Ex Parte Poole

Patent Trial and Appeal Board

May 31, 2018

14050064 (P.T.A.B. May. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/050,064 10/09/2013 Gordon Poole
11171 7590 06/04/2018
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.
0336-203-2/100385 1070
EXAMINER
LE,JOHNH
ART UNIT PAPER NUMBER
2862
NOTIFICATION DATE DELIVERY MODE
06/04/2018 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.
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GORDON POOLE
Appeal2017-008530
Application 14/050,064
Technology Center 2800
Before DONNA M. PRAISS, BRIAND. RANGE, and
JENNIFER R. GUPTA, Administrative Patent Judges.
PRAISS, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Appellant2 seeks our review under 35 U.S.C. § 134(a) from the Final
rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
THE INVENTION
The invention relates to geophysical data acquisition and processing,
specifically processing data collected during a geophysical survey, such as a
1 In this Opinion, we refer to the Specification filed October 9, 2013
("Spec."), the Final Office Action entered July 8, 2016 ("Final Act."), the
Appeal Brief filed December 1, 2016 ("Br."), and the Examiner's Answer
entered February 3, 2017 ("Ans.").
2 Applicant CGG Services SA is the Appellant and also identified in the
Brief as the real party in interest. Br. 2.
Appeal2017-008530
Application 14/050,064
seismic survey. Spec. ,r 2. According to the Specification, seismic data
acquisition and processing can be used to generate a profile (image) of the
geophysical structure under the ground to suggest the presence or absence of
oil and gas reservoirs. Id. ,r 4. Claim 1 is illustrative, and is reproduced
below from the Claims Appendix to the Appeal Brief:
1. A method for processing seismic data corresponding
to a subsurface, the method comprising:
receiving input seismic data ( di) characterized by N
spatial coordinates, wherein the input seismic data is in a first
spatial domain;
expanding with a computer the N spatial coordinates of
the input seismic data ( di) to N' modified spatial coordinates,
where N' is greater than N, to provide spatially expanded
seismic data (de) that is in a second spatial domain;
transforming the spatially expanded seismic data (de) to a
model domain to provide model domain data ( dm); and
generating a final image ( df) of the subsurface using the
model domain data ( dm).
Br. 17 (Claims Appendix).
THE REJECTION
The Examiner maintains and Appellant appeals the rejection of
claims 1-20 under 35 U.S.C. § 101 as being directed to non-statutory subject
matter. Ans. 2; Br. 5-16.
ANALYSIS
Appellant argues the claims as a group. Br. 5-16. We select claim 1
as the representative claim for this group, and the remaining claims stand or
fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
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Alice Corp. Pty. Ltd. v. CLS Bank Int'!, 134 S. Ct. 2347 (2014)
identifies a two-step framework for determining whether claimed subject
matter is judicially-excepted from patent eligibility under § 101.
According to Alice step one, "[ w ]e must first determine whether the
claims at issue are directed to a patent-ineligible concept," such as an
abstract idea. Alice, 134 S. Ct. at 2355.
In that regard, the Examiner determined that the claims are directed to
an abstract idea because "[t]he gathering and combining data [process steps]
merely employ[] mathematical relationships to manipulate existing
information to generate additional information in the form of an 'image'
without limit to any use of the image." Final Act. 3 ( citing Diamond v.
Diehr, 450 U.S. 175 (1981); Parker v. Flook, 457 US 584 (1978);
Gottschalkv. Benson, 409 U.S. 63 (1972); Digitech Image Tech., LLC v
Electronics for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014); In re Grams,
888 F. 2d 835 (Fed. Cir. 1989)). The Examiner found that the step of
receiving input seismic data ( di) is routine data gathering and the step of
expanding with a computer the N spatial coordinates of the input seismic
data ( di) to N' modified spatial coordinates is merely a mathematical
algorithm performed by a computer that does not amount to significantly
more than the abstract idea. Id. at 2-3. The Examiner also found that the
step of "generating a final image ( df) of the subsurface using the domain data
( dm)" does not show any tangible result in the real world that would qualify
as significantly more, nor is there any indication that the combination of
elements improves the functioning of a computer or any other technology.
Id. at 4.
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Application 14/050,064
Appellant contends that the Examiner erred in applying the first step
to conclude that claim 1 is directed to an abstract idea. Br. 6-7. According
to Appellant, the Examiner erred because "the claimed methods provide a
novel framework for seismic data processing yielding unexpected superior
results." Id. at 7 (citing Spec. ,r,r 62-64). Id. at 7. Appellant contends that
"none of the claimed steps refer to 'gathering,' 'combining' or
'mathematical relationships."' Id. Appellant further argues that the claimed
image is a "meaningful recited feature of the image representing the
subsurface, as the input seismic data which is processed." Id. According to
Appellant, the pending claims are like those of Research Corp. Tech. Inc. v.
Microsoft Corp., 627 F.3d 859 (Fed. Cir. 2010) because the 2014 Interim
Guidance on Patent Subject Matter Eligibility hypothetical example claims
based on that decision "show an improvement in the functionality of the
computer itself and also show an improvement to another
technology/technical field, either of which can show eligibility." Br. 8-9.
"In determining the eligibility of respondents' claimed process for
patent protection under§ 101, their claims must be considered as a whole."
Diamond v. Diehr, 450 U.S. 175, 188 (1981). The question is whether the
claims as a whole "focus on a specific means or method that improves the
relevant technology" or are "directed to a result or effect that itself is the
abstract idea and merely invoke generic processes and machinery." McRO,
Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314 (Fed.
Cir. 2016).
According to Enfish v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir.
2016), the question is "whether the focus of the claims is on [a] specific
asserted improvement in computer capabilities ... or, instead, on a process
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Application 14/050,064
that qualifies as an 'abstract idea' for which computers are invoked merely
as a tool." Id. at 1335-36. The court found in that case that the "plain focus
of the claims" was on "an improvement to computer functionality itself, not
on economic or other tasks for which a computer is used in its ordinary
capacity." Id. at 1336.
Here claim 1 sets forth the following four steps:
[1] receiving input seismic data (di) characterized by N spatial
coordinates, wherein the input seismic data is in a first spatial
domain;
[2] expanding with a computer the N spatial coordinates of the
input seismic data ( di) to N' modified spatial coordinates, where
N' is greater than N, to provide spatially expanded seismic data
( de) that is in a second spatial domain;
[3] transforming the spatially expanded seismic data (de) to a
model domain to provide model domain data ( dm); and
[ 4] generating a final image ( df) of the subsurface using the
model domain data ( dm).
Claim 1, as a whole, is plainly focused on collecting and processing data in
order to produce results. Claim 1 is not focused on an improvement to the
recited "computer" or other tools used to perform the claimed receiving,
expanding, transforming, and generating operations. Cf In re TL!
Communications LLC Patent Litigation, 823 F.3d 607, 613 (Fed. Cir. 2016)
(The claims' focus "was not on an improved telephone unit or an improved
server.").
In addition, "[t]he 'abstract idea' step of the inquiry calls upon us to
look at the 'focus of the claimed advance over the prior art' to determine if
the claim's 'character as a whole' is directed to excluded subject matter."
Affinity Labs of Texas, LLC v. DirectTV, LLC, 838 F.3d 1253, 1257 (Fed.
Cir. 2016) (citing Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350,
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1353 (Fed. Cir. 2016)); see also Enfish, 822 F.3d at 1335, quoted in Apple,
Inc. v. Ameranth, Inc., 842 F.3d 1229, 1241 (Fed. Cir. 2016).
In that regard, the Specification discusses the problem as being that of
de-noising or improving the signal-to-noise ratio of data received from
seismic sources to generate high-resolution images of the subsurface from
acoustic reflection measurements made by receivers. Spec. ,r,r 7-26.
According to the Specification, the novelty in Appellant's data processing
method is receiving input seismic data comprising N spatial coordinates in a
first spatial domain, expanding the N spatial coordinates of the input seismic
data to N' modified spatial coordinates, where N' is greater than N, and
providing spatially expanded seismic data that is in a second spatial domain.
Id. ,r 42. The Specification further describes the process of transforming the
expanded data to a model domain as a mathematical operation. Spec. ,r 54.
The step of generating a final image is described in the Specification as a
stacking operation on the output domain data or subtracting the output
seismic data from the input seismic data or the spatially expanded seismic
data in order for the final image to communicate information about the
subsurface. Id. ,r 60. In light of the Specification's description of the
problem and solution, the invention's advance over the prior art is in
improving the collection and evaluation of data using mathematical
operations for de-noising seismic data.
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Given that the plain focus of claim 1, as a whole, is on data collection
and processing activities3 and the Specification's description of the problem
and the solution is improving the collection and analysis of seismic data of a
subsurface, claim 1 is properly characterized as being "directed to" a
mathematical concept or algorithm for evaluating data to generate an image
of the subsurface. Algorithms or mathematical formulas are, like a law of
nature, abstract ideas. Diamond v. Diehr, 450 U.S. at 191; Parker v. Flook,
437 U.S. 584, 589 (1978); Gottschalk v. Benson, 409 U.S. 63, 71-72 (1972).
Accordingly, we agree with the Examiner that claim 1 is directed to an
abstract idea. Cf Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d at 1354
( claims directed to a "process of gathering and analyzing information of a
specified content," i.e., data describing operations in a power grid, and then
displaying the results were directed to an abstract idea). 4
Step two of the Alice framework is "a search for an 'inventive
concept' - i.e., an element or combination of elements that is 'sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself."' Alice, 134 S. Ct. at 2355 (alteration in
3 Cf Elec. Power Grp., LLC, 830 F.3d at 1353 (When "the focus of the
asserted claims" is "on collecting information, analyzing it, and displaying
certain results of the collection and analysis," the claims are directed to an
abstract idea.)
4 We note that Research Corp. Tech. Inc. was decided in 2010, prior to the
Supreme Court's Alice decision of 2014. The Abstract Idea Examples
issued by the United States Patent and Trademark Office on January 27,
2015 ("2015 Examples"), cited on page 8 of the Appeal Brief, similarly
concluded that, under the framework set forth in Alice, the example modeled
after Research Corp. Tech. Inc. is directed to a judicial exception in view of
the iterative mathematical operation of generation a "blue noise mask."
2015 Examples at 8.
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original) ( quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566
U.S. 66, 73 (2012)).
In that regard, the Examiner found that:
There is no indication that the combination of elements [ recited
in claim 1] improves the functioning of a computer or improves
any other technology.
Final Act. 4. The Examiner further found that:
The final step 'generating a final image ( df) of the subsurface
using the model domain data ( dm)" is quite general. It does not
show any tangible result in the real world that [ would] lean
towards significantly more. There is no indication that the
combination of elements improves the functioning of a
computer or improves any other technology.
Ans. 4--5.
According to Appellant, the Examiner erred because:
One or more of [ the claimed steps of ( 1) receiving input
seismic data, (2) transforming the spatially expanded seismic
data, and (3) generating a final image of the subsurface]
"amounts to significantly more than the mathematical
operation" of expanding the N spatial coordinates because these
additional steps tie the mathematical operation of expanding the
N spatial coordinates to the computer's capability of processing
seismic data." These steps, similar to the claims in RCT add
significantly more to the abstract idea [than] computer
implementation.
Br. 10. Appellant asserts that the claims "recite patent-eligible subject
matter based on their similarity to RCT" and specifically because "[ s ]teps
(1) to (3) identified above cannot be said to be merely generic functions
because calculating an image based on model domain data is not a generic
function." Id. at 11. But claim 1, as currently drafted, is not directed to a
technological process for generating a final image of a subsurface. Rather,
"generating a final image ( dr) of the subsurface using the model domain data
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( dm)" as claimed gives the claimed evaluation of seismic data scheme a
particular context for its application. Cf CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366, 1371 (Fed. Cir. 2011) ("The Court[, in
Parker v. Flook, 437 U.S. 584 (1978),] rejected the notion that the recitation
of a practical application for the calculation could alone make the invention
patentable.").
Also, Research Corp. Tech. is distinguishable from Appellant's
claimed process in that the Federal Circuit determined the claim at issue
directed to a halftoning process incorporated algorithms and formulas that
controlled the halftoning and the masks involved in the process. Research
Corp. Tech., 627 F.3d at 869. The Court characterized the invention as
"present[ing] functional and palpable applications in the field of computer
technology." Id. at 868. Appellant's method, on the other hand, is directed
to processing seismic data. In addition, Appellant has not adequately
explained how its steps (1) to (3) improve imaging of a subsurface or
computer functionality itself. The portions of the Specification to which
Appellant directs us for "unexpected superior results" does not attribute
improvements to any of steps (1) to (3) to support Appellant's position that
these steps are significantly more than the abstract idea discussed above.
Br. 7; Spec. ,r,r 62---64. Rather, the Specification generally states that "the
embodiments disclosed herein may be used to reduce noise, regularize data
to bin centers, fill gaps in data acquisition coverage," etc., which does not
suggest that steps (1) to (3) transform the abstract idea into a patent-eligible
invention. Spec. ,r 64.
Therefore, considering all the elements recited in claim 1 both
individually and in an ordered combination, we agree with the Examiner that
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the claim is patent ineligible subject matter because the claimed method
employs mathematical relationships to manipulate existing information to
generate additional information in the form of an image and uses a generic
computer to perform generic computer functions. See Elec. Power Grp.,
LLC, 830 F.3d at 1353 (finding patent-ineligible claims to a method of
detecting events on an interconnected electric power grid in real time that
included the steps of displaying the event analysis results and displaying
concurrent visualization of measurements from data streams); SmartGene,
Inc. v. Advanced Biological Labs., SA, 555 Fed. Appx. 950, 955 (Fed. Cir.
2014) (finding patent-ineligible claims to a method performed by or with a
computer using expert rules for evaluating and selecting from a stored
plurality of different therapeutic treatment regimens).
We have fully considered Appellant's arguments. For the foregoing
reasons, they are unpersuasive as to error in the rejection of claim 1, and
claims 2-20 which stand or fall with it.
The rejection is sustained.
CONCLUSION
Appellant have not shown that the Examiner erred in rejecting
claims 1-20 under 35 U.S.C. § 101 as being directed to non-statutory subject
matter.
DECISION
The decision of the Examiner to reject claims 1-20 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).
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Application 14/050,064
AFFIRMED
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