Ex Parte Grion

Board of Patent Appeals and Interferences

Oct 29, 2009

10858968 (B.P.A.I. Oct. 29, 2009)

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

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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.
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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;
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(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
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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
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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.
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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
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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
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-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).
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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).
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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
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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.
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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.
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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
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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
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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
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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.
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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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED

Klh

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