Ex Parte HERRMANNDownload PDFPatent Trials and Appeals BoardMay 24, 201913664733 - (D) (P.T.A.B. May. 24, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/664,733 10/31/2012 Philippe HERRMANN 11171 7590 05/29/2019 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. 0336-105/100249 4946 EXAMINER ARMSTRONG, JONATHAN D ART UNIT PAPER NUMBER 3645 NOTIFICATION DATE DELIVERY MODE 05/29/2019 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): Mailroom@ppblaw.com eofficeaction@appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PHILIPPE HERRMANN Appeal2018-007406 Application 13/664,733 Technology Center 3600 Before BRETT C. MARTIN, MICHAEL J. FITZPATRICK, and WILLIAM A. CAPP, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final rejection of claims 1--4 and 7-20. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM-IN-PART. 1 CGGVERITAS SERVICES SA is the Applicant and real party in interest. Appeal Br. 2. Appeal2018-007406 Application 13/664,733 THE INVENTION Appellant's invention relates to marine seismic survey. Spec. 1. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A marine node for recording seismic waves underwater, the node comprising: a spherical body made of a material that has a density equal to or less than a density of the water so that the body is buoyant neutral or positive; a first sensor located in the body and configured to record three dimensional movements of the node; a second sensor located in the body and configured to record pressure waves propagating through the water; and one or more cables connected to the first and second sensors and configured to exit the body to be connected to an external device, wherein the body is coupled to the water and the node is buoyancy neutral, and wherein the first sensor includes four individual sensors configured to determine a motion of the body, each of the four individual sensors has a corresponding sensing axis, and the four axes intersect at a central point. THE REJECTIONS The Examiner relies upon the following as evidence in support of the rejections: Hathaway US 4,901,287 Feb. 13, 1990 Snekkevik US 7,690,936 Bl Apr. 6, 2010 Kasper US 8,054,712 Bl Nov. 8, 2011 G.L. D'Spain, et al., Trip Report-August 1987 Swallow Float Deployment with Rum, Marine Physical Laboratory, Scripps Institution of Oceanography, San Diego, CA. 3M, GLASS BUBBLES FOR BUOYANCY AND THERMAL INSULATION, 2010. Ramotowski, Thomas, et al., NUWC XP-1 Polyurethane-Urea: A New "Acoustically Transparent" Encapsulantfor 2 Appeal2018-007406 Application 13/664,733 Underwater Transducers and Hydrophones, Transducer Materials Branch, NUWC Division Newport, 1176 Howell Street, Newport, RI 02841, Sept. 1, 2003. Ho, Chi-Wei, et. al., Design and Implementation of a 12-Axis Accelerometer Suite, The 2009 IEEE/RSJ International Conference on Intelligent Robots and Systems, St. Louis, Mo., October 11-15, 2009. Lobecker, Robert N., et al, Real Time Oceanographic Data From Georges Bank, Oceans'78, IEEE, 1978. Vasilescu, I., et al., Autonomous Modular Optical Underwater Robot (AMOUR) Design, Prototype and Feasibility Study, International Conference on Robotics and Automation, Barcelona, Spain, Proceedings of the 2005 IEEE, April 2005. Lewis, B.T.R., et al., Converted Shear Waves As Seen By Ocean Bottom Seismometers And Surface Buoys, Bulletin of the Seismological Society of America. Vol. 67, No. 5, pp. 1291- 1302. October 1977. Yang, Yan, et al., Novel Autonomous Float for Deep-Sea Hydrothermal Plume Observation, Proceedings of the Twentieth (2010) International Offshore and Polar Engineering Conference, The International Society of Offshore and Polar Engineers (JSOPE), Beijing, China, June 20-25, 2010. The following rejections are before us for review: 2 1. Claims 1--4 and 7-20 are rejected under 35 U.S.C. 1 12, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor regards as the invention. 2. Claims 1 and 2 are rejected under 35 U.S.C. § 103(a), as being unpatentable over D'Spain, Snekkevik, 3M, Ramotowski, and Ho. 2 A rejection of all pending claims under 35 U.S.C. § 112, first paragraph, has been withdrawn by the Examiner. Ans. 3, ,r (4). 3 Appeal2018-007406 Application 13/664,733 3. Claims 3, 4, and 7 are rejected under 35 U.S.C. § 103(a), as being unpatentable over D'Spain, Snekkevik, 3M, Ramotowski, Ho, and Lobecker. 4. Claims 8-10 are rejected under 35 U.S.C. § 103(a), as being unpatentable over D'Spain, Snekkevik, 3M, Ramotowski, Ho, and Vasilescu. 5. Claims 11, 12, and 19 are rejected under 35 U.S.C. § 103(a), as being unpatentable over Kasper, D'Spain, Snekkevik, Lewis, and Hathaway. 6. Claims 13-15 are rejected under 35 U.S.C. § 103(a), as being unpatentable over Kasper, D'Spain, Snekkevik, Lewis, Hathaway, and Ho. 7. Claims 16-18 are rejected under 35 U.S.C. § 103(a), as being unpatentable over Kasper, D'Spain, Snekkevik, Lewis, Hathaway, Ho, and Vasilescu. 8. Claim 20 is rejected under 35 U.S.C. § 103(a), as being unpatentable over Yang and Ho. OPINION Indefiniteness The Examiner states that a claim recitation of "material that has a density similar to a density of the water" conflicts with the limitation that "the body is buoyant neutral or positive" in independent claims 1, 11, and 19. Final Action 3. Appellant traverses the rejection. Appeal Br. 6-8. The Examiner's Answer does not respond to Appellant's indefiniteness arguments and is otherwise silent on the indefiniteness grounds of rejection. See generally Answer. The alleged claim recitation of "material that has a density similar to a density of the water" does not appear in any of the pending claims. Claims 4 Appeal2018-007406 Application 13/664,733 App. Otherwise, in our opinion, a person of ordinary skill in the art would understand the meaning of "the body is buoyant neutral or positive." Thus, we do not sustain the Examiner's Section 112 indefiniteness rejection of claims 1--4 and 7-20. Unpatentability of Claims 1 and 2 over D 'Spain, Snekkevik, 3M, Ramotowski, and Ho Appellant argues claims 1 and 2 as a group. Appeal Br. 9-11. We select claim 1 as representative. See 37 C.F.R. § 4I.37(c)(l)(iv). Appellant argues that, contrary to the Examiner's findings of fact, the applied art, in general, and Ho, in particular, fails to satisfy the limitation in claim 1 directed to the sensing axes of each of four individual sensors intersecting at a central point. Appeal Br. 10. In response, the Examiner states that Ho discloses a configuration of accelerometers as a "spatial tetrahedron" that obtains rotational information from such configuration. Ans. 4. The Examiner concludes that, therefore, Ho discloses the exact configuration that Appellant is claiming. Id. In reply, Appellant points out that Ho's accelerometers all have the same orientation such that the respective sensing axes are parallel. Reply Br. 3. The Appellant's position is correct. Ho's accelerometers do not have sensing axes that intersect at a central point as claimed. See Ho, p. 2199, Fig. 1. The Examiner's findings of fact are not supported by a preponderance of the evidence. Accordingly, we do not sustain the Examiner's unpatentability rejection of claims 1 and 2. 5 Appeal2018-007406 Application 13/664,733 Unpatentability of Claims 3, 4, and 7-10 over Combinations Based on D 'Spain These claims depend, directly or indirectly, from claim 1. Claims App. The Examiner's rejection of these claims suffers from the same infirmity that was identified above with respect to claim 1. Thus, for essentially the same reason expressed above in connection with claim 1, we do not sustain the rejection of claims 3, 4, and 7-10. Unpatentability Claims 11, 12, and 19 over Kasper, D 'Spain, Snekkevik, Lewis, and Hathaway Claim 11 is an independent claim and claims 12 and 19 depend therefrom. Claims App. The claims are argued together and we select claim 11 as representative. See 37 C.F.R. § 4I.37(c)(l)(iv). Appellant first argues that the applied art fails to satisfy a supposed limitation in claim 11 directed to four sensing axes intersecting at a central point. Appeal Br. 9-11. Claim 11 is reproduced below. 11. A marine node arrangement for recording seismic waves underwater, the arrangement comprising: a node configured to record the seismic waves, wherein the node includes a spherical body made of a material that has a density equal to or less than a density of the water so that the body is buoyant neutral or positive, a first sensor located in the body and configured to record three dimensional movements of the node, a second sensor located in the body and configured to record pressure waves propagating through the water; an anchor configured to attach to a bottom of the water; and a tether configured to connect the node to the anchor, the tether being configured to transfer data recorded by the node to the anchor, wherein the node is configured to float above the ocean bottom to receive the seismic waves, 6 Appeal2018-007406 Application 13/664,733 wherein the tether extends only between the node and the anchor, and wherein the node is free of a processing device or data storage device. Claims App. As can be seen, there is no limitation in claim 11 directed to sensing axes that intersect at a central point. Claims App. Consequently, this argument does not apprise us of Examiner error. Next, Appellant argues that D'Spain fails to disclose the "second sensor" limitation in claim 11. Appeal Br. 11-12. Appellant further argues that the hydrophone disclosed in D' Spain was not used in events described in the trip report due to lack of connectivity. Id. at 12. In response, the Examiner observes that D'Spain states that its device "usually" contains an 8 kHz acoustic localization system. Ans. 5. The Examiner further states that a hydrophone, such as disclosed in D' Spain, does record pressure waves and thus satisfies the "second sensor" limitation. Id. In reply, Appellant argues that the Examiner's Answer fails to rebut the arguments stated in Appellant's Appeal Brief. Reply Br. 3. D' Spain discloses an engineering test involving the deployment of the Marine Physical Laboratory's Swallow Floats and Remote Underwater Manipulator. D'Spain, p. 6. 3 The Swallow Floats usually contain an 8 kHz acoustic localization system. Id. Swallow Float 11 is reported to contain an 8 kHz hydrophone. Id. A hydrophone is well-known to be an underwater listening device that is used to detect sounds in water. Hydrophones are well-known to have 3 Page number references are to numbers printed in the upper right hand comer of D'Spain as it exists in the prosecution history. 7 Appeal2018-007406 Application 13/664,733 been used in marine seismic exploration for decades. Sound waves propagating through water are well-known to consist of alternating compressions and rarefactions of the water, which can be detected by a hydrophone as changes in pressure. Appellants do not direct us to any language in the Specification that restricts the scope of the "second sensor" limitation so as to exclude hydrophones. Appellants' abbreviated and conclusory arguments that D'Spain's hydrophone is not configured to record pressure waves propagating through the water is not sufficient to rebut the Examiner's contrary findings. See Estee Lauder, Inc. v. L'Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997) (explaining that attorney argument cannot take the place of evidence in the record). We are not apprised of Examiner error and, therefore, sustain the Examiner's unpatentability rejection of claims 11, 12, and 19. Unpatentability of Claims 13-15 over Kasper, D 'Spain, Snekkevik, Lewis, Hathaway, and Ho These claims depend indirectly from claim 11 and are not separately argued apart from their dependency. Appeal Br. 12. For essentially the same reasons set forth above in connection with the rejection of claim 11, we sustain the Examiner's unpatentabilityrejection of claims 13-15. See 37 C.F.R. § 4I.37(c)(l)(iv) (failure to separately argue claims). Unpatentability of Claims 16-18 over Kasper, D 'Spain, Snekkevik, Lewis, Hathaway, Ho, and Vasilescu. These claims depend, directly or indirectly, from claim 11 and are not separately argued apart from their dependency. Appeal Br. 12. We sustain the Examiner's unpatentability rejection of claims 13-15. 37 C.F.R. § 4I.37(c)(l)(iv). 8 Appeal2018-007406 Application 13/664,733 Unpatentability of Claim 20 over Yang and Ho Claim 20 is an independent claim that, like claim 1, contains a limitation directed to four sensing axes intersecting at a central point. Claims App. Once again, as with the rejection of claim 1, the Examiner erroneously relies on Ho as satisfying this limitation. Final Action 17. Consequently, we do not sustain the Examiner's unpatentability rejection of claim 20. DECISION The decision of the Examiner to reject claims 1--4 and 7-20 under Section 112 as indefinite is REVERSED. The decision of the Examiner to reject claims 1--4, 7-10, and 20 as unpatentable under Section 103 is REVERSED. The decision of the Examiner to reject claims 11-19 as unpatentable under Section 103 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-IN-PART 9 Copy with citationCopy as parenthetical citation