Ex Parte GARCERAN et al

Patent Trial and Appeal Board

Aug 24, 2018

14154278 (P.T.A.B. Aug. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/154,278 01/14/2014 Katia GARCERAN
11171 7590 08/28/2018
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404
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.
0336-201-2/100349 3926
EXAMINER
ISLAM, MOHAMMAD K
ART UNIT PAPER NUMBER
2864
NOTIFICATION DATE DELIVERY MODE
08/28/2018 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KATIA GARCERAN,
DAVID LE MEUR, and
ANDRE LEVEQUE
Appeal2018-000653
Application 14/154,278 1
Technology Center 2800
Before KAREN M. HASTINGS, JAMES C. HOUSEL, and
JEFFREY R. SNAY, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL
A. STATEMENT OF THE CASE
Appellant filed an appeal under 35 U.S.C. § 134(a) from the
Examiner's final decision rejecting claims 1---6, 8-15, and 17-19 under
35 U.S.C. § 101 as being directed to non-statutory subject matter.
We have jurisdiction under 35 U.S.C. § 6(b). 2
1 Appellant is the Applicant, CGG SERVICES SA, which, according to the
Appeal Brief, is the real party in interest. Appeal Brief (Appeal Br.) 2, filed
June 22, 2017.
2 Our Decision additionally refers to the Specification (Spec.) filed January
14, 2014, the Final Office Action (Final Act.) notice emailed December 27,
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Application 14/154,278
We AFFIRM.
The subject matter on appeal relates to methods for seismic data
processing, methods for constraining a surface consistent equation
associated with a correction of wavelengths having a surface consistent
seismic attribute, and systems for processing seismic data by constraining a
surface consistent equation associated with a correction of wavelengths
having a surface consistent seismic attribute (see, e.g., claims 1, 2, and 11).
The Inventors disclose that surface consistent corrections are commonly
used in seismic time processing to correct part of the distortions associated
with near-surface irregularities for on-shore seismic recorded data. Spec. ,r
3. According to the Inventors, "it is difficult to solve for the long
wavelength components of the solutions to the surface consistent equations,
especially when the near-surface variations occur over large areas." Id. The
Inventors state that such drawbacks with seismic data processing can be
overcome by their invention. Id. ,r,r 7-9.
Independent claim 1 is illustrative and is reproduced below from the
Claims Appendix of the Appeal Brief.
1. A method for seismic data processing comprising:
receiving pre-stack seismic traces associated with a
surveyed subsurface;
generating a map or scatter of a surface consistent
seismic attribute using a first inversion and said pre-stack
seismic traces as input for the first inversion;
constraining a surface consistent second inversion
associated with a correction of wavelengths having the surface
consistent seismic attribute and using the surface consistent
second inversion to generate a stack of corrected trace data,
2016, the Examiner's Answer (Ans.) notice emailed August 29, 2017, and
the Reply Brief (Reply Br.) dated October 24, 2017.
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which surface consistent second inversion is used for 2D, 3D,
4D surveys or for a merge of different surveys; and
generating a seismic image of the surveyed subsurface
based on said stack of corrected trace data.
B. DISCUSSION
The first step in analyzing whether a claim is directed to patent-
eligible subject matter is determining whether the claim is directed to one of
the patent-ineligible concepts: laws of nature, natural phenomena, and
abstract ideas. Alice Corp. Pty. Ltd. v. CLS Bankint'l, 134 S. Ct. 2347,
2355 (2014) (citing Mayo Collaborative Services v. Prometheus Labs., Inc.,
132 S. Ct. 1289 (2012)). If a claim is directed to a patent-ineligible concept,
the second step in the analysis is to determine whether additional elements
of the claim, "both individually and 'as an ordered combination,"'
"'transform the nature of the claim' into a patent-eligible application."
Alice, 134 S. Ct. at 2355 (quoting Mayo, 132 S. Ct. at 1297, 1298). Thus, a
claim that recites an abstract idea must include "'additional features"' to
ensure "'that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea]."' Id. at 2357 (quoting Mayo, at 1297).
Here, the Examiner finds claim 1 is directed to the abstract idea of
using mathematical equations and compares the claims to those of Electric
Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016), which
were directed to the collection, analysis, and display of information in a
particular field. Final Act. 1 O; Ans. 3. The Examiner finds the additional
recitations of claim 1 amount to mere data gathering that is necessary to
carry out the abstract idea. Final Act. 10-11. The Examiner makes similar
findings for claims 2---6, 8-15, and 17-19, with claim 11 reciting a system
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including instructions to implement the abstract idea on a computer and/or
generic computer structures. Id. at 11-13.
Appellant asserts claim 1 is not directed to an abstract idea because
the setup for the constraint depends upon the underlying structure of a
surveyed substructure and the invention preserves structural information
carried by longer wavelengths. Appeal Br. 5---6. Appellant contends claim 1
is substantially different from the claims in Electric Power Group. Appeal
Br. 8-9; Reply Br. 1-2. In light of this, Appellant asserts the claims are
similar to the patentable claims of In re Abele, 684 F.2d 902 (CCPA 1982),
which regarded an improvement to the CAT scan process, because
Appellant's claims "provide an improvement of seismic exploration
technique." Id. at 2-3.
Appellant's arguments are unpersuasive. Claim 1 is directed to a
method for seismic data processing. Specifically, claim 1 recites, among
other things, receiving pre-stack seismic traces associated with a surveyed
subsurface, generating a map or scatter of a surface consistent seismic
attribute via a first inversion using the seismic traces as input, constraining a
surface consistent second inversion and using the second inversion to
generate a stack of corrected trace data, and generating a seismic image of
the surveyed subsurface based on the stack of corrected trace data. As stated
by the Examiner, Appellant's Specification describes mathematical
equations for accomplishing this. Ans. 2-3; Spec. ,r,r 35, 39-46.
We further agree with the Examiner that claim 1 is similar to the
claims of Electric Power Group. Ans. 3. The claims of Electric Power
Group were directed to systems and methods for performing real-time
performance monitoring of an electric power grid by collecting data from
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multiple sources, analyzing the data, and displaying the results. Electric
Power Group, 830 F.3d at 1351-1352. The Federal Circuit noted that
collecting information has been treated as within the realm of abstract ideas,
"analyzing information by steps people go through in their minds, or by
mathematical algorithms, without more, as essentially mental processes
within the abstract-idea category," and "merely presenting the results of
abstract processes of collecting and analyzing information, without more" is
abstract and thus the claims focused on the combination of these abstract
ideas. Id. at 1353-1354. Recently, the Federal Circuit summarized such a
situation in this way:
We have explained that claims focused on "collecting
information, analyzing it, and displaying certain results of the
collection and analysis" are directed to an abstract idea. Electric
Power, 830 F.3d at 1353. "Information as such is an intangible,"
hence abstract, and "collecting information, including when
limited to particular content (which does not change its character
as information), [i]s within the realm of abstract ideas." Id.
( citing cases). So, too, is "analyzing information . .. by
mathematical algorithms, without more." Id. at 13 54 ( citing
cases, including Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522,
57 L.Ed.2d 451 (1978), and Gottschalk v. Benson, 409 U.S. 63,
93 S.Ct. 253, 34 L.Ed.2d 273 (1972)). And "merely presenting
the results of abstract processes of collecting and analyzing
information, without more ( such as identifying a particular tool
for presentation), is abstract as an ancillary part of such
collection and analysis." Id. (citing cases). The claims here are
directed [to] abstract ideas under those principles.
SAP America, Inc. v. Investpic, LLC, 890 F.3d 1016, 1021 (Fed. Cir. 2018).
Here, the method of claim 1 collects information (i.e., receives pre-
stack seismic traces associated with a surveyed subsurface), analyzes the
information (i.e., uses a first inversion to generate a map or scatter of a
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subsurface consistent seismic attribute and a second inversion to generate a
stack of corrected trace data), and presents the results (i.e., generates a
seismic image based on the stack of corrected trace data). As a result,
Electric Power Group demonstrates that claim 1 is directed to abstract ideas
(i.e., the collection of information, the analysis of information, and
presentation of the results) under the first step of analyzing whether a claim
is directed to patent-eligible subject matter. Appellant's argument that claim
1 and the claims of Electric Power Group do not correspond because the
inversions of claim 1 "would not be characterized as a mere 'analysis' of the
type in EPG" (Appeal Br. 8-9) is conclusory in nature and insufficient to
identify a reversible error. The arguments that "[t]he current claims do not
display the results of analyzing the data as in EPG" because two inversions
are performed and an output of the processing is a seismic image of a
surveyed subsurface, not seismic data (Reply Br. 1-2), are also insufficient
to distinguish claim 1 from those of Electric Power Group. Although claim
1 displays different results and a different type of information and using a
different type of analysis (i.e., inversions), the recitations of claim 1 are
directed to information collection, information analysis (i.e., inversions that
produce a map or scatter of a surface consistent seismic attribute and a stack
of corrected trace data), and presenting the results (i.e., a seismic image
based on the stack of corrected trace data), as discussed above.
With regard to the second step in the analysis set forth by Alice,
Appellant asserts the steps recited in claim 1 amount to significantly more
than the abstract idea because the Examiner fails to consider the claimed
generation of a seismic image and because claim 1 is similar to the claims of
Research Corporation Technologies Inc. v. Microsoft Corp., 627 F.3d 859
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(Fed. Cir. 2010). Appeal Br. 9-10. Specifically, Appellant contends their
Specification identifies a problem with conventional seismic data processing
and then outlines and explains solutions, with the claimed method yielding
an improved image of a surveyed subsurface and thus a more accurate
estimate of oil and gas therein. Id. at 10. In view of this, Appellant argues
the situation is similar to that of Diamond v. Diehr, 450 U.S. 175 (1981)
because a formulaic aspect is not the focus of the claimed method but the
claimed method as a whole yields an improvement. Id. at 10-11.
These arguments are also unpersuasive. The additional elements of
claim 1, both individually and as an ordered combination, do not transform
the nature of claim 1 into patent eligible subject matter. As stated by the
Examiner at page 3 of the Examiner's Answer, claim 1 does not go beyond
requiring the collection, analysis, and display of information in a particular
field, similar to the claims of Electric Power Group, and recites functions in
general terms.
The Examiner further finds that claim 1 merely uses a computer as a
tool to perform an abstract idea without including additional element(s)
amounting to significantly more. Ans. 4. Implementing an idea on a general
purpose computer does not transform it into a patentable apparatus; the idea
remains a pre-empted mental process. See Alice at 2354 ("We have
described the concern that drives this exclusionary principle as one of pre-
emption."), citingBilskiv. Kappas, 130 S. Ct. 3218, 3231 (2010)
("upholding the patent 'would pre-empt use of this approach in all fields,
and would effectively grant a monopoly over an abstract idea"').
We agree that claim 1 involves the sort of matter the Supreme Court
cautioned against in Alice by stating "transformation into a patent-eligible
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application requires 'more than simply stat[ing] the [abstract idea] while
adding the words 'apply it."' Id. at 2357 (quoting Mayo at 1294). This is
evidenced by the lack of rules with specific characteristics. In McRO, Inc. v.
Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016), the
Federal Circuit disagreed with a district court's determination that claims
were "' drawn to the [abstract] idea of automated rules-based use of morph
targets and delta sets for lip-synchronized three-dimensional animation."'
McRO, 837 F.3d at 1313. Instead, the Federal Circuit determined that "the
claims are limited to rules with specific characteristics." Id. at 1313. More
specifically, the Federal Circuit stated:
[a]s the district court recognized during claim construction, "the
claims themselves set out meaningful requirements for the first
set of rules: they 'define[ ] a morph weight set stream as a
function of phoneme sequence and times associated with said
phoneme sequence."'
Id. The Federal Circuit determined "[t]he specific, claimed features of these
rules allow for the improvement realized by the invention." Id.
Claim 1 recites, among other things, receiving pre-stack seismic traces
associated with a surveyed subsurface, generating a map or scatter of a
surface consistent seismic attribute via a first inversion using the seismic
traces as input, constraining a surface consistent second inversion and using
the second inversion to generate a stack of corrected trace data, and
generating a seismic image of the surveyed subsurface based on the stack of
corrected trace data. These recitations are made with a level of generality
that does not limit the claims to rules with specific characteristics, as in
McRO. As a result, the recitations of claim 1, when considered individually
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and as an ordered combination, do not amount to more than the abstract
ideas and do not transform claim 1 into patent eligible subject matter.
In view of the above, Appellant's contention that claim 1 is similar to
claims in Thales Visionix Inc. v. US., 850 F.3d 1343 (Fed. Cir. 2017)
(Appeal Br. 8) is unpersuasive. The claims of Thales were directed to an
unconventional physical arrangement of inertial sensors and calculations
based on a different reference frame to reduce errors. Thales, 850 F.3d at
1348-1349. Appellant does not explain that although their invention regards
conventional or generic steps or components (e.g., when considered
individually), they are "combined in an unconventional manner" that
provides an improvement and thus patent-eligible subject matter under step
two of Alice. See Amdocs (Israel) Limited v. Openet Telecom, Inc., 841 F.3d
1288, 1300 (Fed. Cir. 2016) (citing DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245, 1256-59 (Fed. Cir. 2014) and BASCOM Glob. Internet
Servs. Inc. v. AT & T Mobility LLC, 827 F.3d 1341, 1349-52 (Fed. Cir.
2016)). Appellant's arguments that claim 1 substantially differs from the
claims of TL! Communications, LLC v. AV Automotive (Appeal Br. 7-8) are
also unpersuasive in view of the above analysis regarding Electric Power
Group.
Appellant further contends that because no prior art has been found to
anticipate or render obvious the method of claim 1, one cannot say that the
claimed processing is well understood, routine, and conventional. Appeal
Br. 6. This argument is also unpersuasive because case law ( e.g., Electric
Power Group) demonstrates claim 1 is directed to an abstract idea, as
discussed above. Moreover, we note that the mere fact an abstract idea is
novel or non-obvious does not render the subject matter eligible under § 101.
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In response to an argument a claim contained an inventive concept because
it was not shown to be anticipated under § 102 or obvious under § 103, the
Federal Circuit has stated:
[t]hat position misstates the law. It is true that "the§ 101 patent-
eligibility inquiry and, say, the § 102 novelty inquiry might
sometimes overlap." Mayo, 132 S. Ct. at 1304. But, a claim for
a new abstract idea is still an abstract idea. The search for a § 101
inventive concept is thus distinct from demonstrating § 102
novelty.
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
2016).
In view of the above, Appellant's arguments do not identify a
reversible error in the Examiner's § 101 rejection of claim 1.
Appellant argues independent claims 2 and 11 are also not directed to
an abstract idea and amount to significantly more than an abstract idea by
citing the arguments discussed above for claim 1 and comparing and
contrasting claims 2 and 11 with the claims of various cases. Appeal Br.
11-14.
Claim 2 is directed to a method that is similar to that of claim 1 by
reciting, among other things, the receipt of pre-stack seismic traces,
generating a map or scatter based on a priori knowledge of an attribute from
seismic trace data and anomalies of the attribute in the seismic trace data,
computing a surface consistent equation and generating a stack of corrected
trace data, and generating a seismic image. Like claim 1, such recitations
are directed to the abstract ideas of collection information, analyzing the
information, and providing the results without including significantly more
to transform the subject matter into patent eligible subject matter.
Appellant's arguments are insufficient to explain why the Examiner
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reversibly erred in rejecting claim 2, such as, for example, by explaining
how the recitations of claim 2 are directed to an improvement for a particular
technology instead of merely implementing the abstract ideas via a generic
computer or by explaining how claim 2 includes rules with specific
characteristics that allow the improvements Appellant asserts for their
invention.
Claim 11 is directed to a system for processing seismic data by
constraining a surface consistent equation associated with a correction of
wavelengths having a surface consistent seismic attribute. Claim 11 recites,
among other things, a memory device configured to store pre-stack seismic
data and one or more processors. Paragraphs 64---66 of the Specification,
however, indicate that these components are generic components and not
themselves improvements or an unconventional physical arrangement.
Moreover, the system of claim 11 is configured to perform functions similar
to the process of claim 2. As discussed above, Appellant's arguments do not
identify a reversible error in the Examiner's§ 101 rejections of claim 2.
Appellant does not argue dependent claims 3---6, 8-10. 12-15, and 17-
19 separately from claims 1, 2, and 11. Appeal Br. 5-14.
For these reasons and those set forth in the Examiner's Answer, we
sustain the Examiner's§ 101 rejection of claims 1-6, 8-15, and 17-19.
C. DECISION
The decision of the Examiner is affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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