Ex Parte Valenciano Mavilio et al

Patent Trial and Appeal Board

Dec 29, 2016

12383622 (P.T.A.B. Dec. 29, 2016)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/383,622 03/27/2009 Alejandro Antonio Valenciano Mavilio PGS-08-28US-NP 6782
95738 7590 01/03/2017
Petroleum Geo-Services, Inc.
West Memorial Place 1
15375 Memorial Drive Suite 100
Houston, TX 77079
EXAMINER
MURPHY, DANIEL L
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
01/03/2017 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):
docketing@pgs.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALEJANDRO ANTONIO VALENCIANO MAVILIO,
NIZAR CHEMINGUI, and SVERRE BRANDSBERG-DAHL
Appeal 2014-005650
Application 12/383,622
Technology Center 3600
Before LINDA E. HORNER, JILL D. HILL, and LISA M. GUIJT,
Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants1 seek our review under 35 U.S.C. § 134 of the Examiner’s
decision2 rejecting claims 1—8. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE and enter a NEW GROUND OF REJECTION pursuant to
our authority under 37 C.F.R. § 41.50(b).
1 Appellants identify the real party in interest as PGS Geophysical AS.
App. Br. 1.
2 Appeal is taken from the Non-Final Office Action dated April 30, 2013
(“Non-Final Act.”).
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Application 12/383,622
CLAIMED SUBJECT MATTER
Appellants’ claimed subject matter relates to “methods for migrating
seismic data that can accurately approximate energy propagation in
transversely isotropic media wherein the axis of symmetry is inclined with
respect to a measurement surface that holds an array of seismic sensors.”
Spec. 11. Claims 1 and 5, reproduced below, are the independent claims on
appeal.
1. A method for migrating three dimensional seismic data in
tilted transversely isotropic (“TTI”) media comprising:
transforming the seismic data into the wavenumber-
frequency domain, the seismic data representing signals acquired
by deploying seismic sensors and a seismic energy source,
actuating the source and detecting seismic energy in response
thereto with seismic sensors;
generating three dimensional numerical solutions to an
exact relationship for a three dimensional dispersion relationship
of seismic energy traveling through TTI media, the numerical
solutions calculated using a pre-computed table including
selected input values of polar angle an azimuth angle of a
transverse isotropic axis of symmetry and selected values of
Thomsen anisotropic parameters and selected values of a ratio of
inhomogeneous medium velocity along the transverse isotropic
axis of symmetry to reference medium velocity, the exact
relationship defining wavenumbers for seismic data in three
dimensions;
determining coefficients of a two dimensional Fourier
finite difference relationship that result in a best fit of
wavenumbers to the three dimensional numerical solutions for
different splitting directions, resulting in a set of coefficients for
each splitting direction;
migrating the transformed seismic data using the
wavenumbers from the Fourier finite difference relationship and
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the set of coefficients from each splitting direction to generate an
image; and
displaying the image.
5. A computer readable medium having stored thereon a
computer program, the program containing logic operable to
cause a programmable computer to perform steps comprising:
transforming three dimensional seismic data into the
wavenumber-frequency domain, the seismic data representing
signals acquired by deploying seismic sensors and a seismic
energy source, actuating the source and detecting seismic energy
in response thereto with seismic sensors;
generating three dimensional numerical solutions to an
exact relationship for a three dimensional dispersion relationship
of seismic energy traveling through TTI media, the numerical
solutions calculated using a pre-computed table including
selected input values of polar angle an azimuth angle of a
transverse isotropic axis of symmetry and selected values of
Thomsen anisotropic parameters and selected values of a ratio of
inhomogeneous medium velocity along the transverse isotropic
axis of symmetry to reference medium velocity, the exact
relationship defining wavenumbers for seismic data in three
dimensions;
determining coefficients of a two dimensional Fourier
finite difference relationship that result in a best fit of
wavenumbers to the three dimensional numerical solutions for
different splitting directions, resulting in a set of coefficients for
each splitting direction;
migrating the transformed seismic data using the
wavenumbers from the Fourier finite difference relationship and
the set of coefficients from each splitting direction_ to generate
an image; and
displaying the image.
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REJECTIONS
I. Claims 1—3 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Shan 2007 (“Optimized implicit finite-difference migration for TTI
media,” (2007)), Shan 2005 (“3D wavefield extrapolation in laterally-
varying tilted TI media,” (2005)), Ristow 1997 (“3-D implicit finite-
difference migration by multiway splitting,” (1997)), Ristow 1994 (“Fourier
finite-difference migration,” (1994)), and Press (“Numerical Recipes in
C++, (2002)).
II. Claim 4 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Shan 2007, Shan 2005, Ristow 1997, Ristow 1994, Press, and Wu (US
2006/0120217 Al; pub. June 8, 2006).
III. Claims 5—7 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Shan 2007, Shan 2005, Ristow 1997, Ristow 1994, Press, and Lou (US
2007/0168167 Al; pub. July 19, 2007).
IV. Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Shan 2007, Shan 2005, Ristow 1997, Ristow 1994, Press, Lou, and Wu.
ANALYSIS
Rejection I
Regarding independent claim 1, the Examiner finds that Shan 2007
teaches “a method for migrating three dimensional seismic data in tilted
transversely isotropic (‘TTI’) media,” however, that Shan 2007 does not
teach, inter alia, “that the dispersion relation is a three dimensional
dispersion relation.” Non-Final Act. 19—20. The Examiner relies on Shan
2005 for teaching “a three dimensional dispersion relation, including a
coordinate rotation to handle the case where the azimuth of the tilting
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direction is nonzero, such as can be used in the equations of Shan 2007.” Id.
at 21 (citing Shan 2005, p. 104,11. 16—20). The Examiner reasons that it
would have been obvious
to utilize the method taught by Shan 2007, in combination with
the coordinate rotation as taught by Shan 2005, to generate
numerical solutions to an exact relationship for a three
dimensional dispersion relationship of seismic energy traveling
through TTI media . . . , since such combination provides for 3D
wavefield extrapolation in laterally-varying media.
Id.', see also Ans. 13—14.
In support of this reasoning, the Examiner determines that “one of
ordinary skill in the art at the time of the invention would have appreciated
that whereas the Pade approximation of Shan 2007 can be used to solve for
Sz as a function of Sx,. . . the Pade approximation can be expanded based on
the teachings of Shan 2005 to obtain Sz as a function of Sx and Sy”3,4 (Non-
Final Act. 10), and that “Sz and Sx are simply rescalings of kz and kx to be
dimensionless variables,” such that “Sy would be related to the ky of Shan
2005 by a similar rescaling” (id.). In further support, the Examiner
determines that
3 The Examiner explains that “for example, Shan 2007 teaches that the
coefficients in the Pade approximation can be obtained by Taylor expansion
or by least squares . . . , both of which are well known and straightforward to
apply regardless of whether Sz depends on the single variable Sx or on the
two variables Sx and Sy.” Non-Final Act. 10 (citing Shan 2007, P. 2291, col.
2,11. 19-21).
4 The Examiner clarifies that “[t]he two dimension version of the Pade
approximation goes by the name of a Chisholm approximation,” and thus,
“the ordinary artisan, motivated to modify Shan 2007 with Shan 2005 could
readily adapt the Pade approximation of Shan 2007 to the two dimensional
case.” Ans. 23; see also Appeal Br. 21—22.
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it would be understood by one of ordinary skill in the art that the
coefficients ao through <24 of Shan 2005 incorporate dependence
on ky, as well as kx and kz, the coefficients do through of Shan
2007 amount to setting ky = 0 in Shan 2005, and replacing the
remaining wavevector components kx and kz with scaled,
dimensionless variables Sx and Sy (with corresponding
appropriate changes to ao through a4 to accommodate the
rescalings).
Id. at 10. The Examiner concludes that “[ajbsent typographic errors in Shan
2005 or Shan 2007, setting ky= 0 and replacing the wavevector components
kx and A with the dimensionless variables Sx and Sz transforms Shan 2005 ’s
coefficients ao through <24 to do through d4,” and “[hjence, it would be
straightforward to one of ordinary skill in the art to adapt the optimization
for Shan 2007 to the 3D migration case of Shan 2005.” Id. at 11. In other
words, the Examiner reasons that
[gjiven the teachings of Shan 2007, a person of ordinary skill in
the art would optimize a finite-difference migration process for
tilted transversely isotropic (TTI) media using a table-driven
implicit finite difference method for laterally varying media,
essentially a 2-D approach, but would not find any explicit
guidance in Shan 2007 as to how to accomplish an optimized
finite-difference migration process in 3-D. It would have been
obvious to apply the explicit 3-D treatment of dispersion
relations in anisotropic media of Shan 2005 . . . cited in Shan
2007 for [its] teachings of aspects of finite different approaches.
Ans. 13.
Appellants argue, inter alia, that “[i]t is not a simple matter to use the
three-dimensional dispersion relation of Shan 2005 to modify the two-
dimensional dispersion relation of Shan 2007 to obtain a three-dimensional
dispersion relation to an exact relationship for a three-dimensional
dispersion relationship,” as required by independent claim 1. Appeal Br. 11.
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In support, Appellants contend that Shan 2005 “presents] a VTI [vertically
transversely isotropic] three-dimensional dispersion relation in Equation (1)
in 2nd column of page 104” (id. at 9 (brackets in original)), “explains that the
coordinate rotation given in Equation (3) of Shan 2005 is substituted into the
VTI dispersion relation of Equation (1)... to obtain a TTI dispersion
relation of the wavenumber kz given in Equation (4)” (id. at 12), and
“explains that Equation (4) is a quartic equation in V,” which “can be solved
analytically,” wherein Shan 2005 cites to “Abromowitz and Stegun, 1972, as
a reference for determining an analytic solution” (id. at 13 (citing Shan
2005, p. 104)). Appellants note that “coefficients a.4, <23, <22, aj, and ao given
in Equations (1) and (5) of Shan 2005 are derived from Equations (1) and
(2),” and that “these coefficients are functions of two wavenumbers kx and
ky.” Id. at 13. Appellants continue that
[i]n summary, Shan 2005 teaches a method of obtaining a TTI
dispersion relation given by Equation (4) of Shan 2005 from a
three-dimensional VTI dispersion relation given by Equation (1)
and cites a reference that states Equation (4) can be solved
analytically for the wavenumbers without having to resort to
numerical methods to obtain solutions.
Id. at 13—14. Thus, Appellants submit that “the Examiner [has] not provided
an analysis that demonstrate[s] Shan 2005 can be used to modify the
teach[ing]s of Shan 2007” to result in the subject matter claimed. Id. at 14.
Appellants also argue that
[t]he mathematical expressions presented in Shan 2005 and Shan
2007 were derived to address two entirely different] problems
with respect to TTI media. Shan 2005 states
[i]n this paper, we extrapolate the wavefield in 3D tilted
TI media using an implicit isotropic operator with an
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explicit anisotropic correction. (Shan 2005, Introduction,
p. 104)
By contrast, Shan 2007 states
[i]n this paper, I present an optimized one-way wave
equation for TTI media and use a table-driven implicit
finite-difference method (Shan 2006) for laterally varying
media. (Shan, Introduction, p. 2290).
Id. at 21. Appellants conclude that because Shan 2005 and Shan 2007
“present mathematical equations that were derived to address different
problems in different ways, . . . the Examiner’s motivation is no substitute
for evidence and an analysis that these references may actually be used to
support the Examiner’s assertions.” Id.
The Examiner responds that although Shan omits, inter alia, “an
overall factor kx from the equation for a3” (Ans. 14 (citing Shan 2005, p.
104, col. 2), “such articles include defects not caught prior to submission,”
and “[o]ne of ordinary skill in the art would realize [(such errors)],” and
“[alternatively, one of ordinary skill in the art could apply equations (1),
(2), and (3) and compare with equation (4), to find that the expression for a3
given by Shan 2005 omits a factor of kx” (id. ). The Examiner concludes that
“defects in references are typically not serious enough to render them unfit
as teaching references.” Id. at 14—15, see also id. at 18. The Examiner
further concludes that “although not a simple matter, the modification of the
dispersion relation of Shan 2007 using the dispersion relation of Shan 2005
is merely tedious, and not beyond the capability of one of ordinary skill in
the art.” Id. at 18. In particular, the Examiner maintains that
[t]he Examiner’s assertion concerning setting ky to zero and
replacing the remaining wavevector components kx and kz with
scaled, dimensionless variables Sx and Sz (with corresponding
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appropriate changes to ao through <24 to accommodate the
rescalings) is correct, once account is taken of typographical
errors in Shan 2005 and Shan 2007.
Id.; see also id. Ans. 22—23.
Appellants reply that the Examiner’s determination that Shan 2005
presented Equations (4) and (5) in error lacks foundation and is incorrect,
because these equations “happen to be the salient equations that form the
basis for the calculations and numerical results discussed in the remainder of
Shan 2005.” Reply Br. 3^4. Appellants further contend that the Examiner
relied on “mistaken mathematical reasoning as to why the equation for the
coefficient should allegedly include a wavenumber kx” (Reply Br. 4; see
id. 4—6), concluding that “the Examiner’s assertion that the second term add?
of Equation (4) of Shan 2005 ‘must have’ wavenumber to the fourth power
units is incorrect” {id. at 6). Appellants conclude that “the Examiner has not
presented any additional evidence that Shan 2005 includes errors.” Id. at 4.
On the record before us, although the Examiner may have determined
a solution for modifying Shan 2007 from the teachings of Shan 2005 to
arrive at the subject matter recited in claim 1, the Examiner has failed to
articulate adequately why one of ordinary skill in the art at the time of the
invention would have been led to glean from Shan 2005 such a solution for
improving upon Shan 2007, particularly in view of Appellants’ evidence that
Shan 2005 and Shan 2007 present mathematical equations derived to address
different problems in different ways. Additionally, we are persuaded by
Appellants’ argument that the Examiner has failed to support adequately the
Examiner’s finding that Shan 2005 contains the typographical errors relied
on by the Examiner to conclude that the subject matter of claim 1 is obvious.
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Thus, we cannot sustain the Examiner’s rejection of independent claim 1 and
claims 2 and 3 depending therefrom.
Rejections II—IV
Claim 4 depends from independent claim 1, and the Examiner’s
reliance on Wu does not cure the deficiencies in the Examiner’s findings and
reasoning with respect to claim 1, as discussed supra. Further, the Examiner
relies on the same findings and reasoning with respect to Shan 2005, as
applied to claim 1, in the Examiner’s rejection of independent claim 5, and
the Examiner’s additional reliance on Lou does not cure such deficiencies.
See Non-Final Act. 25. Claims 6 and 7 depend from claim 5. Claim 8
depends from claim 5, and the Examiner’s reliance on Wu and/or Lu does
not cure the deficiencies in the Examiner’s findings and reasoning with
respect to claim 5, as discussed supra. Therefore, for the reasons discussed
supra with respect to independent claim 1, we do not sustain the Examiner’s
rejection of claims 4—8.
NEW GROUND OF REJECTION
Pursuant to our authority under 37 C.F.R. § 41.50(b), we enter a new
ground of rejection of claims 1—8 under 35 U.S.C. § 101.
In Alice, the Supreme Court applied the framework set forth
previously in Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S.
__,__ , 132 S. Ct. 1289 (2012), “for distinguishing patents that claim laws of
nature, natural phenomena, and abstract ideas from those that claim patent-
eligible applications of those concepts.” Alice Corp. Pty. Ltd. v. CLS Bank
Intern., 134 S. Ct. 2347, 2355. The first step in the analysis is to “determine
whether the claims at issue are directed to one of those patent-ineligible
concepts].” Id. If so, the second step in the analysis is to consider the
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elements of the claims “individually and ‘as an ordered combination’ to
determine whether [there are] additional elements” that “‘transform the
nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo,
132 S. Ct. at 1297). In other words, the second step is to “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.’” Id. (alteration in original)
(quoting Mayo, 132 S. Ct. at 1294).
We determine that claim 1 is directed to the abstract idea of the
mathematical analysis of seismic data. Specifically, “[w]ithout additional
limitations, a process that employs mathematical algorithms to manipulate
existing information to generate additional information is not patent
eligible.” Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d
1344, 1351 (Fed. Cir. 2014). As stated supra, claim 1 requires migrating
data by transforming the seismic data, generating three dimensional
numerical solutions relating to the seismic data, determining coefficients that
result in a best fit for the solutions, and migrating the transformed seismic
data. Therefore, the subject matter of claim 1 is a process that employs
mathematical algorithms to manipulate existing information to generate
additional information.
Second, we determine that the additional elements of claim 1,
individually and as an ordered combination, do not transform the nature of
claim 1 into a patent-eligible application. Specifically, the claim recitation
that the data represents signals acquired by deploying seismic sensors and a
seismic energy source, actuating the source, and detecting seismic energy in
response thereto with seismic sensors, limits the source of the data, but does
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not transform the nature of claim 1 from the abstract idea of employing
mathematical algorithms to manipulate data, as discussed supra, into a
patent-eligible application. The step of “displaying the image” is likewise
insufficient to transform the nature of claim 1, in that the displaying an
image is a conventional step and an expression of insignificant post-solution
activity.
Independent claim 5, as stated supra, recites “a computer readable
medium having stored thereon a computer program, the program containing
logic operable to cause a programmable computer to perform the steps” as
substantially recited in claim 1. “[TJhe mere recitation of a generic
computer cannot transform a patent-ineligible abstract idea into a patent-
eligible invention.” Alice Corp. Pty. Ltd., 134 S. Ct. at 2358 (citations
omitted). Thus, claim 5 simply instructs the practitioner to implement the
abstract idea on a generic computer, and therefore, the recitation of a
computer readable medium is not enough to transform the abstract idea into
a patent-eligible invention.
Claims 2-A and 6—8, which depend from independent claims 1 and 5,
further limit the mathematical algorithm for manipulating the data, and
therefore, are also insufficient to transform the nature of claims 2-4 and 6—8
into a patent-eligible application.
Accordingly , we enter a ne w ground of rejection of claims 1—8 under
35 U.S.C. § 101 as being directed to a patent-ineligible concept.
DECISION
The Examiner’s decisions to reject claims 1—8 under 35 U.S.C.
§ 103(a) are REVERSED.
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We enter a new ground of rejection of claims 1—8 under 35 U.S.C.
§101.
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b).
37 C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant
to this paragraph shall not be considered final for judicial review.” 37
C.F.R. § 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant, within
two months from the date of the decision, must exercise one of the following
two options with respect to the new ground of rejection to avoid termination
of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the Examiner in which event the prosecution will be remanded
to the Examiner. The new ground of rejection is binding upon
the examiner unless an amendment or new Evidence not
previously of Record is made which, in the opinion of the
examiner, overcomes the new ground of rejection designated in
the decision. Should the examiner reject the claims, appellant
may again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record.
The request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been misapprehended
or overlooked in entering the new ground of rejection and also state all other
grounds upon which rehearing is sought.
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Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
REVERSED; 37 C.F.R, $ 41.50(b)
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