Ex Parte Laake

Board of Patent Appeals and Interferences

Jun 8, 2010

10499926 (B.P.A.I. Jun. 8, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ANDREAS LAAKE
____________________

Appeal 2011-000427
Application 10/499,926
Technology Center 3600
____________________

Before: JOHN C. KERINS, JILL D. HILL, and
JEREMY M. PLENZLER, Administrative Patent Judges.

PLENZLER, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-000427
Application 10/499,926

2
STATEMENT OF CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
decision rejecting claims 22, 24-26, 28-31, 34, 35, 37, 39, 40, and 42.
Claims 1-21, 23, 27, 32, 33, 36, and 38 are cancelled.1 We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

CLAIMED SUBJECT MATTER
Claims 22 and 40 are independent. Claim 22, reproduced below, is
illustrative of the claimed subject matter:
1. A seismic surveying arrangement, comprising:
a first array of seismic sources configured to provide
imaging data about an underlying geological structure;
a second array of seismic sources configured to generate
a set of waves that travel substantially within a near surface
layer;
control means for actuating the first and second array of
seismic sources substantially simultaneously; and
a receiver array for recording seismic data from the first
array of seismic sources and the second array of seismic
sources.

1 Claims 41 and 43 are referenced in the “Status of the Claims” section of
the Appeal Brief as being cancelled. App. Br. 6. The Examiner states that
Appellant’s statement as to the status of the claims on appeal is correct.
Ans. 3. We note, however, that these claims have not formally been
cancelled by any Amendment that has been entered into the record.
Appropriate action to effect cancellation of these claims should be taken
upon transfer of jurisdiction to the Examiner subsequent to this decision.
Appeal 2011-000427
Application 10/499,926

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REJECTIONS2
1. Claim 35 is rejected under 35 U.S.C. § 112, second paragraph, as
indefinite;
2. Claims 22, 29-31, 36, 40 and 42 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Robertsson (GB 2341680; pub. Mar. 22, 2000)
and Chambers (US 5,970,023; iss. Oct. 19, 1999);
3. Claims 24-26 and 28 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Robertsson, Chambers, and Garrotta (US 4,914,636; iss.
Apr. 3, 1990);
4. Claims 30 and 39 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Robertsson, Chambers, and Gallagher (US 4,933,912; iss.
Jun. 12, 1990);
5. Claim 34 are rejected under 35 U.S.C. § 103(a) as being unpatentable
over Robertsson, Chambers, and Meynier (US 6,338,394 B1; iss. Jan. 15,
2002);
6. Claim 34 are rejected under 35 U.S.C. § 103(a) as being unpatentable
over Robertsson, Chambers, and Lavergne (US 3,716,111; iss. Feb. 13,
1973);
7. Claims 34 are rejected under 35 U.S.C. § 103(a) as being unpatentable
over Robertsson, Chambers, and Ambs (US 5,969,297; iss. Oct. 19, 1999);
and
8. Claims 35 and 37 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Robertsson, Chambers, and Barr (US 5,587,968; iss. Dec.
24, 1996).

2 Claim 38 is listed as appealed by Appellant (App. Br. 14), but was
cancelled in Appellant’s Response filed on December 11, 2006.
Appeal 2011-000427
Application 10/499,926

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OPINION
Indefiniteness – Claim 35
The Examiner rejects claim 35 as indefinite because the claim
includes a means-plus-function limitation (“means for processing”),
invoking 35 U.S.C. § 112, sixth paragraph, and the Specification and
Drawings do not disclose sufficient corresponding structure for performing
the claimed function. Ans. 14-18. In response, Appellant simply contends
that “[t]he specification provides sufficient corresponding structure, material
or acts for ‘means for processing seismic data acquired in response to
actuation of the second array of seismic sources to obtain information about
the near surface layer,’ as recited in claim 35” and reproduces numerous
paragraphs from the Specification. Second Reply Br. 5-73. However,
Appellant has not pointed to any specific structure and we fail to see where
Appellant has disclosed structure corresponding to the “means for
processing” recited in claim 35. For example, Appellant has not pointed us
to a processor or any other structure, let alone a processor (or other
structure) programmed with a specific algorithm for carrying out the claimed
function. Thus, we are not apprised of Examiner error and we sustain the
rejection of claim 35.

Obviousness – Claims 22, 24-26, 28-31, 34, 35, 37, 39, 40, and 42
Claims 22 and 40 are each directed to a seismic surveying
arrangement and recite “control means for actuating the first and second
array of seismic sources substantially simultaneously.” The Examiner finds

3 The “Second Reply Brief” corresponds to the Reply Brief filed September
8, 2010.
Appeal 2011-000427
Application 10/499,926

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that Robertsson discloses control means for actuating the first and second
seismic sources substantially simultaneously at page 9, line 30 to page 10,
line 29 and also in Figures 1 and 2. Ans. 5, 6. The Examiner explains that
under the broadest reasonable interpretation, “substantially simultaneously”
means that the sources are activated within a close time of each other and
asserts that Robertsson teaches substantially simultaneous activation of the
first and second seismic sources 110, 114 because the sources 110, 112, 114
are activated at predetermined times. Ans. 21-22; see also Robertson, pg. 9,
l. 30 – pg. 10, l. 2. The Examiner further explains that Figure 2 of
Robertsson shows all of the seismic sources generating waves at the same
time, and therefore shows the seismic sources being activated substantially
simultaneously. Ans. 22.
Appellant argues that Robertsson does not teach control means for
actuating the first and second array of seismic sources substantially
simultaneously because there is no discussion in Robertsson regarding the
manner in which the seismic sources will be actuated. App. Br. 18.
Appellant explains that the “passages directed to the seismic sources (i.e.,
page 9, line 31 to page 11, line 8) and Figure 2 merely provide a general
description of a seismic data acquisition system.” Id. We agree.
While the portion of Robertsson cited by the Examiner discusses
activation of the seismic sources 110, 112, 114 at predetermined times, there
is no discussion relating the timing for activation of the various seismic
sources 110, 112, 114 to one another. Further, Figure 2 of Robertsson is
described as “a schematic illustration of a seismic data acquisition and
processing system.” Robertsson, p. 9, ll. 31-32. Although the schematic
illustration of the waves (lines 134, 136) for the first and second seismic
Appeal 2011-000427
Application 10/499,926

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sources 110, 114 both appear in Figure 2, the Examiner has not pointed to
anything in Robertsson suggesting that this depiction indicates relative
timing for activation of the seismic sources 110, 112, 114. Therefore, we do
not conclude that Figure 2 of Robertsson is anything more than a schematic
illustration of how these waves are transmitted through the ground. For
these reasons, we do not sustain the rejection of claims 22 and 40 or the
rejection of claims 29-31, 36, and 42, which depend from claim 22 or 40.
Claims 24-26, 28, 30, 34, 35, 37, and 39 also depend from claim 22.
The stated reasoning for the rejections of claims 24-26, 28, 30, 34, 35, 37,
and 39 does not cure the deficiency in the rejection of claim 22. Thus, the
rejections of claims 24-26, 28, 30, 34, 35, 37, and 39 are also not sustained.

DECISION
We AFFIRM the rejection of claim 35 under 35 U.S.C. § 112, second
paragraph.
We REVERSE the rejections of claims 22, 24-26, 28-31, 34, 35, 37,
39, 40, and 42 under 35 U.S.C. § 103(a).
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).

AFFIRMED-IN-PART

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