11398503 (P.T.A.B. Jun. 18, 2013)

Ex Parte Glasbergen et al

Patent Trial and Appeal BoardJun 18, 2013

11398503 (P.T.A.B. Jun. 18, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte GERARD GLASBERGEN, DIEDERIK VAN BATENBURG, MARY VAN DOMELEN, DAVID O. JOHNSON, JOSE SIERRA, and JOHN WARREN ____________________ Appeal 2011-000968 Application 11/398,503 Technology Center 2800 ____________________ Before: DEBRA K. STEPHENS, JOHNNY A. KUMAR, and BARBARA A. PARVIS, Administrative Patent Judges. STEPHENS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-000968 Application 11/398,503 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a non-final rejection of claims 1-7. Claims 8-26 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Introduction The claims are directed to fluid distribution determination and optimization using real time temperature measurements (Abstract). STATEMENT OF THE CASE Exemplary Claim Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of determining fluid distribution along a wellbore, the method comprising the steps of: monitoring a temperature distribution along the wellbore in real time; and determining in real time the fluid distribution along the wellbore using the temperature distribution. REFERENCES Angle Williams US 6,026,911 US 6,997,256 Feb. 22, 2000 Feb. 14, 2006 Appeal 2011-000968 Application 11/398,503 3 REJECTIONS The Examiner made the following rejections: (1) Claim 1-3 stands rejected under 35 U.S.C. §103(a) as being unpatentable over Williams (Ans. 3). (2) Claim 4-7 stands rejected under 35 U.S.C. §103(a) as being unpatentable over Williams and Angle (Ans. 5).1 We have only considered those arguments that Appellants actually raised in the Briefs. Arguments Appellants could have made but chose not to make in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii)(2011). ISSUE 1 35 U.S.C. § 103(a): Claims 1-3 Appellants assert their invention is not obvious over Williams because Williams does not describe determining the fluid distribution along the wellbore using the temperature distribution in real time (App. Br. 16). According to Appellants, although Williams describes monitoring a cross- section distribution of fluids in a wellbore, this is not “fluid distribution” as defined in Appellants’ Specification (App. Br. 16). Specifically, Appellants contend Williams does not describe determining the extent to which fluid penetrates an earth formation versus depth along a wellbore or how fluid 1 The rejection of claims 1-7 under 35 U.S.C. §112, first paragraph, as failing to comply with the enablement requirement (Non-Final Rej. 2) was withdrawn by the Examiner (Ans. 2, §(6) Grounds of Rejection to be Reviewed on Appeal). Appeal 2011-000968 Application 11/398,503 4 penetration of an earth formation along a wellbore could be determined (App. Br. 16). Issue 1: Has the Examiner erred in finding Williams teaches or suggests “determining in real time the fluid distribution along the wellbore using the temperature distribution” as recited in claim 1? ANALYSIS We agree with Appellants regarding the definition of “fluid distribution.” Appellants have explicitly defined the term “fluid distribution” in their Specification. Specifically, the Specification sets forth “[f]luid distribution is the extent to which fluid penetrates a formation or zone versus depth along a wellbore” (Spec. 6, ll. 25-27). Nonetheless, we find Williams teaches or at least suggests the disputed limitation. The Examiner points to Williams’ Abstract and claim 1 as teaching the disputed limitation (Ans. 4, 9) and we agree. Williams discloses “comparing the temperature profiles to determine whether different fluids are present in each of the levels” (claim 1). Williams teaches or at least suggests measuring a temperature profile at various levels or locations (id.). Thus, Williams teaches measuring the temperature distribution to determine whether a fluid is present in that zone and this measuring occurs at various levels, i.e., depths. We find determining the fluid distribution, the extent to which fluid penetrates a formation or zone versus depth along a wellbore would not have been uniquely challenging or difficult for one of ordinary skill in the art at Appeal 2011-000968 Application 11/398,503 5 the time of the invention. It follows it would have been obvious to an ordinarily skilled artisan to determine in real time, the fluid distribution along the wellbore using the temperature distribution in light of Williams’ teachings. Accordingly, the Examiner did not err in finding Williams teaches or suggests “determining in real time the fluid distribution along the wellbore using the temperature distribution” as recited in claim 1 and concluding it would have been obvious to an ordinarily skilled artisan upon reading Williams. Claims 2 and 3, not separately argued, fall with claim 1. Therefore, the Examiner did not err in rejecting claims 1-3 under 35 U.S.C. § 103(a) for obviousness over Williams. ISSUE 2 35 U.S.C. § 103(a): Claims 4-7 Appellants assert their invention is not obvious over Williams and Angle because although Angle describes “a predictive device (e.g., a neural network)” neither Angle nor Williams describes: “inputting a temperature distribution to a predictive device, so that the predictive device predicts fluid distribution” (claim 4); inputting a fluid distribution to an optimization device (claim 6); or an “optimization device modifies inputs to the predictive device, so that a deviation of the fluid distribution from a desired fluid distribution is minimized” (claim 7) (App. Br. 19-20; Reply Br. 19-20). Appeal 2011-000968 Application 11/398,503 6 Issue 2: Has the Examiner erred in concluding the combination of Williams and Angle teaches or suggests the limitations recited in claims 4, 6, and 7? ANALYSIS We are not persuaded by Appellants’ arguments. Specifically, we are not persuaded by Appellants’ arguments that neural networks do not predict or optimize. We further note Appellants also indicate the predictive device may be a neural network (Spec. 19, ll. 8-10). Additionally, we are not persuaded it would have been uniquely challenging or beyond the skill of an ordinarily skilled artisan to perform the recited steps. Accordingly, we are not persuaded the Examiner erred in finding the combination of Williams and Angle teaches or suggests the limitations as recited in claim 4, 6, and 7, and claim 5, not separately argued. Therefore, the Examiner did not err in rejecting claims 4-7 under 35 U.S.C. § 103(a) for obviousness over Williams and Angle. DECISION The Examiner’s rejection of claims 1-3 under 35 U.S.C. § 103(a) as being unpatentable over Williams is affirmed. The Examiner’s rejection of claims 4-7 under 35 U.S.C. § 103(a) as being unpatentable over Williams and Angle 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)(1)(iv) (2011). Appeal 2011-000968 Application 11/398,503 7 AFFIRMED msc