Ex Parte van Borselen et al

Patent Trial and Appeal Board

Aug 29, 2018

13407049 (P.T.A.B. Aug. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/407,049 02/28/2012
137491 7590 08/31/2018
OLYMPIC PA TENT WORKS PLLC
P.O. BOX 4277
SEATTLE, WA 98104
FIRST NAMED INVENTOR
Roald van Borselen
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-ll-31US 9730
EXAMINER
BARBEE, MANUELL
ART UNIT PAPER NUMBER
2864
NOTIFICATION DATE DELIVERY MODE
08/31/2018 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):
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 ROALD VAN BORSELEN,
PETER M. VAN DAN BERG, and JACOB T. FOKKEMA
Appeal2017-010043
Application 13/407,049
Technology Center 2800
Before MICHAEL P. COLAIANNI, N. WHITNEY WILSON, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-20, which constitute all the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 In this Decision, we refer to the Specification filed February 28, 2012
("Spec."), the Non-Final Office Action dated October 3, 2016 ("Non-Final
Act."), the Appeal Brief filed February 28, 2017 ("Appeal Br."), the
Examiner's Answer dated May 18, 2017 ("Ans."), and the Reply Brief filed
July 18, 2017 ("Reply Br.").
2 Appellants identify the real party in interest as PGS Geophysical AS.
Appeal Br. 1.
Appeal2017-010043
Application 13/407,049
The subject matter on appeal relates to methods and systems for
deghosting marine seismic wavefields using cost-functional minimization.
Spec. ,r 11. Claim 1, reproduced below, is illustrative of the claims on
appeal.
1. An exploration-seismology computer system that
deghosts wavefield data obtained from one or more receivers of
a data acquisition surface, the exploration-seismology computer
system comprising:
one or more processors;
one or more data-storage devices; and
a deghosting routine stored in one or more of the one or
more data-storage devices and executed by the one or
more processors, the routine directed to
transforming the wavefield data associated with
each receiver from a spacetime domain to a spectral
domain to form a scattered wavefield matrix in the
spectral domain;
computing a deghosted wavefield matrix at zero
depth from the scattered wavefield matrix;
iteratively computing a deghosted wavefield
matrix that minimizes a cost functional formed from a
multiplicative regularization factor and a matrix norm of
a residue matrix, each element of the residue matrix is a
difference between an element of the scattered wavefield
matrix and an element of the de ghosted wavefield matrix
adjusted to approximate a corresponding element of the
scattered wavefield matrix; and
generating an image of the subterranean formation
using at least in part the deghosted wavefield matrix, the
image revealing structural information about the
subterranean formation.
Appeal Br. 15 (Claims App.).
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Application 13/407,049
REJECTION ON APPEAL
Claims 1-20 are rejected under 35 U.S.C. § 101 because the claimed
invention is directed to a judicial exception (i.e., a law of nature, a natural
phenomenon, or an abstract idea) without significantly more. Ans. 2.
ANALYSIS
We review the appealed rejection for error based upon the issues
identified by the Appellants and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to
identify the alleged error in the examiner's rejections")). After considering
the evidence presented in this Appeal and each of Appellants' arguments, we
are not persuaded that Appellant identifies reversible error. Thus, we affirm
the Examiner's rejection for the reasons expressed in the Non-Final Office
Action and the Answer. We add the following.
Appellants present separate arguments for the patentability of
claims 1, 3 and 13. Appeal Br. 5-13. We select claim 1 as representative of
the rejected claims, and will address the separate arguments presented for
claims 3 and 13 below.
Alice Corp. Pty. Ltd. v. CLS Banklnt'l, 134 S. Ct. 2347 (2014),
identifies a two-step framework for determining whether claimed subject
matter is judicially-excepted from patent eligibility under § 101. According
to Alice step one, "[ w ]e must first determine whether the claims at issue are
directed to a patent-ineligible concept," such as an abstract idea. Alice,
134 S. Ct. at 2355. The second step requires examining "the elements of the
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Application 13/407,049
claim to determine whether it contains an 'inventive concept' sufficient to
'transform' the claimed abstract idea into a patent-eligible application."
Alice, 134 S. Ct. at 2357 (quoting Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 72, 79 (2012)).
The Examiner determined that the claims are directed to mathematical
relationships and formulas for performing a deghosting routine and
concluded that the subject matter of the claims is directed to the judicial
exception of abstract ideas. Non-Final Act. 2-3; Ans. 2-3.
To the extent Appellants argue that claim 1 's character as a whole,
considered in light of the Specification, is not directed to an abstract idea, we
are unpersuaded. Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1335
(Fed. Cir. 2016) (step 1 "applies a stage-one filter to claims, considered in
light of the specification, based on whether 'their character as a whole is
directed to excluded subject matter."')
As set out in the Specification, Appellants' computational methods for
deghosting seismic data are described with reference to "numerous
equations," "utilize a multiplicative regularization factor that avoids
experimentally based tuning processes," and "are repeatable and capable of
automation, because the computational methods ... do not require heuristic
human judgment." Spec. ,r 22; see also id. ,r,r 26-39. Thus, we determine
that there is a sufficient basis for the Examiner to conclude that under step 1
of the Alice analysis, claim 1 is directed to an abstract idea of a de ghosting
routine executed by the one or more processors, the routine directed to
transforming the wavefield data to form a scattered wavefield matrix,
computing a deghosted wavefield matrix from the scattered wavefield
matrix, and computing a deghosted wavefield matrix that minimizes a cost
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Application 13/407,049
functional formed from a multiplicative regularization factor and a matrix
norm of a residue matrix. Non-Final Act. 2-3; see Diamond v. Diehr,
450 U.S. 175, 191 (1981) ("[a] mathematical formula ... 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") (citation omitted); In re Grams, 888 F.2d 835, 837 (Fed. Cir.
1989) ("Mathematical algorithms join the list of non-patentable subject
matter not within the scope of section 101."); see also Digitech Image
Techs., LLC v. Elecs.for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir.
2014) ("Without additional limitations, a process that employs mathematical
algorithms to manipulate existing information to generate additional
information is not patent eligible."); Elec. Power Grp., LLC v. Alstom S.A.,
830 F.3d 1350, 1353-54 (Fed. Cir. 2016) (discussing how "collecting
information" and "analyzing information by steps people go through in their
minds, or by mathematical algorithms, without more" are abstract ideas).
Step two of the Alice analysis involves "a 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."' Alice, 134 S. Ct. at 2355 (alteration in
original) (quoting Mayo, 566 U.S. at 72-73).
Appellants argue that "the elements of claims 1-20 considered alone
and in combination describe specific operations that transform the claims
into patent eligible subject matter and are clearly more than a simple
statement of the abstract idea of de ghosting marine seismic data." Appeal
Br. 11. Appellants further argue that "[t]he claims are directed to an ordered
combination ... that result in a deghosted wavefield matrix, which can be
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used to generate clearer images of the earth's interior." Id. Appellants,
however, do not persuasively explain how the elements individually, or as an
ordered combination, transform claim 1 into patent-eligible subject matter.
The Examiner found that the claims employ additional conventional
devices (processors, data-storage devices, receivers, and a computer system)
for performing their common functions. Non-Final Act. 3. The Examiner
further found that the additional element of generating an image is
"outputting a result of the abstract idea and is insignificant extra solution
activity." Id. The Examiner, therefore, determined that, the "additional
elements of a processor, data storage devices, and step of generating an
image[, alone and in combination,] are not significantly more than the
abstract idea and do not provide meaningful limitations beyond generally
linking the deghosting routine to a marine seismic environment." Ans. 6-7;
see also Non-Final Act. 3--4; see also Alice, 134 S. Ct. at 2358 ("[T]he mere
recitation of a generic computer cannot transform a patent-ineligible abstract
idea into a patent-eligible invention."); Elec. Power, 830 F.3d at 1354
( explaining that the step of displaying the results of the calculations was not
enough to constitute significantly more than the abstract idea); id. ("limiting
the claims to the particular technological environment ... is, without more,
insufficient to transform them into patent-eligible applications of the abstract
idea at their core."). Appellants fails to persuasively explain why the
Examiner's reasoning is mistaken.
Appellants argue that "claims 1-20 are described in sufficiently
specific terms as to not prohibit inventive activity and, therefore, are not a
drafting effort designed to monopolize or preempt a building block of
innovation." Appeal Br. 12. Appellants further argue that their claims "are
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Application 13/407,049
not an attempt to monopolize already known or age old methods for
generating images of a subterranean formation based on deghosted marine
seismic data." Id.
Appellants' arguments are not persuasive because although
"preemption may signal patent ineligible subject matter, the absence of
complete preemption does not demonstrate patent eligibility." Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
Additionally, where claims are deemed to recite only patent ineligible
subject matter under the two-step Alice framework, as the Examiner has
done here, "preemption concerns are fully addressed and made moot." Id.
Appellants argue dependent claims 3 and 13 separately. Appeal
Br. 11-12; Reply Br. 7-8.
Appellants' argument that dependent claims 3 and 13 comprise
significantly more than the abstract idea because they "describe a specific
process of computing the total number of compute cycles" (Appeal Br. 11-
12; Reply Br. 7-8) is unpersuasive. Dependent claims 3 and 13 recite
further details for how the deghosted wavefield matrix is computed, which
include "computing cubic equation coefficients," "computing a real-valued
root of the cubic equation," "computing a conjugate gradient direction," and
"updating the deghosted wavefield ... based on the real-valued root
multiplied by the conjugate gradient direction." These additional recitations
are directed to additional mathematical calculations for performing the
deghosting routine. Consequently, a preponderance of the evidence supports
the Examiner's conclusion that "[ c ]laims 3 and 13 only recite further details
of the abstract idea (the deghosting routine)" (Ans. 7), and are therefore also
patent ineligible.
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Application 13/407,049
The remaining arguments have been carefully considered but are
unpersuasive as to error in the rejection.
DECISION
For the above reasons, the rejection of claims 1-20 under 35 U.S.C.
§ 101 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
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