Ex Parte TRICKETT

Patent Trial and Appeal Board

Aug 23, 2018

14208876 (P.T.A.B. Aug. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/208,876 03/13/2014 Stewart TRICKETT
11171 7590 08/27/2018
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.
0336-271-2/100493 1026
EXAMINER
LIANG, LEONARD S
ART UNIT PAPER NUMBER
2862
NOTIFICATION DATE DELIVERY MODE
08/27/2018 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 STEWART TRICKETT
Appeal2018-002084
Application 14/208,87 61
Technology Center 2800
Before KAREN M. HASTINGS, JAMES C. HOUSEL, and
JEFFREY R. SNAY, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's decision rejecting claims 1-20.
We have jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellant identifies the real party in interest as CGG SERVICES SA.
(Appeal Br. 2).
Appeal2018-002084
Application 14/208,876
Independent claim 1 below is illustrative of the subject matter on
appeal ( emphases added):
1. A method of interpolating seismic data indicative of a
surveyed geographical area of interest, comprising:
transmitting seismic waves with seismic sources;
recording seismic data with seismic receivers;
determining that one or more traces of the seismic data is
missing or is corrupt or is noisy;
interpolating with a computing device the seismic data
using a pairwise Hankel tensor;
performing tensor completion for the pairwise Hankel
tensor to obtain interpolated seismic data;
combining the seismic data with the interpolated seismic
data to obtain a set of trace data of the geographical area of
interest; and
generating an image of the surveyed geographical area of
interest based on the set of trace data.
The Examiner maintains the following rejections2 :
(a) claims 1-20 under 35 U.S.C. § 101 as being directed to non-
statutory subject matter; and
(b) claims 1-20 under 35 U.S.C. § 103 as being unpatentable over
Applicant's Admitted Prior Art ("AAPA") in view of Baumstein et al. (US
2010/0212909 Al, published Aug. 26, 2010) ("Baumstein").
2 We refer to the Specification, filed Mar. 13, 2014 ("Spec."); the Final
Office Action notice emailed Jan. 26, 2017 ("Final Act."), Appeal Brief,
filed June 14, 2017 ("Appeal Br."); the Examiner's Answer, notice emailed
Oct. 20, 2017 ("Ans."), and the Reply Brief filed Dec. 7, 2017 ("Reply Br.").
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Application 14/208,876
ANALYSIS
§ 1 OJ Rejection
Claims 1-20 are rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter.
The first step in analyzing whether a claim is directed to patent-
eligible subject matter is determining whether the claim is directed to one of
the patent-ineligible concepts: laws of nature, natural phenomena, and
abstract ideas (Alice Corp. Pty. Ltd. v. CLS Bank Int'!, 134 S. Ct. 2347, 2355
(2014) (citing Mayo Collaborative Services v. Prometheus Labs., Inc., 566
U.S. 66 (2012))). If a claim is directed to a patent-ineligible concept, the
second step in the analysis is to determine whether additional elements of
the claim, "both individually and 'as an ordered combination,"' "'transform
the nature of the claim' into a patent-eligible application" (Alice, 134 S. Ct.
at 2355 (quoting Mayo, 566 U.S. at 79, 78)). Thus, 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. at
2357 (alteration in original) (quoting Mayo, 566 U.S. at 77)).
Here, the Examiner finds claim 1 is directed to the abstract ideas of
collecting information, analyzing the information, and displaying certain
results, similar to the claims of Electric Power Group, LLC v. Alstom S.A.,
830 F.3d 1350 (Fed. Cir. 2016) (Final Act. 3-6). The Examiner also finds
claim 1 is directed to the abstract idea of organizing information through
mathematical correlations, as in Digitech Image Tech., LLC. v. Electronics
for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014) (id. at 3, 5). The
Examiner finds the additional claim elements, when considered individually
and as an ordered combination, do not amount to significantly more because
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Application 14/208,876
they are recited at a high level of generality and perform generic functions
without an indication that the combination of elements improves a
technology or improves the functioning of a computer (id. at 3--4, 6-7). The
Examiner makes similar findings for claims 2-20 (id. at 7-9).
Appellant asserts claim 1 is not directed to an abstract idea because
claim 1 differs from the claims of Electric Power Group and Digitech
(Appeal Br. 5---6; Reply Br. 3). Specifically, Appellant contends the claims
of Electric Power Group were directed to the real-time monitoring of a
known underlying physical reality (i.e., an electric grid) while claim 1 seeks
to uncover an underlying physical reality through in-depth elaborate
processing of the seismic data (Appeal Br. 6). Appellant argues the step of
transmitting seismic waves does not correspond to collecting information,
the step of determining one or more traces of seismic data is missing,
corrupt, or noisy, as recited in claim 1, is not analyzing information, as in
Electric Power Group, and the step of combining the seismic data with
interpolated seismic data does not correspond to collecting and analyzing
information because Electric Power Group did not combine data with
expected or new data from an interpolation (id. at 6-7).
Appellant further argues Digitech differs from claim 1 because the
former refers to existing data while the latter generates new data (id. at 7).
Appellant asserts the claims are similar to the patentable claims of In re
Abele, 684 F.2d 902 (CCPA 1982), which regarded an improvement to the
CAT scan process, because Appellant's invention also regards a computer-
aided method in which reflected and refracted signals are attenuated while
traveling through an environment (Reply Br. 3).
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Appellant's arguments are unpersuasive. We agree with the Examiner
that claim 1 is similar to the claims of Electric Power Group. The claims of
Electric Power Group were directed to systems and methods for performing
real-time performance monitoring of an electric power grid by collecting
data from multiple sources, analyzing the data, and displaying the results
(830 F.3d at 1351-1352). The Federal Circuit noted that collecting
information has been treated as within the realm of abstract ideas,
"analyzing information by steps people go through in their minds, or by
mathematical algorithms, without more, as essentially mental processes
within the abstract-idea category," and "merely presenting the results of
abstract processes of collecting and analyzing information, without more" is
abstract and thus the claims focused on the combination of these abstract
ideas (id. at 1353-1354). Recently, the Federal Circuit summarized such a
situation in this way:
We have explained that claims focused on "collecting
information, analyzing it, and displaying certain results of the
collection and analysis" are directed to an abstract idea. Electric
Power, 830 F.3d at 1353. "Information as such is an intangible,"
hence abstract, and "collecting information, including when
limited to particular content (which does not change its character
as information), [i]s within the realm of abstract ideas." Id.
( citing cases). So, too, is "analyzing information .. . by
mathematical algorithms, without more." Id. at 13 54 ( citing
cases, including Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522,
57 L.Ed.2d 451 (1978), and Gottschalk v. Benson, 409 U.S. 63,
93 S.Ct. 253, 34 L.Ed.2d 273 (1972)). And "merely presenting
the results of abstract processes of collecting and analyzing
information, without more ( such as identifying a particular tool
for presentation), is abstract as an ancillary part of such
collection and analysis." Id. (citing cases). The claims here are
directed at abstract ideas under those principles.
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SAP America, Inc. v. InvestPic, LLC, 890 F.3d 1016, 1021 (Fed. Cir. 2018).
Here, the method of claim 1 collects information (i.e., transmits
seismic waves and records seismic data, as explained by the Examiner (Final
Act. 4; Ans. 4)), analyzes the information (i.e., determines if one or more
traces of the seismic data is missing, corrupt, or noisy, interpolates the
seismic data using a pairwise Hankel tensor, performs tensor completion to
obtain interpolated seismic data, combines the seismic data with the
interpolated seismic data (Final Act. 5)), and presents the results (i.e.,
generates an image of a surveyed geographical interest based on the
combined data). Thus, Electric Power Group demonstrates that claim 1 is
directed to abstract ideas (i.e., the collection of information, the analysis of
information, and presentation of the results) under the first step of analyzing
whether a claim is directed to patent-eligible subject matter.
As explained by the Examiner, Appellant attempts to distinguish
claim 1 from the claims of Electric Power Group on the basis of technical
differences but the similarities between the claims regard the abstract ideas
they are directed to: the collection, analysis, and display of information (id.
at 3--4). Appellant's arguments merely highlighting technical distinctions do
not explain why claim 1 is not directed to an abstract idea or a collection of
abstract ideas (i.e., the collection, analysis, and display of information), as in
Electric Power Group. Although claim 1 displays different results, uses a
different type of information, and uses a different type of analysis (i.e.,
interpolation with pairwise Hankel tensors), the recitations of claim 1 are
directed to information collection, information analysis, and presenting the
results, as discussed above. For the same reasons, Appellant's arguments
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regarding the differences between claim 1 and the claims of Digitech also do
not identify a reversible error.
With regard to the second step in the analysis set forth by Alice,
Appellant asserts claim 1 recites significantly more than data processing
because it provides an effective method to correct and complete seismic data
for exploring a geographical area of interest (Appeal Br. 7-8). Appellant
argues the detection of missing, corrupt, or noisy traces, the interpolation of
data, and combination of data to generate an image depend on the underlying
physical reality of the geographical area of interest and therefore claim 1, as
a whole, is significantly more than the mathematical operation of
interpolation (id. at 8).
These arguments are also unpersuasive. The limitations of claim 1 do
not tie the recited steps to an underlying physical reality of a geographical
area of interest argued by Appellant. Nor do the additional elements of
claim 1, considered individually and as an ordered combination, transform
the nature of claim 1 into patent-eligible subject matter. As stated by the
Examiner, the additional limitations are recited at a high level of generality
and perform generic functions (Final Act. 3--4, 6-7; Ans. 6-7). As
explained by the Federal Circuit in Digitech, although an application of a
mathematical formula to a known structure or process may be deserving of
patent protection (758 F.3d at 1350, quoting Diamond v. Diehr, 450 U.S.
175, 187 (1981)) and "[a] claim may be eligible if it includes additional
inventive features such that the claim scope does not solely capture the
abstract idea," (id., citing Alice), a claim does not become eligible "merely
by adding the words 'apply it'" (id., quoting Bancorp Servs., LLC v. Sun Life
Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1276 (Fed. Cir. 2012)). Here,
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as with the claims of Digitech, "[ w ]ithout additional limitations, a process
that employs mathematical algorithms to manipulate existing information to
generate additional information is not patent eligible" (id. at 1351, citing
Parker v. Flook, 437 U.S. 584, 595 (1978)).
Appellant's contention that claim 1 is similar to claims in Thales
Visionix Inc. v. U.S., 850 F.3d 1343 (Fed. Cir. 2017) (Appeal Br. 8) is also
unpersuasive. The claims of Thales were directed to an unconventional
arrangement of inertial sensors and calculations based on a different
reference frame to reduce errors (850 F.3d at 1348-1349). As stated by the
Examiner (Ans. 6), Appellant does not explain that although their invention
regards conventional or generic steps or components ( e.g., when considered
individually), they are combined in an unconventional manner that provides
an improvement and thus patent-eligible subject matter under step two of
Alice. See Amdocs (Israel) Limited v. Openet Telecom, Inc., 841 F.3d 1288,
1300 (Fed. Cir. 2016) (citing DDR Holdings, LLC v. Hotels.com, L.P., 773
F.3d 1245, 1256-59 (Fed. Cir. 2014) and BASCOM Glob. Internet Servs.
Inc. v. AT & T Mobility LLC, 827 F.3d 1341, 1349-52 (Fed. Cir. 2016)).
Appellant's arguments that the claims are similar to the claims of In re Abele
(Reply Br. 3) are also unpersuasive in view of the above analysis regarding
Electric Power Group and Digitech.
In view of the above, Appellant's arguments do not identify a
reversible error in the Examiner's§ 101 rejection of claim 1.
Appellant argues independent claims 2 and 11 are also not directed to
an abstract idea and amount to significantly more than an abstract idea by
citing the arguments discussed above for claim 1, along with similar
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arguments (Appeal Br. 8-10). For the reasons discussed above, these
arguments are not persuasive.
In addition, Appellant asserts claim 11 is not directed to an abstract
idea because it recites a hardware element: "a receiver configured to acquire
transmitted seismic data indicative of a surveyed geographical area of
interest" (id. at 10). As explained by the Examiner, the additional
limitations of claim 11, including the receiver, are recited at a high level of
generality and perform generic functions (Final Act. 3--4, 6-7). Further,
Appellant's Specification (Spec. ,r 86) indicates that such a receiver is a
generic component and not itself an improvement or an unconventional
arrangement. Nor is there is an indication that the overall system of claim
11 is an unconventional combination, as in Thales (Ans. 6). Therefore,
Appellant's arguments also do not identify a reversible error in the
Examiner's § 101 rejections of claims 2 and 11.
Appellant does not argue dependent claims 3-10 and 12-20 separately
from claims 2 and 11. Appeal Br. 5-10.
For these reasons and those set forth in the Examiner's Answer, we
sustain the Examiner's§ 101 rejection of claims 1-20.
§ 103 Rejection
Claims 1-20 are rejected under 35 U.S.C. § 103 as being unpatentable
over AAP A in view of Baumstein.
The Examiner finds the AAP A discloses the limitations of claim 1 but
does not disclose a pairwise Hankel tensor (Final Act. 10-11 ). The
Examiner finds Baumstein does not explicitly disclose a pairwise Hankel
tensor but discloses a fourth order tensor encompassing a subset of fourth
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order tensors that would meet the condition set forth in paragraph 55 of the
Specification for when a fourth order tensor is a pairwise Hankel tensor (id.
at 11 ). The Examiner concludes it would have been obvious to modify the
AAP A in view of Baumstein "to gain the benefit of analyzing multiple
geophysical data sets" (id. at 12).
Appellant's principal argument on appeal 3 is that Baumstein does not
disclose a pairwise Hankel tensor (Appeal Br. 11-14). Specifically,
Appellant contends paragraph 55 of Appellant's Specification sets forth the
condition met by a fourth order pairwise Hankel tensor but Hankel tensors
are not a subset of fourth order tensors and "although there are tensors which
are both fourth-order and Hankel tensors" pairwise Hankel tensors are not
fourth-order tensors and vice-versa (Appeal Br. 11-12; Reply Br. 1-3).
Appellant's arguments are persuasive. Paragraph 55 of Appellant's
Specification states "[a] fourth-order tensor Tis considered to be a pairwise
Hankel tensor when it meets the following condition:"
Baumstein discloses a method for enhancing geophysical data for analysis of
hydrocarbons (Baumstein ,r 2). Baumstein discloses a need for interpolation
to make seismic data suitable for many modem data processing techniques
and that interpolation addresses missing data and overcomes aliasing
distortions "by incorporating statistical and physical assumptions about the
seismic data and seismic data of other types into an enhanced iterative
method for interpolation" (id. ,r 63). Baumstein discloses that two types of
seismic data (e.g., free surface (FS) data and water bottom (WB) data) may
3 Appellant does not dispute that the AAPA is prior art (Appeal Br. 11-13).
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be combined for interpolation by using the linearized conservation of
momentum equation:
r
oo roo
T(.x, t) = _ c(x, t - r): v u.(.:r~, T) dr = ., Cijk.t(..r, t- r)ih_ u,tx) dr
, ..... .:._:,.,._') , ..... ,;._!(1
where Cijkt is a fourth-order tensor and each of indices i,j, k, l can take the
values of 1, 2, or 3 (id. ,r,r 71-73 (see equation (2))).
It is unclear from Baumstein's disclosure whether it's fourth-order
tensor would indeed satisfy the conditions set forth in paragraph 55 of
Appellant's Specification. Nor does the Examiner explain how the fourth
order tensor disclosed by Baumstein encompasses a pairwise Hankel tensor
(e.g., how Baumstein's tensor would have values meeting the conditions set
forth in paragraph 55 of the Specification). As a result, the Examiner has
not set forth a prima facie case of obviousness for claim 1. A preponderance
of the evidence in the record does not support a conclusion of obviousness.
Appellant makes similar arguments for claims 2 and 11 ( Appeal Br.
12-13). Claims 3-10 and 12-20 depend from claims 2 and 11.
For the reasons discussed above, we do not sustain the Examiner's
§ 103 rejection of claims 1-20 over AAPA and Baumstein.
DECISION
The Examiner's rejection of 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).
AFFIRMED
11