. 84--96
(Jan. 1997).
3
Appeal2016-007663
Application 14/232,749
which merely refer to the title of Sinha 1997. Id. at 7. Appellants contend
that Sinha' 437 paragraphs 192 and 229 "specifically tie[] the kernel Gi to 'a
fractional change in the Stoneley velocity at a given axial wavenumber ... "'
and "the Examiner has provided no explanation regarding how [Sinha 1997]
discloses the required limitations." Id. at 7-8. 3
In answer, the Examiner finds "the motivation behind" Sinha '437 is
stated in Sinha '437 paragraph 30, which in whole provides as follows:
Accordingly, some aspects of the present invention provide
techniques for radial profiling of formation mobility based on
inverting differences between a Stoneley radial profile of
horizontal shear slowness and a dipole radial profile of vertical
shear slowness in a reservoir interval. The horizontal shear
slowness in a vertical well provides an estimate of the effective
horizontal shear modulus C66, whereas dipole shear slownesses
yield estimates of the effective vertical shear moduli C44 and css.
A high porosity sand reservoir in the absence of any formation
mobility and stresses would exhibit approximately the same
magnitude of the three shear moduli. In the absence of formation
stresses, the horizontal shear slo\'l/ness increases \'l1ith increasing
formation mobility. By contrast, the vertical shear slowness is
largely unaffected by the formation mobility.
3 Appellants do not address a potential anomaly between the respective
disclosures of their Specification and Sinha '43 7. Appellants' Specification
identifies a horizontal shear wave modulus C44 and a vertical shear wave
modulus C66. Spec. 1:13-21, 5:4--9, 7:10-11. Sinha '437, by contrast,
identifies a horizontal shear modulus C66 and a vertical shear modulus C44.
See, e.g., Sinha '437 i-f 30. Appellants do not apprise us of any Examiner
error in this regard when applying claim 1 to the Sinha '437 disclosure. See
Appeal Br. 3-8.
4
Appeal2016-007663
Application 14/232,749
Ans. 54 (adding underlined emphasis). Thus, the Examiner explains,
Sinha '437 was filed to focus on Formation Mobility. Id. (additionally citing
Sinha '437, Title and i-f 31 ). The Examiner cites the final two sentences of
paragraph 30 as "explain[ing] that vertical she[a]r slowness (which is related
to flexural dipole waves) is largely unaffected with increasing formation
mobility," so "in high formation mobility situations, Sinha [' 437] directs
most of the calculations towards the Stoneley radial profiles and horizontal
shear slowness, since that measure increases as formation mobility
increases." Id. at 5---6. The Examiner finds Sinha' 437 nonetheless
"elaborates on how the dipole vertical shear slowness values, Stoneley
horizontal shear slowness values, and formation mobility are related and
calculated as a function of radial position." Id. at 6 (emphasis added) (citing
Sinha' 437 i-f 31 ). The Examiner determines, because Sinha' 437 "focuses
more on Stoneley horizontal shear slowness than dipole vertical shear
slowness," Sinha '437 incorporates Sinha 1997 by reference to teach "how
to determine a kernel which relates fractional changes in the Stoneley
velocity at a given wavenumber, which corresponds and is related to shear
modulus C66" and "is known to those of skill in the art having the benefit
of this disclosure." Id. (citing Sinha '437 i-f 192).
The Examiner then finds Sinha 1997 "describes the inversion
procedure based on a given flexural wave velocity dispersion." Id. at 6
(citing Sinha 1997, p. 86, col. 1 ). The Examiner also finds Sinha 1997
"show[s] computational results for five sensitivity functions for a borehole,
4 Every page in the Answer following the cover page is numbered "Page 7"
in the upper right comer. See Ans. passim. Our page number citations treat
the cover page as page 1, such that the Answer consists of pages 1-8.
5
Appeal2016-007663
Application 14/232,749
and estimates the parameters for a 'fast' formation- specifically 'results of
inversion of the flexural dispersion for the formation shear speed ... '." Id.
at 6-7 (citing Sinha 1997, p. 86, col. 2 top. 87). Further, according to the
Examiner, Sinha 1997 "displays flexural dispersion curves for slow
formations" and "does a similar analysis using an altered annulus around the
borehole, with flexural dispersion curves in Figure 8." Id. at 7 (citing
Sinha 1997, pp. 88-89).
Appellants responded to the Answer by filing a Reply Brief. 5 In the
Reply Brief, Appellants argue Sinha '437 "actually teaches away from"
applying an inversion algorithm to Stoneley wave data and dipole wave data
to determine shear modulus C66. Reply Br. 2. Appellants assert Sinha' 437
paragraph 30 discusses using only Stoneley wave data in estimating shear
modulus C66, and discusses using dipole wave data only in estimating shear
moduli C44 and css. Id. Such disclosure, in Appellants' view, teaches away
from using both Stoneley wave data and dipole wave data to determine shear
modulus C66, as recited in claim 1. Id. at 2-3. The Reply Brief does not
address the discussion of Sinha 1997 set forth in the Answer, or dispute the
Examiner's assertion that the disclosure of Sinha 1997 would have been
known to those of ordinary skill in the art. Id.
We determine the Examiner's findings are sufficient to establish that
Sinha '437, via the incorporation by reference of Sinha 1997, discloses
determining shear modulus C66 by applying an inversion algorithm that
comprises comparing a determined dispersion curve for a dipole flexural
wave with a set of pre-calculated dispersion curves, as recited in claim 1, so
5 Thus, Appellants have waived any argument that the Answer sets forth an
undesignated new ground of rejection. See 37 C.F.R. § 41.40.
6
Appeal2016-007663
Application 14/232,749
as to shift the burden to Appellants to show otherwise. See Jn re King, 801
F.2d 1324, 1327 (Fed. Cir. 1986). Appellants have not come forth with any
persuasive evidence or technical reasoning to satisfy such burden.
For example, Appellants do not challenge the Examiner's
incorporation by reference determination, which we therefore accept. See
Advanced Display Systems, Inc. v. Kent State Univ., 212 F.3d 1272, 1282
(Fed. Cir. 2000) ("Incorporation by reference provides a method for
integrating material from various documents into a host document ... by
citing such material in a manner that makes clear that the material is
effectively part of the host document as if it were explicitly contained
therein."). As a result of the incorporation by reference, material not
explicitly contained in Sinha '437 but present in Sinha 1997 may still be
considered for purposes of determining what Sinha '437 discloses.
As to the substance of the combined disclosures of Sinha '437 and the
incorporated Sinha 1997, Appellants argue Sinha '437 paragraph 30 teaches
away from using dipole wave data, along with Stoneley dispersion data, in
estimating shear modulus C66. Reply Br. 2-3. This argument is not
persuasive, because Sinha '437 paragraph 30 does not "criticize, discredit, or
otherwise discourage" the use of dipole wave data in estimating shear
modulus C66. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Appellants' argument further does not address the Examiner's detailed
findings in the Answer concerning the combined disclosures of Sinha '437
and Sinha 1997 in relation to using dipole flexural wave data in estimating
shear modulus C66 in the manner recited in claim 1. Those findings are
supported by a preponderance of the evidence, and stand unrebutted in the
record presently before us.
7
Appeal2016-007663
Application 14/232,749
For the foregoing reasons, we sustain the rejection of claims 1-16 as
unpatentable over Tang, Sinha '639, and Sinha '437.
DECISION
The Examiner's decision to reject claims 1-16 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended, under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
8