Ex Parte Lehman et al

Patent Trial and Appeal Board

Feb 11, 2015

11440810 (P.T.A.B. Feb. 11, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/440,810 05/25/2006 Lyle V. Lehman 2005-IP-017204U1 9063
7590 02/12/2015
Halliburton Energy Services, Inc.
2600 S. 2nd Street
Duncan, OK 73536-0440
EXAMINER
OSBORNE, LUKE R
ART UNIT PAPER NUMBER
2123
MAIL DATE DELIVERY MODE
02/12/2015 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte LYLE V. LEHMAN and MOHAMED SOLIMAN
________________

Appeal 2012-007457
Application 11/440,810
Technology Center 2100
________________

Before DENISE M. POTHIER, JEREMY J. CURCURI, and
IRVIN E. BRANCH, Administrative Patent Judges.

CURCURI, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–22. App. Br. 6. We have jurisdiction under 35
U.S.C. § 6(b).
Claims 1–22 are rejected under 35 U.S.C. § 102(b) as anticipated by
Department of Energy - Hydraulic Fracturing White Paper, Appendix A,
EPA 816-R-04-003 (June 2004) (hereafter “WP”). Ans. 4–12.
We affirm.

Appeal 2012-007457
Application 11/440,810

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STATEMENT OF THE CASE
Appellants’ invention relates to “[f]racture stimulation of a well.”
Spec. 1:4. Claim 1 is illustrative and reproduced below:
1. A method for development of a naturally fractured
formation, comprising:
generating a computer implemented fracture model from
a fracture treatment of a well in a naturally fractured formation
comprising natural fractures;
the fracture model simulating an effect of a proposed
fracture treatment within the naturally fractured formation, the
fracture model comprising an induced and natural fracture
volume generated by the proposed fracture treatment; and
determining at least one of a well spacing or a fracture
treatment designed for one or more wells in the naturally
fractured formation based on the fracture model.

ANALYSIS
Claims 1, 3–8, 10–19, 21, and 22
The Examiner finds WP describes all limitations of claim 1.
Ans. 4–5.
Appellants present the following principal arguments:
i. “[T]he portions of White Paper relied-upon in the Office Action
do not teach or suggest that any alleged ‘fracture model’ discussed in White
Paper includes both induced and natural fracture volume generated by a
proposed fracture treatment.” App. Br. 13 (underlining in original).
ii. “First, the term ‘treatment volume’ does not suggest both
natural and induced facture [sic] volume. Second, the Office Action does
not show that the controlled data of ‘treatment volume’ is volume generated
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by a proposed fracture treatment, rather than, for example, a previously
performed fracture treatment.” App. Br. 13.
iii.
Claim 1 recites that a fracture treatment is determined “based
on the fracture model,” White Paper merely recites several
criteria conventionally used to design a fracture treatment.
None of which are a fracture model as recited in Claim 1. For
instance, although the Office Action may allege that “total fluid
volume pumped” teaches or suggests a volume encompassing
both natural and induced fractures, one of ordinary skill in the
art would recognize that total fluid volume pumped is often
(indeed, usually) greater than a volumetric sum of natural and
induced fractures.
App. Br. 14.
iv. “[T]he Office Action fails to show that White Paper was
publicly available prior to the critical date, May 25, 2005.” App. Br. 15.
We are not persuaded of any error in the Examiner’s findings.
Regarding arguments (i) and (ii), we find these arguments
unpersuasive. The Examiner explains “[t]he treatment volume as disclosed
by White Paper includes both induced and natural fractures.” Ans. 13
(citing WP, A-2–A-4). That is, WP’s proposed treatment volume of
treatment fluid corresponds to at least the induced (e.g., damaged coal
seams) and natural fracture volume for a proposed fracture treatment. See
id. The Examiner further explains “WP is primarily concerned with the
fracture treatment of naturally fractured formations, which means that the
treatment volume is a [treatment] volume of simulation of a fracture
treatment containing natural fractures.” Ans. 13 (citing WP, A-2–A-4).
We find the Examiner’s position reasonable, and Appellants’ Reply
Brief does not point out any error in the Examiner’s position. We conclude
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that a broad, but reasonable interpretation of the claim language does not
preclude a finding that WP describes the argued limitations.
Thus, we see no reason why WP does not describe the recited fracture
model comprising an induced and natural fracture volume generated by the
proposed fracture treatment.
Regarding argument (iii), we also find this argument unpersuasive.
Even if total fluid volume pumped may be greater than a volume of natural
and induced fractures, claim 1 recites (emphasis added), “the fracture model
comprising an induced and natural fracture volume generated by the
proposed fracture treatment.” Thus, the fact that the total fluid volume may
be greater than a volume of natural and induced fractures does not preclude a
finding that WP describes the argued limitations.
Regarding argument (iv), we also find this argument unpersuasive.
The Examiner explains, and we agree, that “[t]he listed publication date for
the document is June 2004.” Additionally, using the wayback machine (i.e.,
http://web.archive.org/web/), the Examiner provides evidence that WP was
publically accessible and available as of October 10, 2004.1 Ans. 15 (citing
http://www.epa.gov/safewater/uic/cbmstudy/docs.html). On the record, the
date when WP was publically accessible is at least October 10, 2004.
Although Appellants present various arguments (see App. Br. 15–16) that
WP may not have been publically available, Appellants do not present any
evidence to rebut the Examiner’s findings. See generally Reply Br.

1 We performed an independent search of the link on the wayback machine
website and located Evaluation of Impacts to Underground Sources of
Drinking Water by Hydraulic Fracturing of Coalbed Methane Reservoirs at:
https://web.archive.org/web/20041010093656/http://www.epa.gov/safewater
/uic/cbmstudy/docs.html (last visited February 6, 2015).
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Application 11/440,810

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Weighing the Examiner’s evidence against Appellants’ naked arguments
without further evidence, we find that on this record the Examiner has
sufficiently established that WP was published by October10, 2004.
We, therefore, sustain the Examiner’s rejection of claim 1, as well as
claims 3–8, 10–19, 21, and 22, which are not argued separately with
particularity.

Claims 2, 9, and 20
The Examiner finds WP describes all limitations of claim 2. Ans. 5
(citing WP, A-4). The Examiner relies on WP’s use of production data to
design a fracture treatment for describing the recited updating the fracture
model based on production data from the well in the naturally fractured
formation. Ans. 5 (citing WP, A-4).
Appellants argue “this relied-upon discussion merely implies that
production data from wells other than the well in which the proposed
fracture treatment was executed may be used to design a fracture treatment.”
App. Br. 17 (underlining in original); see also Reply Br. 1–4.
We are not persuaded of any error in the Examiner’s findings. We
adopt as our own the Examiner’s further explanation:
The cited portion states that production data can be used. The
Examiner finds it unreasonable that a person of ordinary skill in
the art would come to the conclusion that Appellants are
stating. That is that [] they would disregard the production data
of the well having the fracture treatment designed and rather
use production data from other wells.
Ans. 16.
Claim 2 recited “updating the fracture model based on production data
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from the well in the naturally fractured formation.” WP (A-4) (emphasis
added) describes
[t]he data used to design a fracture treatment can be obtained
from a number of sources, such as drilling records, completion
records, well files, open hole geophysical logs, cores and core
analyses, well tests, production data, geologic records, and
other public records, such as publications.
We see no reason why WP does not describe the recited updating the
fracture model (e.g., WP’s designing a fracture treatment) based on
production data from the well in the naturally fractured formation (e.g.,
WP’s use of production data, particularly when the well is in the naturally
fractured formation).
We, therefore, sustain the Examiner’s rejection of claim 2, as well as
claims 9 and 20, which recite similar limitations to claim 2 and are not
argued separately with particularity.

DECISION
The Examiner’s decision rejecting claims 1–22 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).

AFFIRMED
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