Ex Parte Tenghamn et al

Patent Trial and Appeal Board

Aug 11, 2016

11786115 (P.T.A.B. Aug. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
111786, 115
136766 7590
MHKKG(PGS)
P.O. BOX 398
FILING DATE
04/11/2007
08/15/2016
AUSTIN, TX 78767-0398
FIRST NAMED INVENTOR
Stig Rune Lennart Tenghamn
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-06-25US 8354
EXAMINER
BREIER, KRYSTINE E
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
08/15/2016 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):
patent_docketing@intprop.com
ptomhkkg@gmail.com
docketing@pgs.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STIG RUNE LENNART TENGHAMN and
CLAES NICOLAI BORRESEN
Appeal2014-008412
Application 11/786, 115
Technology Center 3600
Before JENNIFER D. BAHR, LINDA E. HORNER, and
BRANDON J. WARNER, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Stig Rune Lennart Tenghanm and Claes Nicolai Borresen
("Appellants") 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-18, which are all the pending claims. See
Appeal Br. 7. We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
According to Appellants, the real party in interest is PGS Geophysical
AS. Appeal Br. 3.
Appeal2014-008412
Application 11/786, 115
CLAIMED SUBJECT MATTER
Appellants' disclosed invention relates to "the field of marine seismic
surveying." Spec. i-f 1. Claims 1 and 9 are independent. Claim 1,
reproduced below with emphasis added, is illustrative of the subject matter
on appeal.
1. A system for marine seismic surveying, comprising:
a pressure sensor and a particle motion sensor collocated
on a marine seismic streamer and configured to output pressure
and particle motion signals, respectively, in response to
receiving seismic reflections, wherein the particle motion
sensor has a resonance frequency above 20 Hz; and
a computer system configured to process digitized
versions of the pressure and particle motion signals.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
McNeel us 4,144,520 Mar. 13, 1979
Fix us 4,499,565 Feb. 12, 1985
Staron us 4,811,814 Mar. 14, 1989
Kim US 2003/0031091 Al Feb. 13,2003
Vaage US 2005/0195686 Al Sept. 8, 2005
Roberts son US 7,492,665 B2 Feb. 17,2009
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REJECTIONS
The following rejections are before us for review: 2
I. Claims 1--4, 7-12, and 15-18 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Vaage, Fix, and
Robertsson. Final Act. 7-9.
II. Claims 5, 6, 13, and 14 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Vaage, Fix, Robertsson, and
McNeel. Id. at 9-10.
ANALYSIS
Rejection I - Claims 1-4, 7-12, and 15-18 as unpatentable over
Vaage, Fix, and Robertsson
Appellants present arguments against the rejection of independent
claims 1 and 9 together (see Appeal Br. 19-22; Reply Br. 2-5), and present
additional argument against the rejection of dependent claim 17 (see Appeal
Br. 22). We select independent claim 1 as representative of the issues that
Appellants present in the appeal of this rejection, with claims 2--4, 7-12,
15, 16, and 18 standing or falling therewith. See 37 C.F.R. § 41.37(c)(l)(iv).
We address the additional arguments directed to dependent claim 17 infra.
2 Wenotethattherejectionofclaims 1--4, 7-12, 15, and 16under
35 U.S.C. § 103(a) as being unpatentable over Vaage, Kim, and Robertsson,
the rejection of claims 5, 6, 13, 14, and 18 under 35 U.S.C. § 103(a) as being
unpatentable over Vaage, Kim, Robertsson, and Staron, and the rejection of
claim 17 under 35 U.S.C. § 103(a) as being unpatentable over Vaage, Kim,
Robertsson, and Fix have been expressly withdrawn by the Examiner and
thus are not before us for review as part of the instant appeal. Ans. 2.
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Claims 1--4. 7-12. 15. 16. and 18
The Examiner determined that a combination of teachings from
Vaage, Fix, and Robertsson renders obvious the limitations of independent
claim 1. Final Act. 7-8. In relevant part, the Examiner concluded that it
would have been obvious to one having ordinary skill in the art at the time of
the invention to modify the seismic streamer of Vaage to use the particle
motion sensor having a resonance frequency above 20 Hz of Fix "since such
a modification would have allowed for higher resolution surveying with less
attenuation in the higher frequency ranges." Id.
Appellants argue that it would not have been obvious to combine
Vaage and Fix because "[t]here is no mention whatsoever in Fix of
applicability to seismic streamers or to any other marine seismic system."
Appeal Br. 20. Appellants assert that "there is no disclosure whatsoever in
Fix about using a particle motion sensor having a resonance frequency above
20 Hz in a marine seismic streamer application," and that "[a]ll of the
examples provided by Fix are land-based applications." Reply Br. 3.
We are not persuaded by Appellants' argument regarding Fix because
it attacks the reference individually, where the rejection is predicated upon a
combination of prior art disclosures. See In re Merck & Co., 800 F.2d 1091,
1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)).
Here, the Examiner found that Vaage discloses a system for marine seismic
surveying including a pressure sensor and a particle motion sensor (or
geophone) collocated on a marine seismic streamer (Final Act. 7 (citing
Vaage i-fi-137, 38)), but that Vaage "does not disclose [that] the particle
motion sensor has a resonance frequency above 20 Hz" (id.). The Examiner
relied on Fix for teaching "[a] particle motion sensor ha[ ving] a resonance
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Application 11/786, 115
frequency above 20 Hz." Id. (citing Fix, col. 2, 11. 44--45; col. 2, 1. 64-
col. 3, 1. 1). Thus, the rejection is based on the combined teachings ofVaage
and Fix. Appellants' allegation of differences or shortcomings of Fix alone
is not responsive to the rejection as articulated by the Examiner and
therefore does not apprise us of error. Further, we are not persuaded by
Appellants' argument because we agree with the Examiner's reading of Fix
to teach explicitly the applicability of the disclosed particle motion sensor to
marine geophysical exploration. Ans. 3; Fix, col. 4, 11. 17-19.
As to the Examiner's proposed combination of teachings from Vaage
and Fix, Appellants argue that, "even though Fix discloses a particle motion
sensor with a resonant frequency above 10 Hz, there would have been no
motivation to combine such a sensor with Vaage's teachings, and it would
not have been obvious to do so." Appeal Br. 21. In particular, Appellants
point to the declaration of Dr. Frederick J. Barr, filed March 19, 2013 (the
"Barr Declaration"), and assert that, "[a]s Dr. Barr stated, 'combining [Fix's]
particle motion sensors with Vaage would have been rejected by a person
having ordinary skill in the art, based on violating the general design
principle that it is desirable to provide a relatively flat frequency response in
the range above 10 Hz."' Id. (quoting Barr Declaration i-f 18). Appellants
also cite to a publication by Zhang (Yimeng Zhang et al., Estimating and
recovering the low-frequency signals in geophone data, Expanded Abstracts,
2012 SEG Technical Convention), and assert that Zhang provides evidence
that "10 Hz geophones were typical in marine seismic streamers, and that
even lower-frequency geophones were considered desirable in spite of their
increased cost." Reply Br. 4 (emphasis omitted); see Appeal Br. 22.
According to Appellants, the Barr Declaration and Zhang evince that it
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would not have been obvious to combine the teachings of Vaage and Fix as
proposed by the Examiner. Appeal Br. 22; Reply Br. 5.
Appellants' argument is not persuasive. To the extent that
Appellants' evidence demonstrates that 10 Hz and lower frequency
geophones were typical or desirable in marine seismic systems, such a fact
does not establish that a person having ordinary skill in the art would not
have reason to consider use of a higher frequency geophone. In this case,
the Examiner articulated a reason based on rational underpinnings for
modifying Vaage's seismic streamer to use Fix's geophone having a
resonance frequency above 20 Hz (namely, that "such a modification would
have allowed for higher resolution surveying with less attenuation in the
higher frequency ranges"). Final Act. 7-8; see KSR Int 'l Co. v. Teleflex Inc.,
550 U.S. 398, 418 (2007). Appellants' argument does not specifically
address or identify fault in this reasoning articulated by the Examiner in
support of the conclusion of obviousness, and thus does not apprise us of
error in the rejection as presented. Moreover, we note that where a claim
recites "a structure already known in the prior art that is altered by the mere
substitution of one element [(Fix's particle motion sensor with a resonance
frequency above 20 Hz)] for another [(Vaage's particle motion sensor with
an unspecified resonance frequency)] known in the field, the combination
must do more than yield a predictable result." KSR Int'! Co., 550 U.S. at
416 (internal citation omitted). Appellants do not provide any factual
evidence or persuasive technical reasoning to explain why the combination
as applied in the rejection would yield anything other than a result that
would have been predictable to one of ordinary skill in the art.
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Appellants also argue that "the problem that the Fix reference was
attempting to solve is simply irrelevant in the context of Vaage." Appeal
Br. 21. In particular, Appellants point to the Barr Declaration as stating that
"Fix is concerned ... with improvements to instantaneous dynamic range
that were necessary due to Fix's use of older technology analog-to-digital
converters, as were commonly in use at the time." Id. (quoting Barr
Declaration i-f 19). According to the Barr Declaration, "the problem that Fix
attempted to solve simply does not apply to systems using more modem
analog-to-digital technology." Barr Declaration i-f 19. The Examiner
responds that, "[g]iven that the object of Fix's invention is to 'enhanc[e] the
signal-to-noise ratio of broad-band signals in reflection seismic operation'
and [improve the] 'frequency-dependent amplitude shaping of broad-band
seismic signals' (Col[.] 1, lines 61-66), ... these problems are still very
relevant in modem systems." Ans. 3--4. According to the Examiner, "one of
the primary goals of any seismic processing is to improve the signal-to-noise
ratio of the seismic signals in order to improve the accuracy of the final
imaged results." Id. at 4.
We are not persuaded by Appellants' argument. We note that the
reason to modify a reference may often prompt a person of ordinary skill in
the art to do what the inventor has done, but for a different purpose or to
solve a different problem; it is not necessary that the prior art suggest the
modification to achieve the same advantage or result discovered by an
applicant. See, e.g., In re Kahn, 441 F.3d 977, 987 (Fed. Cir. 2006); see also
KSR Int'! Co., 550 U.S. at 421 ("A person of ordinary skill is also a person
of ordinary creativity, not an automaton."). Here, the response provided by
the Examiner explaining why Fix's objective of improving signal-to-noise
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ratio would be relevant to modem seismic systems is reasonable, and
Appellants do not offer any factual evidence or persuasive technical
reasoning to refute the Examiner's position. Furthermore, the Barr
Declaration relied on by Appellants acknowledges that Fix is concerned with
improving dynamic range. Barr Declaration i-f 19. In this regard, we note
that Fix's disclosure is consistent with Appellants' Specification, which
states that "[t]he frequency response 11 of the geophone according to the
invention, shown in FIG. 1, is reduced in the range of 1-10 Hz (indicated at
numeral 12) by 20-68dB, which will have a beneficial effect on available
dynamic range and harmonic distortion, as compared to a standard
geophone." Spec. i-f 27 (boldface omitted; emphasis added).
After careful consideration of all the evidence, Appellants' arguments
do not apprise us of error in the Examiner's findings or reasoning for the
conclusion of obviousness with respect to claim 1. Accordingly, we sustain
the rejection of claim 1, and of claims 2--4, 7-12, 15, 16, and 18, falling
therewith, under 35 U.S.C. § 103(a) as being unpatentable over Vaage, Fix,
and Robertsson.
Claim 17
With respect to the rejection of dependent claim 17, Appellants
initially refer to the argument, discussed supra, that "the combination of
Vaage with Fix is improper." Appeal Br. 18. For the same reasons,
Appellants' argument directed to claim 1 also does not apprise us of error in
the Examiner's findings or conclusion of obviousness for this claim.
Appellants additionally argue that Fix's particle motion sensor does
not attenuate harmonics of noise below 10 Hz, as required by claim 1 7.
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Appeal Br. 18-19, 22. In particular, Appellants assert that the portion of Fix
cited by the Examiner to address this limitation "describes ... only that
geophones of a particular resonance frequency will attenuate signals that are
far away from that resonance frequency." Id. at 19 (citing Fix, col 2, 1. 64-
col. 3, 1. 4); see also Final Act. 9 (finding that "Fix teaches the particle
motion sensor is configured to attenuate harmonics below 10 Hz (Col[.] 2,
lines 66-67)").
We are not persuaded by Appellants' argument. As explained by the
Examiner, "Fix teaches the 50 Hz [geophone] array 'exclud[es] frequencies
below 50 Hz,"' and "[ t ]his means that all incoming signals, including
harmonics of noise, will be attenuated, if not eliminated entirely, from the
recorded data." Ans. 4 (quoting Fix, col. 2, 11. 66-67). Appellants do not
explain-nor do we discern-why a particle motion sensor that excludes
frequencies below 50 Hz would not attenuate noise harmonics below 10 Hz.
To the extent that Appellants' argument suggests that Fix does not meet the
claim because Fix's particle motion sensor also attenuates some frequencies
greater than or equal to 10 Hz (e.g., frequencies in the range of 10---50 Hz),
we note that the claim does not require that only harmonics of noise below
10 Hz are attenuated. Therefore, Appellants' argument does not apprise us
of error in the Examiner's finding that Fix discloses a particle motion sensor
that attenuates harmonics of noise below 10 Hz, which is supported by a
preponderance of the evidence.
Accordingly, we sustain the rejection of claim 17 under 35 U.S.C.
§ 103(a) as being unpatentable over Vaage, Fix, and Robertsson.
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Rejection II - Claims 5, 6, 13, and 14 as unpatentable over
Vaage, Fix, Robertsson, and McNeel
With respect to the rejection of claims 5, 6, 13, and 14, Appellants do
not set forth any additional substantive arguments separate from the
arguments discussed supra; instead, Appellants expressly state that "[t]hese
claims are not argued separately, and so McNeel will not be discussed
further." Appeal Br. 19; see Reply Br. 2. Accordingly, for the same reasons
that Appellants' arguments do not apprise us of error in Rejection I,
Appellants also do not apprise us of error in Rejection II. We likewise
sustain the rejection of claims 5, 6, 13, and 14 under 35 U.S.C. § 103(a) as
being unpatentable over Vaage, Fix, Robertsson, and McNeel.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1--4, 7-12, and
15-18 under 35 U.S.C. § 103(a) as being unpatentable over Vaage, Fix, and
Robertsson.
We AFFIRM the Examiner's decision rejecting claims 5, 6, 13, and
14 under 35 U.S.C. § 103(a) as being unpatentable over Vaage, Fix,
Robertsson, and McNeel.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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