Ex Parte Sollner

Patent Trials and Appeals Board

Mar 26, 2019

13680287 - (D) (P.T.A.B. Mar. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/680,287 11/19/2012
137491 7590 03/28/2019
OLYMPIC PA TENT WORKS PLLC
P.O. BOX 4277
SEATTLE, WA 98104
FIRST NAMED INVENTOR
Walter Sollner
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.
PGS-l l-23US 1786
EXAMINER
NOLAN, JOHN T
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
03/28/2019 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):
joanne@olympicpatentworks.com
docketing@pgs.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WALTER SOLLNER
Appeal2017-006097
Application 13/680,287
Technology Center 3600
Before JENNIFER D. BAHR, EDWARD A. BROWN, and
ARTHUR M. PESLAK, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner's
decision rejecting claims 1-25. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM.
1 PGS Geophysical AS ("Appellant") is the Applicant and is identified as the
real party in interest. 37 C.F.R. § 1.46; Appeal Br. 1.
Appeal2017-006097
Application 13/680,287
CLAIMED SUBJECT MATTER
Claims 1, 9, and 19 are independent. Illustrative claim 1 reads as
follows:
1. A method for extrapolating a wavefield to be carried
out by a computer system that includes one or more processors
and one or more data-storage devices, the method comprising:
receiving a measured pressure wavefield, a measured
vertical velocity wavefield, and two measured horizontal
velocity wavefields;
decomposing one of the pressure wavefield and the
vertical velocity wavefield into an up-going wavefield and a
down-going wavefield;
calculating components of a slowness vector from the
speed of sound in a fluid, density of the fluid, the measured
pressure wavefield, and the two horizontal velocity wavefields;
and
extrapolating one of the up-going and down-going
wavefields using an extrapolator that depends on the components
of the slowness vector.
Appeal Br. 26 (Claims App.).
REJECTIONS
Appellant seeks review of the following rejections:
Claims 1-25 stand rejected under 35 U.S.C. § 101 as directed to
patent ineligible subject matter.
Claims 1-7, 9-15, and 17-24 stand rejected under 35 U.S.C. § I03(a)
as unpatentable over Sollner '937 (US 2011/0242937 Al, published Oct. 6,
2011) and Sollner '174 (US 2008/0089174 Al, published Apr. 17, 2008).
Claims 8, 16, and 25 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Sollner '937, Sollner '174, and Kluver (US 7,646,672 B2,
issued Jan. 12, 2010).
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ANALYSIS
Patent Ineligible Subject Matter (Claims 1-25)
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. E.g., Alice Corp. v. CLS Bank Int 'l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework,
we first determine what concept the claim is "directed to." See Alice, 573
U.S. at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
in petitioners' application explain the basic concept of hedging, or protecting
against risk.").
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
mental processes ( Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192
( 1981) ); "tanning, dyeing, making waterproof cloth, vulcanizing India
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rubber, smelting ores" (id. at 184 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267---68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that "[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula." Diehr, 450 U.S. at 176; see also id. at 192 ("We
view respondents' claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula."). Having
said that, the Supreme Court also indicated that a claim "seeking patent
protection for that formula in the abstract ... is not accorded the protection
of our patent laws, ... and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment." Id. ( citing Benson and Flook); see, e.g., id. at 187 ("It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.").
If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an 'inventive
concept' sufficient to 'transform' the claimed abstract idea into a patent-
eligible application." Alice, 573 U.S. at 221 (quotation marks omitted). "A
claim that recites an abstract idea must include 'additional features' to
ensure 'that the [claim] is more than a drafting effort designed to
monopolize the [ abstract idea]."' Id. ( ( alteration in the original) quoting
Mayo, 566 U.S. at 77). "[M]erely requir[ing] generic computer
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implementation[] fail[ s] to transform that abstract idea into a patent-eligible
invention." Id.
The PTO recently published revised guidance on the application of
§ 101. USPTO's January 7, 2019 Memorandum, 2019 Revised Patent
Subject Matter Eligibility Guidance ("Memorandum"). Under Step 2A of
that guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or mental
processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a}-(c), (e}-(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
"well-understood, routine, conventional" in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Memorandum.
Here, Appellant argues all of the claims 1-25 together in contesting
the rejection under§ 101. See Appeal Br. 4--14. Accordingly, we decide the
appeal of this rejection based on claim 1, with claims 2-25 standing or
falling with claim 1. See 3 7 C.F .R. § 41.3 7 ( c )( 1 )(iv) (permitting the Board
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to select a single claim to decide the appeal as to a ground of rejection of a
group of claims argued together).
Step 1 - Statutory Category
Claim 1 recites a series of steps, and, therefore, is a process. See
Appeal Br. 26 (Claims App.).
Step 2A, Prong One - Recitation of Judicial Exception
Step 2A of the 2019 Guidance is a two-prong inquiry. In Prong One,
we evaluate whether the claim recites a judicial exception. For abstract
ideas, Prong One represents a change as compared to prior guidance because
we here determine whether the claim recites mathematical concepts, certain
methods of organizing human activity, or mental processes.
The Examiner determines that claim 1 is directed to an abstract idea,
and, particularly, "to a method ... for extrapolating a wavefield that is
accomplished through a series of mathematical operations performed by a
computer." Final Act. 2-3.
Appellant acknowledges that the Examiner's rejection is based on the
abstract idea exception. Appeal Br. 4. Appellant contends, however, that
the Examiner mischaracterizes the claim elements as "'a series of
mathematical operations"' and as "'directed to mathematical manipulation
of data."' Id. Appellant asserts that claim 1 is "described in terms of
mathematical formulas as a concise way of symbolically describing and
representing specific and novel computational operations carried out by a
computer system." Id. Similarly, Appellant states, "claims 1-25 describe a
series of computational operations that are described mathematically to
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generate extrapolated wavefields" (id. at 5-6), and "[ c ]laims 1-25 are
merely a description of the computational operations that make extrapolation
of spatial aliased seismic data possible" (id. at 6). According to Appellant,
"the Examiner's statement regarding mathematical formulas indicates that
the Examiner would declare as an abstract idea any invention described in
terms of mathematical formulas to represent measurable physical quantities,
relationships between physical quantities, and computational operations
peiformed on the physical quantities." Id. at 4 (emphasis added).
As recited in claim 1, the method for extrapolating a wavefield
comprises, in part, "decomposing one of the pressure wavefield and the
vertical velocity wavefield into an up-going wavefield and a down-going
wavefield" ("decomposing limitation"), "calculating components of a
slowness vector from the speed of sound in a fluid, density of the fluid, the
measured pressure wavefield, and the two horizontal velocity wavefields"
("calculating limitation"), and "extrapolating one of the up-going and down-
going wavefields using an extrapolator that depends on the components of
the slowness vector" ("extrapolating limitation"). Id. at 26 (Claims App.
( emphasis added).
We agree with the Examiner that claim 1 recites an abstract idea.
First, Appellant argues that claim 1 recites "mathematical formulas" and "a
series of computational operations that are described mathematically." Id. at
4---6. Under the 2019 Guidance, however, mathematical formulas and
computational operations fall within the "mathematical concepts" grouping.
Accordingly, Appellant acknowledges that claim 1 recites subject matter that
falls within this grouping.
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Second, we determine that the decomposing, calculating, and
extrapolating limitations are specific elements in claim 1 that recite
mathematical relationships and mathematical calculations. The
decomposing limitation recites a mathematical relationship or mathematical
calculation between the pressure wavefield and vertical velocity wavefield
and the up-going and down-going wavefields. This limitation is addressed
at paragraph 37 of Appellant's Specification, which describes the
corresponding mathematical formula (relationship): P = pu + pd, where Pis
the pressure wavefield, pu is the up-going pressure wavefield, and pd is the
down-going pressure wavefield. The calculating limitation recites
mathematically calculating components of a slowness vector "from the
speed of sound in a fluid ... and the two horizontal velocity wavefields."
Hence, this limitation recites a mathematical relationship or mathematical
formula. For example, the components of the slowness vector can be
considered a function of "the speed of sound in a fluid ... and the two
horizontal velocity wavefields." And, the extrapolating limitation recites a
mathematical relationship, mathematical formula, or mathematical
calculation between the up-going or down-going wavefield and the
components of the slowness vector. Under the 2019 Guidance, these
mathematical formulas, mathematical relationships, and mathematical
calculations fall within the "mathematical concepts" grouping. Accordingly,
claim 1 recites this abstract idea.
Furthermore, the decomposing, calculating, and extrapolating
limitations, as drafted, are respective processes that under the broadest
reasonable interpretation cover performance of the limitation in the human
mind.
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The preamble of claim 1 recites a method "to be carried out by a
computer system that includes one or more processors and one or more
data-storage devices." Appeal Br. 26 (Claims App.) (emphasis added).
These generic computer components are not recited in the claim body. Even
if the computer components were given patentable weight, their mere
recitation, especially only in the preamble, does not take the decomposing,
calculating, or extrapolating limitation out of the mental process grouping.
Thus, claim 1 also recites a mental process, which is a second one of the
groupings of abstract ideas set forth in the 2019 Guidance.
Because we conclude claim 1 recites an abstract idea, we proceed to
Prong Two to determine whether the claim is "directed to" the judicial
exception.
Step 2A, Prong Two - Practical Application
If a claim recites a judicial exception, in Prong Two we next
determine whether the recited judicial exception is integrated into a practical
application of that exception by: (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception(s); and
(b) evaluating those additional elements individually and in combination to
determine whether they integrate the exception into a practical application.
If the recited judicial exception is integrated into a practical application, the
claim is not directed to the judicial exception. This evaluation requires an
additional element or a combination of additional elements in the claim to
apply, rely on, or use the judicial exception in a manner that imposes a
meaningful limit on the judicial exception, such that the claim is more than a
drafting effort designed to monopolize the exception. If the recited judicial
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exception is integrated into a practical application, the claim is not directed
to the judicial exception.
Here, apart from the decomposing, calculating, and extrapolating
limitations, the only additional element that is recited in claim 1 is the
limitation "receiving a measured pressure wavefield, a measured vertical
velocity wavefield, and two measured horizontal velocity wavefields"
("receiving limitation"). Appeal Br. 26 (Claims App.) (emphasis added).
The receiving limitation, however, merely recites receiving certain
information or data that can be analyzed. As such, the receiving limitation is
insignificant extra-solution activity to the judicial exception. See
Memorandum at 55 n. 31. Accordingly, this element does not integrate the
judicial exception into a practical application of the exception.
The Examiner determines that all claim elements "are directed to the
mathematical manipulation of data by a general purpose computer and do
not result in an improvement in the functioning of the computer or to another
technology." Final Act. 2. Regarding the recitation of mathematical
formulas in claim 1, Appellant's argument refers to "seismic data" and "the
field of seismic data processing." For example, Appellant asserts, "claims
1-25 describe a series of computational operations that are described
mathematically to generate extrapolated wavefields that are not impacted by
spatial aliasing, which is a clear improvement in the field of seismic data,"
and "[ c ]laims 1-25 improve the existing technical process of seismic data
processing by enabling the wavefields to be extrapolated even when the
seismic data is spatial aliased." Appeal Br. 5---6 ( emphasis added).
Appellant also contends that the Specification explains the technical problem
solved by the claims. Id. at 6 (citing Spec. ,r,r 48-52). According to
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Appellant, "[ c ]laims 1-25 are merely a description of the computational
operations that make extrapolation of spatial aliased seismic data possible,
thus improving an existing technological process of the field of processing
seismic data." Id. ( emphasis added).
But even if the recited method could be used in the field of processing
seismic data, claim 1 does not recite any limitation that even generally links
the use of the "method for extrapolating a wavefield" and the judicial
exception to the field of seismic data or seismic data processing. In fact,
claim 1 recites no particular technological field or field of use. Accordingly,
the language itself of claim 1 does not reflect an improvement in any
particular technical field or technology. See MPEP § 2106.05(a).
We also agree with the Examiner that claim 1 does not pertain to an
improvement to the functioning of the "computer system." See MPEP
§ 2106.05(a). We note that Figure 14 of Appellant's application depicts a
"generalized computer system" for extrapolating wavefields. The
Specification describes, "[t]he internal components of many small, mid-
sized, and large computer systems as well as specialized processor-based
storage systems can be described with respect to this generalized
architecture." See Spec. ,r 56. This paragraph describes central processing
units ("CPUs") 1402-1405, but does not indicate that the CPUs need to be
more than generic devices. Id. This paragraph also describes, "[ c ]omputer-
readable medium 1428 is a data-storage device, including electronic
memory, optical or magnetic disk drive, USB drive, flash memory and other
such data-storage device." Id. Accordingly, the Specification indicates that
the data-storage devices can be generic devices. Absent evidence to the
contrary, we determine that claim 1 merely uses a computer system that
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includes generic components as a tool to perform the abstract idea. See
MPEP § 2106.05(±).
Because we conclude that the additional element in claim 1 fails to
integrate the judicial exception into a practical application, we proceed to
Step 2B to determine whether the claim recites an "inventive concept."
Step 2B - Inventive Concept
As noted, for Step 2B of the analysis, we determine whether the claim
adds a specific limitation beyond the judicial exception that is not "well-
understood, routine, conventional" in the field. See Memorandum.
The Examiner concludes that claim 1 does not include additional
elements that are sufficient to amount to significantly more than the abstract
idea itself, and thus, the additional elements do not transform the abstract
idea into a patent eligible application of the abstract idea. Final Act. 2.
Appellant contends:
By contrast, the methods of claims 1-25 describes
computational operations of extrapolating a wavefield that were
actually derived by the inventor. The inventor did not take
computational operations or mathematical formulas that were
already in existence and implement these operations on a
computer. Claims 1-25 are not an attempt to tie up an already
existing building block of human ingenuity.
Appeal Br. 8. Appellant contends that the calculating and extrapolating
limitations in claim 1 contain inventive concepts. Id. at 9-10. Appellant
acknowledges that "the general concept of calculating a slowness vector is
known" and also "agrees that the general concept of extrapolation is
known," but Appellant contends that the Examiner has not provided
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evidence to show that calculating a slowness vector or extrapolation based
on the slowness vector, as recited in claim 1, is well known. Id. at 14.
Appellant's contentions do not address the pertinent issue; namely,
whether the additional element recited in claim 1 (i.e., the claim element in
addition to the claim elements that recite an abstract idea) is sufficient to
amount to significantly more than the abstract idea itself. This issue is
explained by the Federal Circuit, as follows:
It has been clear since Alice that a claimed invention's use of the
ineligible concept to which it is directed cannot supply the
inventive concept that renders the invention "significantly more"
than that ineligible concept. In Alice, the Supreme Court held
that claims directed to a computer-implemented scheme for
mitigating settlement risks claimed a patent-ineligible abstract
idea. 134 S.Ct. at 2352, 2355-56. Some of the claims at issue
covered computer systems configured to mitigate risks through
various financial transactions. Id. After determining that those
claims were directed to the abstract idea of intermediated
settlement, the Court considered whether the recitation of a
generic computer added "significantly more" to the claims. Id.
at 2357. Critically, the Court did not consider whether it was
well-understood, routine, and conventional to execute the
claimed intermediated settlement method on a generic computer.
Instead, the Court only assessed whether the claim limitations
other than the invention's use of the ineligible concept to which
it was directed were well-understood, routine and conventional.
Id. at 2359---60.
BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1290 (2018) (emphases
added).
Apart from the limitations that recite an abstract idea, the only
additional element in claim 1 is the receiving limitation, which merely
recites insignificant extra-solution activity to the judicial exception. Also,
the method recited in claim 1 merely uses a computer system including
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generic components as a tool to perform the abstract idea. The application
of the abstract idea using generic computer components does not transform
the claim into a patent-eligible application of the abstract idea. Id.
Accordingly, Appellant does not apprise us of error in the Examiner's
conclusion that claim 1 fails to recite an inventive concept that transforms
the claim into a patent-eligible application of the abstract idea. Thus, we
sustain the rejection of claim 1 as not being directed to patent eligible
subject matter under 35 U.S.C. § 101. Claims 2-25 fall with claim 1.
Obviousness over Sollner '9 3 7 and Sollner '17 4
(Claims 1-7, 9-15, and 17-24)
The Examiner finds that Sollner '937 discloses all limitations of
claims 1, 9, and 19, except for the "extrapolating" limitation. Final Act. 3--4
(citing Sollner '937 i-fi-f 7, 18, 27, 32-33, 45, 70-71, 105). The Examiner
relies on Sollner '17 4 as teaching the "extrapolating" limitation. Id. at 4
(citing Sollner '174 ,r,r 48-57). For claims 1 and 9, the Examiner concludes
that it would have been obvious to modify the method of Sollner '937 "with
the step of formulating an extrapolator based on the components of the
slowness vector once its components are known for the purpose of
generating an up-going or down-[going] wavefield to more reliably construct
the source wave." Id. For claim 19, the Examiner concludes that this
modification would have been obvious "for the purpose of avoiding spatial
aliasing disruptions in the extrapolated wavefield to more reliably
reconstruct the source wave." Id. at 5.
Appellant contends that Sollner '17 4 fails to disclose the
"extrapolating" limitation recited in claims 1, 9, and 19. Appeal Br. 16.
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Paragraph 48 of Sollner '17 4 relied on by the Examiner discloses an
expression for the amplitude scaling function in Equation ( 5), and explains
that the amplitude scaling function marked with a "double tilde" in this
equation designates transformation into the plane-wave domain. Sollner
'17 4 ,r 48. Equation ( 6) gives a relationship between "vertical slowness"
and "the horizontal slownesses in two orthogonal horizontal directions." Id.
Appellant contends that paragraphs 48-51 of Sollner '17 4 fail to teach or
suggest extrapolating an up-going or down-going wavefield. Appeal Br. 18.
We agree with Appellant that these paragraphs do not describe extrapolating.
Appellant also contends that, in Sollner '174, the scale factor in the
numerator of Equations (9) and (10) (see Sollner '17 4 ,r 51) corresponds to
the same scale factor given in Equation (3) (see id. ,r 47), which scale factor
does not depend on the slowness vector. Appeal Br. 18. Appellant contends
that in regard to Equations (9) and (10), Sollner '174 provides no teaching or
suggestion of extrapolating the up-going and down-going pressure
wavefields, much less of using an extrapolator that depends on components
of the slowness vector. Id.
Appellant acknowledges that Sollner '17 4 teaches "extrapolation;
namely, "extrapolating hydrophone and geophone wavefields with additive
noise components." Appeal Br. 18 ( citing Sollner '174 ,r,r 55-59).
Appellant contends that paragraphs 56 and 57 of Sollner '17 4 describe
extrapolating up-going and down-going pressure wavefields, as expressed in
Equations (16}-(19). Id. at 19. Appellant contends that the extrapolation
operators in these equations depend on the vertical wavenumber kz. Id.
Appellant also acknowledges that Sollner '17 4 discloses slowness vector
components in paragraph 48 (see Eq. (6)), but contends that Sollner '174
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does not describe how these components are used, much less describe
performing extrapolation in which the extrapolation operators depend on
slowness vectors. Id.
The Examiner responds that Sollner '17 4 teaches that the slowness
vector is a component of the amplitude scaling function ( Ans. 13 ( citing
Sollner '174 ,r 48, Eq. 5, 6)), and "[t]he amplitude scaling function used [sic]
in extrapolation step" (id. (citing Sollner '174 ,r,r 56-58)). The Examiner
submits that any of Equations (16}-(21) in paragraphs 56-58 can be
considered an "extrapolator," and "[ e Jach [equation] contains an expression
for amplitude scaling factor (w)." Id. The Examiner states, "[t]he amplitude
scaling factor is a function of [the] slowness vector. Therefore extrapolating
one of the up-going and down-going wavefields using an extrapolator that
depends on the components of the slowness vector, as claimed in claim 1, is
taught by [Sollner '17 4]."
In reply, Appellant acknowledges that Equations (5) and (6) in Sollner
'174 teach an amplitude scaling function expressed in terms of slowness
vector components. Reply Br. 6. However, Appellant contends that the
amplitude scaling factor of equations ( 5) and ( 6) is different from, and has a
different symbol than, the amplitude scaling factor given in Equations (3)
and (4). Id. Particularly, the amplitude scaling factor of Equations (5) and
( 6) has a double tilde, whereas the amplitude scaling factor in Equations (3)
and (4) has a single tilde (i.e., w). Id. Appellant submits that the amplitude
scaling function of Equations (5) and (6) has a different symbol to
distinguish it from the amplitude scaling factor that depends on the
wavenumbers given in Equations (3). Id. Also, Appellant contends,
Equations ( 16}-(2 l) all depend on the amplitude scaling factor given in
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Equations (3) and ( 4), which does not depend on the slowness vector
components, rather than on the amplitude scaling factor given in Equations
(5) and (6) expressed in terms of slowness vector components. Id.
Appellant's contentions are persuasive. Sollner '174 describes that
the amplitude scaling function given in Equations (3) and (4) is in the
"frequency-wavenumber domain," whereas Sollner '174 describes that the
amplitude scaling function in Equation (5) is in the "plane-wave domain."
See Sollner '17 4 ,r,r 4 7--48. In view of this difference, the Examiner has not
established by a preponderance of the evidence that Sollner '174 teaches the
extrapolating limitation recited in claims 1, 9, and 19, which requires "using
an extrapolator that depends on the components of the slowness vector." As
the underlying factual basis for the rejection stated by the Examiner is not
supported by sufficient evidence, the Examiner has not established an
adequate reason with rational underpinnings to modify Sollner '937 in view
of Sollner '174 to result in the subject matter recited in these claims. See In
re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (holding that "[t]he legal
conclusion of obviousness must be supported by facts. Where the legal
conclusion is not supported by facts it cannot stand."). Therefore, we do not
sustain the rejection of claims 1, 9, and 19, and of claims 2-7, 10-15, 17, 18,
and 20-24 depending therefrom, as unpatentable over Sollner '937 and
Sollner '174.
Obviousness over Sollner '937, Sollner '174, and Kluver
(Claims 8, 16, and 25)
The Examiners' reliance on Kluver in rejecting dependent claims 8,
16, and 25 fails to cure the deficiencies in the rejection of parent claim 1, 9,
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or 19. Final Act. 9. Accordingly, we do not sustain the rejection of claims
8, 16, and 25 as unpatentable over Sollner '937, Sollner '174, and Kluver for
the same reasons as for claims 1, 9, and 19.
DECISION
The rejection of claims 1-25 under 35 U.S.C. § 101 as directed to
patent ineligible subject matter is AFFIRMED.
The rejection of claims 1-7, 9-15, and 17-24 under 35 U.S.C.
§ 103(a) as unpatentable over Sollner '937 and Sollner '174 is REVERSED.
The rejection of claims 8, 16, and 25 under 35 U.S.C. § 103(a) as
unpatentable over Sollner '937, Sollner '174, and Kluver is REVERSED.
No time period for taking any subsequent action in connection with
this appeal may be extended according to 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
18