Ex Parte GrionDownload PDFBoard of Patent Appeals and InterferencesOct 29, 200910858968 (B.P.A.I. Oct. 29, 2009) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte SERGIO GRION ____________ Appeal 2008-003972 Application 10/858,968 Technology Center 3600 ____________ Decided: October 29, 2009 ____________ Before JENNIFER D. BAHR, LINDA E. HORNER, and JOHN C. KERINS, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2008-003972 Application 10/858,968 2 STATEMENT OF THE CASE Sergio Grion (Appellant) seeks our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1-19, all of the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b) (2002). SUMMARY OF DECISION We AFFIRM. THE INVENTION Appellant’s claimed invention is to a method, a machine-readable storage media containing either instructions for performing the method or data structures and data, and a computer programmed to perform the method, in which the method involves determining a calibration filter using first and second marine seismic data sets, and determining a third data set based upon the first and second sets and the calibration filter. (Appeal Br., Claims Appendix, Claims 1, 7, 12 and 17). Independent claim 1 is reproduced below, and is representative of the overall claimed subject matter: 1. A method comprising: determining a calibration filter using a first pre- stack marine seismic data set acquired at a first depth and a second pre-stack marine seismic data set acquired at a second depth, wherein the second depth is greater than the first depth; and determining a third data set based upon the first pre-stack marine seismic data set, the second pre- stack marine seismic data set, and the calibration filter. Appeal 2008-003972 Application 10/858,968 3 THE REJECTIONS The Examiner relies upon the following as evidence of unpatentability: Starr US 6,151,275 Nov. 21, 2000 Monk, David J., (1990), Wavefield separation of twin streamer data, First Break, 8(3), 96-104. Singh, Satish C., et al., (1996), Broadband receiver response from dual-streamer data and applications in deep reflection seismology, Geophysics, 61(1), 232-243. Grion, S., et al., Over/Under Acquisition-Breaking the Resolution Limits, EAGE 63rd Conference & Technical Exhibition--Amsterdam, The Netherlands, 11-15 June 2001, 1-4. The Examiner has rejected: (i) claims 1 and 3-6 under 35 U.S.C. § 102(b) as being anticipated by Grion; (ii) claims 7, 9-12 and 14-19 under 35 U.S.C. § 103(a) as being unpatentable over Grion; (iii) claims 2, 8 and 13 under 35 U.S.C. § 103(a) as being unpatentable over Grion in view of Starr; (iv) claims 1-3 and 5 under 35 U.S.C. § 102(b) as being anticipated by Singh; (v) claims 7-10, 12-15, 17 and 18 under 35 U.S.C. § 103(a) as being unpatentable over Singh; Appeal 2008-003972 Application 10/858,968 4 (vi) claims 1, 3, 5 and 6 under 35 U.S.C. § 102(b) as being anticipated by Monk; (vii) claims 7, 9-12 and 14-19 under 35 U.S.C. § 103(a) as being unpatentable over Monk; and (viii) claims 2, 8 and 13 under 35 U.S.C. § 103(a) as being unpatentable over Monk in view of Starr. ISSUES The Examiner found, in connection with the anticipation rejections, that the prior art methods in each of the Grion, Singh and Monk references disclose steps of determining a calibration filter using first and second sets of marine seismic data, and determining a third data set based on the first and second data sets and the calibration filter. Appellant contends that none of the references identically discloses the determination of a calibration filter. In this regard, Appellant contends that the Examiner’s interpretation of the term “calibration filter” is unreasonably broad. Appellant further contends that, because no calibration filter is determined, there is no disclosure of a determination of a third data set based in part on the calibration filter. The issue to be decided relative to the anticipation rejections is whether Appellant has demonstrated that the Examiner erred in finding that the cited references disclose the determination of a calibration filter due to employing an unreasonably broad construction of the term. The Examiner concluded that the various aspects set forth in the claims that were not found to have been anticipated by any of the three references noted above would have been obvious to a person of ordinary Appeal 2008-003972 Application 10/858,968 5 skill in the art in view of the references themselves, or, for certain of the claims, obvious over Grion or Monk in view of Starr. Appellant again contends that none of Grion, Singh, Monk and Starr discloses the determination of a calibration filter, in that the Examiner’s interpretation of that term is unreasonably broad, and, because of this, the references do not disclose the determination of a third data set based on such a calibration filter. Appellant further contends that the Grion, Singh and Monk references teach away from a method employing these steps. The issue to be decided relative to the obviousness rejections is whether Appellant has demonstrated that the Examiner erred in his finding that the Grion, Singh and Monk references disclose the determination of a calibration filter in processing the marine seismic data, and the use of that filter in determining a third data set. FINDINGS OF FACT The following enumerated findings of fact (FF) are supported by at least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Office). FF 1. The expression P(Zo)FU = P(Zu)FO, is disclosed by Appellant as being applicable to a cross-ghosting technique when a flat sea boundary condition is imposed. (Spec., p. 11, l. 18-p. 12, l. 5; p. 13, ll. 16-22). FF 2. Appellant’s Specification does not disclose what information is necessary or desirable for the purpose of determining its calibration filter(s), noting only that “any desirable expression may be evaluated with any Appeal 2008-003972 Application 10/858,968 6 desirable technique used to determine the calibration filters. (Spec., p.14, ll. 7-9 and passim). FF 3. The expression disclosed by Appellant as including the calibration filter a(f) has, as its genesis, the same assumption of a flat sea boundary condition, with the calibration filter being later imposed. In this regard, Appellant’s Specification discloses, in the only specifically disclosed example, that the expression a(f)P(Zo)FU = P(Zu)FO, and one or more calibration filters, are determined by “initially assuming, . . . . [the condition] P(Zo)FU = P(Zu)FO.” (Spec., p. 13, ll. 16-21). That condition is derived by “imposing the flat sea boundary condition in the form of U(0) = -D(0), . . . , in the case of a perfectly calm surface 430.” (Spec, p. 11, l. 18-p. 12, l. 5). FF 4. Appellant notably does not specify that the determination of the calibration filter in the disclosed example is expressly for the purpose of providing a correction for a non-flat sea surface. Appellant’s Specification notes, more generally, in referring to a preceding passage, that, due to the presence of non-flat sea surface conditions and/or other specified irregularities, the relationship expressed by P(Zo)FU = P(Zu)FO is generally not precise for the acquired data. (Spec., p. 12, ll. 7-18; p. 14, ll. 1-2). PRINCIPLES OF LAW An appellant has the burden on appeal to the Board to demonstrate error in the Examiner’s position. See Ex parte Yamaguchi, 88 USPQ2d 1606, 1614 (BPAI 2008) (on appeal, applicant must show examiner erred); Ex parte Fu, 89 USPQ2d 1115, 1123 (BPAI 2008); Ex parte Catan, 83 USPQ2d 1569, 1577 (BPAI 2007); and Ex parte Smith, 83 USPQ2d 1509, 1519 (BPAI 2007). See also In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. Appeal 2008-003972 Application 10/858,968 7 2006) (“On appeal to the Board, an applicant can overcome a rejection [under § 103] by showing insufficient evidence of prima facie obviousness or by rebutting the prima facie case with evidence of secondary indicia of nonobviousness.”) (quoting In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998)). Anticipation under 35 U.S.C. § 102 requires that “each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference.” Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631 (Fed. Cir. 1987). Under principles of inherency, when a reference is silent about an asserted inherent characteristic, it must be clear that the missing descriptive matter is necessarily present in the thing described in the reference, and that it would be so recognized by persons of ordinary skill. Continental Can Co. v. Monsanto Co., 948 F.2d 1264, 1268 (Fed. Cir. 1991). Inherency may not be established by probabilities or possibilities. In re Oelrich, 666 F.2d 578, 581 (CCPA 1981). A claim is unpatentable under 35 U.S.C. § 103(a) if “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” The question of obviousness is resolved on the basis of underlying factual determinations including (1) the scope and content of the prior art, (2) any differences between the claimed subject matter and the prior art, (3) the level of skill in the art, and (4) where in evidence, so-called secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 407 (2007) (“While the sequence of these questions might be reordered Appeal 2008-003972 Application 10/858,968 8 in any particular case, the [Graham] factors continue to define the inquiry that controls.”). In interpreting claim language, we apply the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). A reference teaches away from the subject matter of a claim only if “a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Prior art does not teach away from claimed subject matter merely by disclosing a different solution to a similar problem unless the prior art also criticizes, discredits or otherwise discourages the solution claimed. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). ANALYSIS Claims 1 and 3-6--Anticipation by Grion Appellant argues claims 1 and 3-6 as a group. Claim 1 will be taken as the representative claim for analysis of this rejection. Appellant argues that the Grion reference does not disclose a process in which a calibration filter is determined. (Appeal Br. 7). Appellant’s position is that, because the process employed by Grion for determining an ideal data field is founded in part on the imposition of a flat sea boundary condition, in which U(0) = -D(0), representative of a surface reflectivity of Appeal 2008-003972 Application 10/858,968 9 -1, Grion fails to teach the determination of a calibration filter. Appellant further asserts that the Grion technique can not be used to obtain a calibration filter, “because the necessary information has been destroyed by adopting the flat sea approximation.” (Appeal Br. 7-8). These contentions are premised on Appellant’s comparison of the prior art method or technique to a particular embodiment disclosed in Appellant’s Specification, in which an expression, a(f)P(Zo)FU = P(Zu)FO, is employed in determining the calibration filter a(f). Without explicitly saying so, Appellant appears to be contending that, as a result of the Grion technique being based in part on an assumption of the flat sea boundary condition, Grion involves no more than the expression P(Zo)FU = P(Zu)FO, disclosed by Appellant as applicable to a cross-ghosting technique when the flat sea boundary condition is imposed (FF 1), without any calibration filter being involved. Not only does Appellant not explain how necessary information as is needed to determine a calibration filter is destroyed as a result of starting with an assumption of a flat sea boundary condition1, Appellant’s own expression including the calibration filter a(f) has, as its genesis, the same assumption of a flat sea boundary condition, with the calibration filter being later imposed. (FF 3). Appellant’s assignment of error is crystallized in the Reply Brief, which states that, “[t]he root of the Office’s error is an overly broad construction of the limitation ‘calibration filter.’” (Reply Br. 4). This 1 Appellant’s Specification is utterly silent with respect to what information is necessary or desirable for the purpose of determining its calibration filter(s). (FF 2). Appeal 2008-003972 Application 10/858,968 10 arrival at the essence of the dispute was prompted by the Examiner pointing out in the Answer that: [Appellant] argues that [sic, the] Grion, Singh, and Monk references do not teach determining a calibration filter or using a calibration filter. [Appellant’s] arguments are not commensurate in scope with the claim limitations. The term “calibration filter” in the claims is given its broadest reasonable interpretation. This interpretation is any type of filter or operation that adjusts the data being worked upon. (Answer 11). The Examiner continues by pointing out that Appellant’s attempts to differentiate the prior art Grion method from the method of claim 1 are all premised not on the particular language employed in the claim, but are instead based upon specific features disclosed in the Specification with respect to Appellant’s preferred embodiment, which features do not appear in the claims. (Answer 11-13). Appellant contends that “[n]ot every ‘adjustment’ to the data is considered a ‘calibration’ by those skilled in the art”, and asserts that the Examiner has not met his burden of adducing evidence in support of this position. (Reply Br. 4). Appellant additionally urges that: Since the invention is directed to problems arising from the use of flat sea approximations, it is unreasonable to construe the claim language--without supporting evidence--to “any adjustment” using flat sea approximations. It is therefore clear that the term “calibration” as used in the present application excludes a flat sea approximation . . . (Reply Br. 4-5). Appeal 2008-003972 Application 10/858,968 11 Appellant takes the further step of asserting that the Examiner’s position is refuted by what evidence there is of record, citing to a general disclosure in Appellant’s Specification describing an example of one conventional technique that assumes that the sea surface is a flat perfect reflector, and applies the flat sea boundary condition to separate the up- going and down-going wave fields. (Reply Br. 4). The evidence of record, however, appears to belie Appellant’s positions with respect to the proper interpretation of the claim term “calibration filter”, given its broadest reasonable interpretation. While Appellant’s Specification uses the example of calibrating data to account for non-flat sea surface conditions, Appellant also notes that the cross-ghosting expression P(Zo)FU = P(Zu)FO also, do[es] not account for temporal and spatial variations in the water velocity, reflectivity of the surface 430, streamer positioning errors, and other non-ideal conditions that are frequently encountered in real marine seismic surveys. To account, at least in part, for the effects of the aforementioned non-ideal conditions, one or more calibration filters are determined . . . (Spec., p. 12, ll. 8-12). In introducing the representation of the calibration filter(s) a(f) to the flat sea surface expression P(Zo)FU = P(Zu)FO at page 14 of the Specification, Appellant notably does not specify that the determination of this calibration filter is expressly for the purpose of providing a correction for a non-flat sea surface. Rather, Appellant notes that the relationship expressed is generally not precise for the acquired data. (FF 4). As such, the person of ordinary skill in the art, taking into account the above-quoted Appeal 2008-003972 Application 10/858,968 12 disclosure, would be informed that the calibration filter(s) could well be employed to correct for streamer positioning errors, or temporal and spatial variations in the water velocity, in addition to, or instead of, differences in reflectivity of the sea surface due to non-flat sea surface conditions. Further evidence that the claim is not to be read so narrowly as to exclude methods which employ flat sea approximations, or so narrowly that the calibration filter a(f) must necessarily include a correction for non-flat sea surfaces, or further so narrowly as to require an inference that the method is limited to determining a calibration factor a(f) in the expression a(f)P(Zo)FU = P(Zu)FO, is found squarely in the description of the only example or preferred embodiment provided by Appellant: . . . persons of ordinary skill in the art should appreciate that the present invention is not limited to applying the least-squares criterion to the expression a(f)P(Zo)FU = P(Zu)FO. In alternative embodiments, any desirable expression may be evaluated with any desirable technique used to determine the calibration filters. (Specification, p. 14, ll. 5-9.) (emphasis added). Contrary to Appellant’s position, the evidence of record provides more than ample support that the Examiner’s interpretation of the claim term “calibration factor” is reasonable. It is instead Appellant’s attempt to artificially restrict the breadth of the term that is not supported by the evidence of record. We are thus not persuaded that the Examiner’s interpretation of “calibration filter” is erroneous, and accordingly are not persuaded that the Grion reference fails to disclose a method in which a calibration filter is determined and is employed in determining a third set of data from first and second sets of marine seismic data. Appeal 2008-003972 Application 10/858,968 13 The rejection of claim 1 as anticipated by Grion will be sustained, as will the rejection of claims 3-6. Claims 7, 9-12 and 14-19--Obviousness--Grion Appellant does not separately argue the patentability of any of these claims. Claim 7 will be taken as representative. Appellant relies upon the arguments for patentability advanced with respect to the alleged lack of anticipation of claim 1 by Grion in contesting this obviousness rejection. Those arguments are unpersuasive, as noted above. Appellant additionally argues that the Grion reference teaches away from the claimed invention because Grion employs a flat sea approximation that is directly contrary to the “teachings of the present invention.” (Reply Br. 6). The argument is unpersuasive on two fronts. First, as discussed above with respect to the anticipation rejection, claim 7, in its broadest reasonable interpretation, does not exclude processes that involve the use of a flat sea approximation, in that the determination of a calibration filter is not limited, by the claim terminology, to processing instructions requiring the determination to involve a correction for non-flat sea surface conditions. Second, Appellant has not pointed to any part of the Grion disclosure as evidencing that Grion criticizes, discredits or otherwise discourages the use of a process that involves determining a calibration filter, whether to correct for non-flat sea surface conditions or other conditions disclosed by Appellant as potential sources of imprecise data. In re Fulton, 391 F.3d at 1201. The rejection of claims 7, 9-12 and 14-19 as obvious over Grion will be sustained. Appeal 2008-003972 Application 10/858,968 14 Claims 2, 8 and 13--Obviousness--Grion in view of Starr Appellant does not separately argue the patentability of any of these claims. Claim 2 will be taken as representative. Appellant relies upon the arguments for patentability advanced with respect to the alleged nonobviousness of claim 7 in view of Grion. For the same reasons set forth above with respect to claim 7, we will sustain this rejection. Claims 1-3 and 5--Anticipation by Singh Appellant does not separately argue the patentability of any of these claims for this rejection. Claim 1 will be taken as representative. Appellant relies solely upon the same arguments for patentability advanced with respect to the alleged lack of anticipation of claim 1 by Grion in contesting this rejection. In particular, Appellant’s position is that, because the process employed by Singh is based on a flat sea approximation, Singh fails to teach the determination of a calibration filter. For the same reasons set forth above in discussing the rejection of claim 1 as anticipated by Grion, we will sustain this rejection. Claims 7-10, 12-15, 17 and 19--Obviousness--Singh Appellant does not separately argue the patentability of any of these claims. Claim 7 will be taken as representative. Appellant relies upon the arguments for patentability advanced with respect to the alleged lack of anticipation of claim 1 by Singh in contesting this obviousness rejection. Those arguments are unpersuasive of error, as noted above. Appellant additionally argues that the Singh reference teaches away from the claimed invention because Singh employs a flat sea Appeal 2008-003972 Application 10/858,968 15 approximation that is directly contrary to the “teachings of the present invention.” (Reply Br. 6). This additional argument is unpersuasive for the same reasons presented with respect to the rejection of claim 7 as being obvious in view of Grion. Appellant has not pointed to any part of the Singh disclosure as evidencing that Singh criticizes, discredits or otherwise discourages the use of a process that involves determining a calibration filter, whether to correct for non-flat sea surface conditions or other conditions disclosed by Appellant as potential sources of imprecise data. The rejection will be sustained. Claims 1, 3, 5 and 6--Anticipation by Monk Appellant does not separately argue the patentability of any of these claims for this rejection. Claim 1 will be taken as representative. Appellant relies solely upon the same arguments for patentability advanced with respect to the alleged lack of anticipation of claim 1 by Grion in contesting this rejection. In particular, Appellant’s position is that, because the process employed by Monk assumes a flat sea boundary condition, Monk fails to teach the determination of a calibration filter. For the same reasons set forth above in discussing the rejection of claim 1 as anticipated by Grion, we will sustain this rejection. Claims 7, 9-12 and 14-19--Obviousness--Monk Claims 2, 8 and 13--Obviousness--Monk in view of Starr The Examiner correctly points out that the Appeal Brief does not address these two grounds of rejection, and identified the grounds as not under review on appeal. (Answer 4). Appellant concedes that the Appeal Brief did not address these two grounds of rejection, but contends that the Appeal 2008-003972 Application 10/858,968 16 rejections are properly before the Board, because: the Notice of Appeal states that the appeal is from the decision in the final rejection that included these grounds; the Examiner addressed these in the Answer, thereby putting them into play; the Board has the authority under 37 C.F.R. 41.50 to render a decision as to these two grounds; the arguments are the same as those for other grounds which are to be addressed; the claim construction issue is the same as for other grounds to be addressed; and the principles of compact prosecution are best served by addressing the grounds now, rather than on remand. (Reply Br. 6). Appellant then tersely presents the same arguments as were advanced in connection with the obviousness rejections in view of Grion and Singh. (Reply Br. 6-7). None of the reasons presented by Appellant persuade us to deviate from the procedural guidance set forth in Section 1205.02 of the MPEP, which, in detailing the content requirements of an Appeal Brief, states that: [a]n appellant's brief must be responsive to every ground of rejection stated by the examiner that the appellant is presenting for review in the appeal. If a ground of rejection stated by the examiner is not addressed in the appellant's brief, that ground of rejection will be summarily sustained by the Board. Oral argument at a hearing will not remedy such deficiency of a brief. MPEP § 1205.02 (emphasis added). Appellant’s argument that our failure to address these grounds of rejection will go against principles of compact prosecution is clearly misplaced, in that our decision to not address these rejections on the merits will not result in a remand. Following this guidance, which highlights the consequence of not ensuring that the Appeal Brief addresses each ground of Appeal 2008-003972 Application 10/858,968 17 rejection, we summarily sustain the obviousness rejections of claims 7, 9-12 and 14-19 over Monk, and of claims 2, 8 and 13 over Monk in view of Starr. CONCLUSION Appellant has not established that the Examiner erred in rejecting: (i) claims 1 and 3-6 under 35 U.S.C. § 102(b) as being anticipated by Grion; (ii) claims 7, 9-12 and 14-19 under 35 U.S.C. § 103(a) as being unpatentable over Grion; (iii) claims 2, 8 and 13 under 35 U.S.C. § 103(a) as being unpatentable over Grion in view of Starr; (iv) claims 1-3 and 5 under 35 U.S.C. §102(b) as being anticipated by Singh; (v) claims 7-10, 12-15, 17 and 19 under 35 U.S.C. § 103(a) as being unpatentable over Singh (vi) claims 1, 3, 5 and 6 under 35 U.S.C. § 102(b) as being anticipated by Monk; (vii) claims 7, 9-12 and 14-19 under 35 U.S.C. § 103(a) as being unpatentable over Monk; and (viii) claims 2, 8 and 13 under 35 U.S.C. § 103(a) as being unpatentable over Monk in view of Starr. ORDER The decision of the Examiner to reject claims 1-19 is affirmed. Appeal 2008-003972 Application 10/858,968 18 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)(1)(iv) (2007). AFFIRMED Klh WESTERNGECO L.L.C. JEFFREY E. GRIFFIN 10001 RICHMOND AVENUE HOUSTON, TEXAS 77042-4299 Copy with citationCopy as parenthetical citation