Ex Parte Welker et al

Patent Trial and Appeal Board

Jul 31, 2013

10597227 (P.T.A.B. Jul. 31, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte KENNETH E. WELKER and VIDAR A. HUSOM
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Appeal 2011-005986
Application 10/597,227
Technology Center 3600
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Before: JENNIFER D. BAHR, BENJAMIN D. M. WOOD, and
JOHN W. MORRISON, Administrative Patent Judges.

MORRISON, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
69. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

CLAIMED INVENTION
The claims are related to a method and apparatus for more accurately
determining the position of seismic survey objects in a marine seismic
survey. Spec. 1. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. An apparatus for use in a marine seismic survey, comprising:
a short baseline acoustic system or an ultra short baseline
acoustic system, including:
a seismic survey object; and
an inertial measurement unit coupled to the seismic survey
object at a known point and from which the movement of the
seismic survey object can measured [sic] during a seismic
survey such that the position of the known point during the
marine seismic survey can be determined.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Banbrook
Burke
Ambs
Vandenbroucke
US 5,640,325
US 5,739,787
US 6,011,752
US 6,625,083 B2
Jun. 17, 1997
Apr. 14, 1998
Jan. 4, 2000
Sep. 23, 2003

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REJECTIONS
The Examiner made the following rejections:
Claims 1-5, 7, 8, 10-19, 21-30, and 32-69 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Banbrook and Vandenbroucke.
Claim 6 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Banbrook, Vandenbroucke, and Ambs.
Claims 9, 20, and 31 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Banbrook, Vandenbroucke, and Burke.

ANALYSIS
Obviousness over Banbrook and Vandenbroucke
Appellants argue claims 1-5, 7, 8, 10-19, 21-30, and 32-69 as a group.
App. Br. 9-18. We select claim 1 as the representative claim, and claims 2-
5, 7, 8, 10-19, 21-30, and 32-69 will stand or fall with claim 1. 37 C.F.R. §
41.37(c)(1)(vii).
The Examiner finds that Banbrook teaches substantially all of the
limitations of claim 1, but “does not teach a short baseline acoustic system
or ultrashort baseline acoustic system used with the seismic survey object
and inertial measurement unit.” Ans. 4. The Examiner finds that
“Vandenbroucke teaches that it is known to use short baseline or ultrashort
baseline acoustic positioning systems in addition to other positioning
means.” Id. The Examiner then determines
It would have been obvious to one of ordinary skill
in the art of geophysics at the time of the invention
to modify the system of Banbrook with the short
baseline or ultrashort baseline acoustic positioning
systems of Vandenbroucke since such a
modification would have improved the accuracy of
the locations determined for the survey
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components, thus improving the accuracy of the
subsurface map created from the collected data.
Ans. 5.
First, Appellants argue that Banbrook does not disclose a “seismic
survey object” as required by claim 1. In particular, Appellants argue
“seismic never appears in Banbrook” (App. Br. 9); Banbrook “discloses
something quite different-a passive, towed array SONAR system for use in
underwater warfare” (Id.); “[s]ubmarines are not ever used to tow arrays
during seismic surveys” (Id.); and “SONAR investigates the water column
whereas seismic surveying investigates the subterranean structures beneath
the seabed that bounds the water column.” App. Br. 11. Each of these
arguments focuses on the intended use of the system of Banbrook, not on the
structure of the system. It is well known that "familiar items may have
obvious uses beyond their primary purposes." KSR Int'l Co. v. Teleflex, Inc.,
550 U.S. 398, 420 (2007). The Examiner found that
Vandenbroucke discloses a marine seismic survey
system used in seismic surveys that includes
hydrophones (the sensor used in Banbrook)
(Column 3, Line 43 to Column 4, Line 36).
Although Banbrook discloses using the acoustic
receivers for reflection surveys for locating
without specifically mentioning that it is seismic
surveying, Vandenbroucke teaches that it is known
that the same sensors are used to take data in
seismic reflection surveys.
Ans. 4. Appellants provide no argument or reasoning as to why the
Examiner has erred by finding that the hydrophones of Banbrook may be
used as seismic survey objects in a marine seismic survey. Thus, we are not
persuaded by Appellants arguments.
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Second, Appellants argue “Banbrook et al. does not teach ‘an
apparatus for use in a marine seismic survey’ and ‘a seismic survey object’.
It therefore follows that it cannot teach ‘an inertial measurement unit
coupled to the seismic survey object’ as is recited in the independent
claims.” App. Br. 11. We disagree. The hydrophones of Banbrook are
seismic survey objects, and thus, the attached inertial measuring units
(IMUs) satisfy the requirement of claim 1.
For claims requiring a source as the seismic survey element,
Appellants argue “Banbrook et al. nowhere teaches a source.” App. Br. 9.
However, the Examiner finds “Vandenbroucke teaches that it is known to
use seismic sources that are airguns in marine seismic surveys (Column 4,
Lines 21-30).” Ans. 6. Thus, Appellants have not identified any error in the
Examiner’s findings that the combination of references teaches “seismic
survey objects” that are sources.
Related to the above argument, Appellants assert “[b]oth techniques
[inertial measurement unit of Banbrook and ultrashort baseline acoustic of
Vandenbroucke] are disclosed as whole and complete within themselves and
fully capable of addressing the problem for which they were designed to
resolve.” App. Br. 11-12. However, this argument ignores the Examiner’s
finding that “Vandenbroucke teaches that it is known to use short baseline or
ultrashort baseline acoustic positioning systems in addition to other
positioning means.” Ans. 4. Thus, we are not persuaded by the argument
that different positioning systems may not be used together where each
system appears adequate by itself.
Third, Appellants assert that Banbrook is not analogous art. App. Br.
12-16. Whether a reference in the prior art is “analogous” is a fact question.
In re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992) (citing Panduit Corp. v.
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Dennison Mfg., 810 F.2d 1561, 1568 n.9 (Fed. Cir.), cert. denied, 481 U.S.
1052 (1987)). Two criteria have evolved for determining whether prior art is
analogous: (1) whether the art is from the same field of endeavor, regardless
of the problem addressed, and (2) if the reference is not within the field of
the inventor's endeavor, whether the reference still is reasonably pertinent to
the particular problem with which the inventor is involved. Id. (citing In re
Deminski, 796 F.2d 436, 442 (Fed. Cir. 1986); In re Wood, 599 F.2d 1032,
1036 (CCPA 1979)). “A reference is reasonably pertinent if, even though it
may be in a different field from that of the inventor's endeavor, it is one
which, because of the matter with which it deals, logically would have
commended itself to an inventor's attention in considering his problem.” Id.
at 659.
Appellants argue that the particular problems to be solved is related to
the field of endeavor of Banbrook. For example, Appellants assert that the
system of Banbrook is “used to detect and track moving objects” and that
“the target detected and tracked by the SONAR system of Banbrook et al.
will typically have the ability to fire on the vessel deploying the array-a
threat not posed by subsurface geological formation in a seismic survey.”
App. Br. 13. However, “[u]nder the correct analysis, any need or problem
known in the field of endeavor at the time of invention and addressed by the
patent can provide a reason for combining the elements in the manner
claimed.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007). The
Examiner defines the problem as “improving the accuracy of the subsurface
map created from the collected data.” Ans. 26. We agree with the Examiner.
In both the Seismic survey of Vandenbroucke and SONAR of Banbrook, the
accurate position of the receiver produces more accurate results. Thus, the
teachings of Banbrook are pertinent to the particular problem, namely
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improving the accuracy of the subsurface map created from the collected
data. Therefore, Banbrook is analogous art that is within the scope of the
content of the prior art.
Fourth, Appellants challenge the Examiner’s rationale to combine
Banbrook and Vandenbroucke by arguing that the rationale “. . . so that the
positions will be known for processing the data acquired” (App. Br. 17), is
already taught by each reference. This argument misconstrues the
Examiner’s findings. The Examiner finds
It would have been obvious to one of ordinary skill
in the art of geophysics at the time of the invention
to modify the system of Banbrook with the short
baseline or ultrashort baseline acoustic positioning
systems of Vandenbroucke since such a
modification would have improved the accuracy
of the locations determined for the survey
components, thus improving the accuracy of the
subsurface map created from the collected data.
Ans. 5, emphasis added. Thus, the argument that each reference teaches
determining the position of the seismic survey object ignores the Examiner’s
rationale to combine the references. Appellants present no evidence or
arguments to counter the Examiners rationale “to improve accuracy.” Thus,
Appellants have not identified any error in the Examiner’s rationale to
combine Banbrook and Vandenbroucke.
Finally, Appellants argue there would be no expectation of success
because “[b]oth Banbrook et al. and Vandenbrou[c]ke already affirmatively
state that their respective technique provide[s] position determination and
represents their technique as complete. Neither Banbrook et al. nor
Vandenbroucke suggests any deficiencies that might be cured by combining
their technique with another.” App. Br. 18. The Examiner finds “[i]t is
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reasonable to expect that a combination of two functioning positioning
systems would produce a third positioning system which would work at least
as well, and probably better, than each individual system alone.” Ans. 27.
We agree with the Examiner, there is no reason to believe that combining
two positioning systems would produce an unsuccessful outcome.
Appellants have not apprised us of any error in the Examiner’s finding that
using two positioning systems would “increase accuracy” of the locations
determined for the survey components.
For the Above reasons, we sustain the rejection of claim 1, and the
rejection of claims 2-5, 7, 8, 10-19, 21-30, and 32-69 which fall with claim
1.

Obviousness over Banbrook, Vandenbroucke, and Ambs
Addressing claim 6, Appellants repeat the above arguments related to
the deficiency of the combination of Banbrook and Vandenbroucke. App.
Br. 18-19. No separate arguments are presented related to the Ambs
reference. As there is no deficiency in the combination of Banbrook and
Vandenbroucke, we sustain the rejection of claim 6 as unpatentable over
Banbrook, Vandenbroucke, and Ambs.

Obviousness over Banbrook, Vandenbroucke, and Burke
Addressing claims 9, 20, and 31, Appellants repeat the above
arguments related to the deficiency of the combination of Banbrook and
Vandenbroucke. App. Br. 19. No separate arguments are presented related
to the Burke reference. As there is no deficiency in the combination of
Banbrook and Vandenbroucke, we sustain the rejection of claims 9, 20, and
31 as unpatentable over Banbrook, Vandenbroucke, and Burke.
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DECISION
For the above reasons, the Examiner’s rejections of claims 1-69 are
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)(1)(iv).

AFFIRMED

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