Ex Parte TEYSSANDIER et alDownload PDFPatent Trial and Appeal BoardAug 21, 201813415259 (P.T.A.B. Aug. 21, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/415,259 03/08/2012 Benoit TEYSSANDIER 11171 7590 08/23/2018 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. 0336-025-4/100172 3444 EXAMINER MURPHY, DANIELL ART UNIT PAPER NUMBER 3645 NOTIFICATION DATE DELIVERY MODE 08/23/2018 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): Mailroom@ppblaw.com eofficeaction@appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BENOIT TEYSSANDIER and LAURENT RUET Appeal2017-001539 Application 13/415,259 Technology Center 3600 Before CHARLES N. GREENHUT, JILL D. HILL, and JEFFREY A. STEPHENS, Administrative Patent Judges. STEPHENS, Administrative Patent Judge. DECISION ON APPEAL 1 STATEMENT OF THE CASE Appellants2 seek our review under 35 U.S.C. § 134(a) from the Examiner's Final Office Action ("Final Act.") rejecting claims 1-20, which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b ). 1 Application No. 13/687,084 ("the '084 Application"), a continuation of the present application, was the subject of a related decision in Appeal 2014- 009018 (PTAB Sept. 13, 2016) (hereinafter "Related Appeal"). 2 The real party in interest is identified as CGGVERITAS SERVICES SA. Appeal Br. 2. Appeal2017-001539 Application 13/415,259 We reverse. Claimed Subject Matter Claims 1, 9, 16, and 18-20 are independent. Claim 1, reproduced below, illustrates the claimed subject matter. 1. A method for determining a driving signal of a vibro- acoustic source element that is configured to generate acoustic waves in water, the method comprising: estimating at least one physical constraint of the vibro- acoustic source element; modeling a ghost function determined by a surface of the water; setting a target energy spectrum density to be emitted by the vibro-acoustic source element during the driving signal; and determining the driving signal in a controller based on the at least one physical constraint, the ghost function, and the target energy spectrum density. Rejections I. Claims 1-5, 7-12, and 14--17 stand provisionally rejected on the ground of nonstatutory obviousness-type double patenting over claims in the '084 Application. Final Act. 4--5. II. Claims 18-20 stand provisionally rejected on the ground of nonstatutory obviousness-type double patenting over additional claims in the '084 Application. Final Act. 5-7. III. Claims 1, 6-8, 18, and 19 stand rejected under pre-AIA 35 U.S.C. § I03(a) as unpatentable over Tenghamn (US 2011/0317515 Al, published Dec. 29, 2011) and Smith (US 6,942,059 B2, issued Sept. 13, 2005). Final Act. 7-11. 2 Appeal2017-001539 Application 13/415,259 IV. Claims 2--4, 16, 17, and 20 stand rejected under pre-AIA 35 U.S.C. § I03(a) as unpatentable over Tenghamn, Smith, and Osborne (US 4,272,226, issued June 9, 1981). Final Act. 11-17. V. Claim 5 stands rejected under pre-AIA 35 U.S.C. § I03(a) as unpatentable over Tenghamn, Smith, Osborne, and Wilmanowicz (US 8,271,173 B2, issued Sept. 18, 2012). Final Act. 17-18. VI. Claims 9-11 and 13-15 stand rejected under pre-AIA 35 U.S.C. § I03(a) as unpatentable over Tenghamn, Smith, and Jeffryes (US 2012/0188845 Al, published July 26, 2012). Final Act. 18-24. VII. Claim 12 stands rejected under pre-AIA 35 U.S.C. § I03(a) as unpatentable over Tenghamn, Smith, Jeffryes, and Wilmanowicz. Final Act. 24--25. VIII. Claim 18 stands rejected under pre-AIA 35 U.S.C. § I03(a) as unpatentable over Tenghamn and Osborne. Final Act. 25-27. DISCUSSION Rejections III-VIII (35 U.S.C. § 103(a)) The dispositive issue presented on appeal is whether Tenghamn teaches determining or calculating a driving signal based on a physical constraint and a target energy spectrum density, as recited in independent claims 1, 9, 16, and 18-20. Appellants argue "the focus of the disclosure in T enghamn is on a hardware solution and not on an operational solution as in the claimed invention." Appeal Br. 14. Appellants contend the asserted teachings of Tenghamn are not related to a driving signal, and that Tenghamn achieves the desired improvements through a hardware modification. Id. at 15-16. 3 Appeal2017-001539 Application 13/415,259 As in the Related Appeal, we interpret "determining" as recited in claims 1, 18, and 19 the same as "calculate" in claims 9, 16, and 20. See Decision in Appeal 2014-009018 (PTAB Sept. 13, 2016), at 4. In claim 1, for example, the physical constraint( s ), ghost function, and target energy spectrum density are inputs used by the controller to calculate the driving signal. As explained in more detail in the Related Appeal, this interpretation is based on the language of the claim as a whole and the Specification, including paragraphs 10, 56, and 59. Id. at 4--5. Although the Examiner does not provide an express interpretation for "determining" or "calculate" in this case, we agree with Appellants that Tenghamn does not teach determining or calculating a driving signal as recited in the claims, for the same reasons explained in the Related Appeal. See Reply Br. 2. The Examiner finds Tenghamn teaches determining the driving signal in a controller based on the at least one physical constraint and the target energy spectrum density, citing paragraph 38 and portions of paragraph 42 of Tenghamn. Final Act. 8. Tenghamn's paragraph 38 describes tuning the system using added masses to control the second resonance frequency of the system, "thereby improving the amplitude of the acoustic vibrator for seismic operations." Tenghamn para. 38. Thus, the physical constraints of the system are adjusted to alter properties of what claim 1 refers to as the "acoustic waves" that are generated in water by the vibro-acoustic source element, but paragraph 38 does not mention the driving signal that causes Tenghamn's flextensional shell to produce these waves. Paragraph 42 of Tenghamn mentions the driving signal in the final sentence, referring to devices "for actuating the acoustic vibrators Vl-V5, 4 Appeal2017-001539 Application 13/415,259 for example, electrical controller with swept frequency alternating current or other signal." Tenghamn para. 42. Here, however, there is no mention of determining the signal based on physical constraints or a target energy spectrum. Rather, Tenghamn appears to use a generic "swept frequency" or other unspecified signal and teaches altering the physical properties of the system in order for such a signal to generate acoustic waves within particular frequency ranges. We find no indication in these passages of Tenghamn that either the physical constraints or the target energy spectrum are used in determining or calculating in the controller the particular driving signal to use. The Examiner finds Tenghamn is concerned with driving signal generation because "Tenghamn discusses at some length the mechanics and electromechanics involved in actuating the source (paragraphs [0024], [0026], [0033], and [0036], at least), including analysis of the frequency behavior (essentially, the expected frequency response, see FIG. 3 and paragraph [0019])." Ans. 3 (citing also Tenghamn para. 25 and equations 5- 7). Again, however, the cited passages describe features of the system that affect the waves generated by the vibro-acoustic source elements in Tenghamn, but do not address how the driving signal that drives the source elements are determined/ calculated. The Examiner also states that "Appellant appears to deny that features like piston size, radiation impedance, spring constant, and masses that contribute to frequency response and the spectrum of energy output are physical constraints." Ans. 4. Although we agree with the Examiner that these are physical constraints of Tenghamn' s system, the Examiner has not identified where Tenghamn indicates that the driving signal ( e.g., swept 5 Appeal2017-001539 Application 13/415,259 frequency signal generated in the controller) is determined based on these physical constraints. We also agree with Appellants that the Examiner has not shown the other references relied on in the rejection cure the deficiencies in Tenghamn discussed above. Appeal Br. 16-23. The Examiner relies on Tenghamn for teaching determining the driving signal in a controller based on the at least one physical constraint and target energy spectrum density. E.g., Final Act. 8. We do not understand the Examiner's rejection to rely on Smith's teachings regarding a ghost function, for example, to indicate one of skill in the art would have modified Tenghamn such that the physical constraints and target energy spectrum density would be used to calculate the driving signal. Although in the Answer the Examiner states that "it would be reasonable for an ordinarily skilled artisan to apply further engineering considerations (e.g., how to drive the hardware with electric driving signals) that also contribute to achievement of efficient energy transmission," such a statement does not sufficiently explain why one of skill in the art would have made the precise modifications necessary to yield the subject matter claimed. Ans. 5. 3 In view of the foregoing, on this record we do not sustain the rejections of independent claims 1, 9, 16, and 18-20 as unpatentable under 35 U.S.C. § 103(a), and we do not sustain the rejection of claims depending therefrom. Accordingly, we do not sustain the Examiner's rejection of claims 1-20 under 35 U.S.C. § 103(a). 3 Although the Board is authorized to enter a new ground of rejection under 37 C.F.R. § 4I.50(b), no inference should be drawn when the Board elects not to do so. See Manual of Patent Examining Procedure (MPEP) § 1213.02. 6 Appeal2017-001539 Application 13/415,259 Rejections 1-11 (Double Patenting) At the time of Appellants' briefing the '084 application was co- pending. Although Appellants had the option to do so, Appellants elected not to seek review of the double-patenting rejections under 37 C.F.R. § 4I.37(c)(l)(iv) for purposes of this appeal. App. Br. 23-24; see MPEP § 804(I)(B) ("The merits of such a provisional rejection can be addressed by both the applicant and the examiner without waiting for the first patent to issue." ( emphasis added)). We note that Application No. 13/687,084 has now matured into U.S. Patent 9,618,641, issued April 11, 2017, and that no amendments to the claims of the '084 application appear to have been entered between the Examiner's Final Action of October 26, 2015, from which the present appeal was taken, and the issuance of U.S. Patent 9,618,641. In the circumstances of this case, we decline to reach the provisional double patenting rejections, and we leave it to the Examiner to take any action that may be necessary under MPEP § 804(I)(B)(l )(b )(iv). DECISION We reverse the Examiner's rejections of claims 1-20 under 35 U.S.C. § 103(a). We do not reach the merits of the double-patenting rejections. REVERSED 7 Copy with citationCopy as parenthetical citation