Lecocq, Paul

Patent Trials and Appeals Board

May 11, 2020

13895179 - (D) (P.T.A.B. May. 11, 2020)

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.
13/895,179 05/15/2013 Paul Lecocq PGS-12-56US 1059
137491 7590 05/11/2020
OLYMPIC PATENT WORKS PLLC
P.O. BOX 4277
SEATTLE, WA 98104
EXAMINER
CROHN, MARK I
ART UNIT PAPER NUMBER
2857
NOTIFICATION DATE DELIVERY MODE
05/11/2020 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
joanne@olympicpatentworks.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL LECOCQ
Appeal 2019-001235
Application 13/895,179
Technology Center 2800
BEFORE CATHERINE Q. TIMM, CHRISTOPHER C. KENNEDY, and
BRIAN D. RANGE, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant,1 appeals from the
Examiner’s decision to reject claims 1–31. The Examiner rejects claims 1–
31 under 35 U.S.C. § 101 as patent ineligible and under 35 U.S.C. § 103 as
obvious. Final Act. 9–22. We have jurisdiction under 35 U.S.C. § 6(b).
Because we sustain the 35 U.S.C. § 101 rejection, we AFFIRM.

1 We use the word “Appellant” to refer to “Applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as PGS
Geophysical AS. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The claims are directed to an improvement in a process for monitoring
a petroleum reservoir of a subterraneous formation (see, e.g., claim 1), a
computer system used to perform the monitoring (see, e.g., claim 9), a non-
transitory computer-readable medium having machine-readable instructions
encoded thereon for enabling one or more processors of a computer system
to perform the monitoring (see, e.g., claim 17), and a method for generating
a geophysical data product (see, e.g., claim 25). The body of each
independent claim recites steps of manipulating data sets (generating
reconstructed monitor data sets, computing 4D difference data sets, and
extracting 4D signal data). Claim 25 is representative:
25. A method for generating a geophysical data product,
the method comprising:
processing monitor data sets using a programmable
computer that is programmed to generate the geophysical data
product, wherein the processing includes retrieving a first
monitor data set from one or more computer-readable media;
retrieving a second monitor data set from the one or more
computer-readable media;
generating a reconstructed first monitor data set at source
and receiver locations of a second monitor data set;
generating a reconstructed second monitor data set at
source and receiver locations of the first monitor data set;
computing two different four-dimensional (“4D”)
difference data sets from the first monitor data set, the
reconstructed first monitor data set, the second monitor data set,
and the reconstructed second monitor data set;
extracting 4D signal data common to the 4D difference
data sets; and
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generating an image of the subterranean formation using
at least in part the common 4D signal data, the image
representing changes in the petroleum reservoir between the
first and second surveys.
Appeal Br. 40–41 (Claims Appendix).

REFERENCES
Name Reference Date
El Ouair US 2008/0195358 A1 Aug. 14, 2008
Schonewille US 2009/0231956 A1 Sept. 17, 2009
Hegge US 2010/0329079 A1 Dec. 30, 2010
Manning Ted Manning et al.,
Quantifying and
increasing the value of
multi-azimuth seismic
The Leading Edge,
510–512, (2007)
2007

REJECTIONS
The Examiner maintains the following rejections:
1. Claims 1–31 under 35 U.S.C. § 101 as patent ineligible;
2. Claims 1, 4, 5, 7–9, 12, 13, 15–17, 20–22, 24–26, 29, and 30 under
35 U.S.C. § 103 as unpatentable over El Ouair in view of Hegge;
3. Claims 2, 3, 10, 11, 18, 19, 27, and 28 under 35 U.S.C. § 103 as
unpatentable over El Ouair in view of Hegge and Schonewille; and
4. Claims 6, 14, 23, and 31 under 35 U.S.C. § 103 as unpatentable
over El Ouair, Hegge, Schonewille, and Manning.
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OPINION
Patent Eligibility
The Examiner rejected claims 1–31 under 35 U.S.C. § 101,
determining them ineligible 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 in the claim(s) than the abstract idea itself.”
Final Act. 9.
Use of Office Guidance
There is a threshold issue we address first. The Examiner analyzed the
question of patent eligibility using the 2014 Interim Guidance on Patent
Matter Eligibility, 79 Fed. Reg. 74618 (Dec. 16, 2014) (2014 Guidance).
Final Act. 9. The issue is whether the Examiner reversibly erred in relying
on the 2014 Guidance “because the Federal Register, like the MPEP, does
not have force of law.” Appeal Br. 6.
Appellant’s argument has little merit. As pointed out by the Examiner,
although the 2014 Guidance does not have the force of law, it reflects the
USPTO’s expert understanding of the applicable statute and case law.
Ans. 6. As stated in the 2014 Guidance, “[r]ejections will continue to be
based upon the substantive law, and it is these rejections that are
appealable.” Id. at 74619, col. 3, first full para. To the extent any Office
guidance “contradicts or does not fully accord with [Federal Circuit]
caselaw, it is [Federal Circuit] caselaw, and the Supreme Court precedent it
is based upon, that must control.” In re Rudy, No. 2019-2301, 2020 WL
1966855, at *2 (Fed. Cir. Apr. 24, 2020). Using Office guidance as
scaffolding for the analysis is not itself an error.

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To identify an error in the Examiner’s rejection, Appellant must
substantively respond to the merits of the Examiner’s rejection, i.e., identify
an error in the fact findings, analysis, and conclusions of law critical for
supporting the rejection under the controlling law. See In re Jung, 637 F.3d
1356, 1363 (Fed. Cir. 2011) (holding that Appellant does not have “the right
first to procedurally challenge and appeal the prima facie procedural
showing before having to substantively respond to the merits of the
rejection.”). On the merits, we consider whether Appellant has identified an
instance in which the Examiner’s analysis is not in accord with the relevant
caselaw of the Supreme Court and Federal Circuit. The Federal Circuit
conducts this type of review. See Rudy, at *3 (“although a portion of the
Board’s analysis is framed as a recitation of the Office Guidance, in this
particular case the Board’s reasoning and conclusion are nevertheless fully
in accord with the relevant caselaw.”).
The Law on Eligibility
Appellant’s overarching argument on the merits is that the Examiner
has not properly applied the framework found in Alice Corp. Pty. v. CLS
Bank Int’l, 573 U.S. 208, 216 (2014) (Alice framework). Appeal Br. 7–22.
To provide context for Alice framework, we summarize the law as follows.
Patent eligibility is governed by § 101, which states that patents may
be granted for “any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof.”
35 U.S.C. § 101. Although the statutory language is expansive, the Supreme
Court has held that it “contains an important implicit exception: Laws of
nature, natural phenomena, and abstract ideas are not patentable.” Alice
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Corp. Pty. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Ass’n for
Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)).
As pointed out by Appellant, the primary concern behind the
exception is one of pre-emption. Appeal Br. 6; see Alice, at 216 (“We have
described the concern that drives this exclusionary principle as one of pre-
emption.”). This pre-emption concern is a “concern that patent law not
inhibit further discovery by improperly tying up the future use of [the]
building blocks of human ingenuity,” i.e., laws of nature, natural
phenomena, and abstract ideas. Id. (citation omitted). “‘[M]onopolization of
those tools through the grant of a patent might tend to impede innovation
more than it would tend to promote it,’ thereby thwarting the primary object
of the patent laws.” Id., (quoting Mayo, at 70 and citing U.S. Const., Art. I,
§ 8, cl. 8 (Congress “shall have Power . . . . To promote the Progress of
Science and useful Arts”)). The key is to distinguish between claims tying
up those “building blocks of human ingenuity” and claims to an invention
that integrates the building blocks into something more, thereby
transforming them into a patent-eligible invention. Alice, at 217.
To distinguish between claims that improperly pre-empt the building
blocks of human ingenuity (ineligible claims) and those that integrate the
building blocks into something more (eligible claims), the Supreme Court
has devised a two-step framework. Alice at 217–218 (citing Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012)) (Alice/Mayo framework).
The first step in that framework involves determining “whether the
claims at issue are directed to one of those patent-ineligible concepts,” such
as an abstract idea. Alice, 573 U.S. at 217 (emphasis added). The Federal
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Circuit has alternately described this inquiry as “looking at the ‘focus’ of the
claims.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed.
Cir. 2016) (quoting Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335–
36 (Fed. Cir. 2016)).
If the claims are directed to an ineligible concept, i.e., if they focus on
one of the building blocks of human ingenuity, such as an abstract idea, we
move to step two and “consider the elements of each claim both individually
and ‘as an ordered combination’ to determine whether the additional
elements ‘transform the nature of the claim’ into a patent-eligible
application.” Alice, at 217 (quoting Mayo, at 77–78). This step represents “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.’” Id. at
217–18 (quoting Mayo, 566 U.S. at 72–73) (internal quotations and
alterations omitted).
The Patent Office’s 2019 Guidance terms the “directed to” question
Step 2A and divides the analysis into two prongs. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“2019
Guidance”); October 2019 Patent Eligibility Guidance Update, 84 Fed. Reg.
55942 (Oct. 18, 2019) (available at (https://www.uspto.gov/Patent
Eligibility) (“October 2019 Update”). In Prong 1, we determine whether the
claim recites one of the abstract ideas discussed in Section I of the 2019
Guidance, which lists mathematical concepts, certain methods of organizing
human activity, such as a fundamental economic practice, and mental
processes. 2019 Guidance, 84 Fed. Reg., at 54 (§ III.A.1). A claim that
includes one of these abstract ideas must be further reviewed in Prong 2 to
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determine whether the claim integrates the abstract idea into a practical
application by imposing a meaningful limit on the judicial exception. 2019
Guidance, at 54 (§ III.A.2).
Alice Step One
Appellant contends that the Examiner has not properly applied the
first step of the Alice framework. Appeal Br. 8–10.
First, Appellant contends that the Examiner did not explain what
fundamental building block of human ingenuity would be prohibited from
future use and “incorrectly identified the claims as a mathematical
algorithm.” Appeal Br. 8.
We disagree. The Examiner determines that the claims recite
mathematical concepts in the steps of generating reconstructed first and
second monitor data sets, computing 4D difference data sets, and extracting
4D signal data common to the 4D difference data sets. Final Act. 10.
Appellant does not dispute that “[t]he claims use mathematical formulas.”
Appeal Br. 8. There is no real question that the claims recite mathematical
concepts in accordance with Prong 1 of the 2019 Guidance.
Next we consider whether the claim integrates the abstract idea into a
practical application by imposing a meaningful limit on the judicial
exception as required by Prong 2 of the 2019 Guidance and consider the
“focus” of the claim to complete the Alice Step One analysis.
Appellant’s generating, computing, and extracting sets are performed
on a computer and the computer is merely a tool for performing the
mathematical calculation steps. See, e.g., claim 25 (stating the method as
comprising “processing monitor data sets using a programmable computer
that is programmed to” perform the steps); claim 17 (reciting the steps as
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operations performed by a computer system); claim 9 (having the steps
recited as part of a routine executed by processors). Using a generic
computer to implement a mathematical concept generally is not an
integration. See Mayo, 566 U.S. at 80, 84 (noting that the Court in Diehr
found “the overall process patent eligible because of the way the additional
steps of the process integrated the equation into the process as a whole,” but
the Court in Benson “held that simply implementing a mathematical
principle on a physical machine, namely a computer, was not a patentable
application of that principle”).
As to the focus of the claims, Appellant contends “[c]laims 1–31 are
directed to monitoring a production of a petroleum reservoir by generating
an image of a subterranean formation that represents changes in the
petroleum reservoir between first and second surveys.” Id.; see also Reply
Br. 3 (“The process, computer system, computer-readable medium, and
geophysical data product described in claims 1–31 are directed to new and
useful techniques for generating an image of a subterranean formation.”). In
other words, Appellant contends that the focus of the claims is on the
monitoring and image generating aspects of the process rather than on the
mathematical concepts.
Appellant’s argument is not persuasive. We determine that the so
called “new and useful techniques” reside in the mathematical calculations
of the data set generating, computing, and extracting steps. In claim 1, for
instance, the data gathering steps are recited in the Jepson preamble, which
provides evidence those data gathering steps were well-known in the art, and
the step of generating an image has no detail except for the recitation of the
use of the common 4D signal data extracted using the mathematical
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calculations. Claims 9, 17, and 25 provide further evidence that the
improvement is in the calculations. Claim 9 recites a computer system that is
a tool for performing mathematical calculations. Claim 17 recites a computer
readable medium with instructions for performing the calculations. Claim 25
recites a method for generating a geophysical data product, which involves
performing the calculations. Thus, the claims themselves are evidence that
they are focused on mathematical concepts and “directed to” an abstract
idea. See SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed.
Cir. 2018) (holding that claims to a “series of mathematical calculations
based on selected information” are directed to abstract ideas).
The Specification provides further evidence to support the Examiner’s
“directed to” determination. See, e.g., Spec. ¶ 18 (“Computational methods
and systems for monitoring a petroleum reservoir below a marine
environment are described.”) (emphasis added); Spec. ¶ 46 (disclosing
reconstruction as involving interpolation and anti-leakage Fourier
reconstruction); Spec. ¶ 48 (describing computing 4D differences using
equations (1) and (2)). These mathematical computational steps are used
“[i]n order to obtain accurate images of the 4D difference.” Spec. ¶ 42.
The step of generating an image is focused on using the data from the
mathematical calculations, i.e., “using at least in part the common 4D signal
data” to generate the image. Claims 1, 9, 17, and 25, last step. The
Specification discusses the mathematical steps in detail, but provides almost
no detail on the step of generating an image beyond the use of the
mathematical steps. See Spec. ¶¶ 39–53 (discussing the steps of processing
the monitor data and only mentioning images once in the context of
conducting the monitor surveys as close as possible to the baseline survey).
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Further, the computer system of claim 9 is a tool for running the
computer program of claim 17 to generate the geophysical data product of
claim 25. We determine the focus is on the tasks for which a computer is
used in its ordinary capacity, i.e., as a tool for carrying out mathematical
calculations. For eligibility, “it is not enough . . . to merely improve a
fundamental practice or abstract process by invoking a computer merely as a
tool.” Customedia Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1364
(Fed. Cir. 2020).
Appellant has not identified a reversible error in the Examiner’s
determination that the claims are “directed to” an abstract idea in the form of
mathematical concepts.
Alice Step Two
Because the claims are directed to an abstract idea, we move to step
two of the Alice framework. Here, we consider whether an additional
element or combination of elements adds a specific limitation or
combination of limitations that are not well-understood, routine,
conventional activity in the field, which is indicative that an inventive
concept may be present or whether the element or whether the combination
instead appends well-understood, routine, conventional activities previously
known to the industry, specified at a high level of generality, to the judicial
exception, which is indicative that an inventive concept may not be present.
Alice, 573 U.S. at 221, 225; 2019 Guidance, at 56.
We determine that the combination appends well-understood, routine,
conventional elements and activities to the mathematical concepts recited in
the body of the claims.
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Claim 1 evinces that the surveying apparatus that performs the data
gathering was known in the art. The claim is in Jepson format with the
survey apparatus recited in the preamble.
Other than the fact that the step of generating an image uses the
common 4D signal data obtained from the data processing steps, we find
nothing unconventional about generating an image from seismic data. The
Specification does not describe generating an image with any kind of detail
that indicates it was unconventional outside of its use of the extracted data
set. Generating the image is a central goal of the conventional seismic
surveying process. See, e.g., El Ouair ¶ 6 (“Seismic reflection data obtained
by field experiments are then processed to obtain a three dimensional image
of subsurface structures as described above.”); Hegge ¶¶ 7–8 (explaining
that “[t]he goal of seismic data processing is to extract from the seismic data
as much information as possible regarding the subterranean formations in
order to adequately image the geologic subsurface.”).
A preponderance of the evidence supports the Examiner’s
determination that “[t]he presentation of mathematically processed data as
an image is well-understood, routine and conventional in the art and
describes a result rather than a detailed process of rendering the data as an
image.” Final Act. 11. Appellant has added conventional steps that do not
make the combination patentable. See Mayo, 566 U.S. at 82 (“[S]imply
appending conventional steps, specified at a high level of generality, to laws
of nature, natural phenomena, and abstract ideas cannot make those laws,
phenomena, and ideas patentable.”); Ericsson Inc. v. TCL Commc'n Tech.
Holdings Ltd., No. 2018-2003, 2020 WL 1856498, at *9 (Fed. Cir. Apr. 14,
2020) (“when a claim ‘does no more than require a generic computer to
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perform generic computer functions,’ as here, the claims lack an inventive
concept sufficient to demonstrate eligibility at step two.” (quoting Alice, 573
U.S. at 225)); Customedia Techs., 951 F.3d at 1366 (“[T]he invocation of
‘already-available computers that are not themselves plausibly asserted to be
an advance . . . amounts to a recitation of what is well-understood, routine,
and conventional.’” (quoting SAP, 898 F.3d at 1170). Stated another way,
the step of generating an image amounts to insignificant post-solution
activity that, when considered along with the other steps, does not transform
the abstract mathematical concepts into something patentable. Alice, at 1283;
see also Mayo, at 79 (quoting Diehr, at 191–92) (“The prohibition against
patenting abstract ideas cannot be circumvented by adding insignificant
post-solution activity” (internal quotation marks omitted)).
As determined by the Examiner, the improvement is found in the
abstract mathematical concept and, thus, remains ineligible. Ans. 9.
Although the collection of the data is limited to the environment of
monitoring a petroleum reservoir, “even if a process of collecting and
analyzing information is ‘limited to particular content’ or a particular
‘source,’ that limitation does not make the collection and analysis other than
abstract.” SAP, 898 F.3d at 1168 (citation omitted.).
We sustain the Examiner’s determination of ineligibility under
35 U.S.C. § 101.

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Obviousness
The Examiner rejects claims 1, 4, 5, 7–9, 12, 13, 15–17, 20–22, 24–
26, 29, and 30 as obvious over El Ouair in view of Hegge and adds further
prior art references to reject the remaining claims. Final Act. 12–22.
Appellant’s arguments focus on the rejection of claim 1. Appeal Br.
23. As the issues are the same for all the rejections, we select claim 1 as
representative for resolving those issues. But in selecting claim 1, we are
cognizant that claims 9, 17, and 25 are broader in the recitation of the
computing steps. Although claim 1 recites two separate steps, each taking
the difference between two specific data sets, claims 9, 17, and 25 are open
to computing the 4D difference data sets using any combination of the four
data sets.
The major dispute stems from the Examiner’s interpretation of the
computing steps of the independent claims as broad enough to encompass
the normalizing and data comparing steps taught or suggested by El Ouair in
view of Hegge. Compare Final Act. 12–16, and Ans. 28–40, with Appeal Br.
23–34, and Reply Br. 18–23.
We agree with Appellant that the Examiner’s findings with regard to
the computing steps falls short of supporting a conclusion of obviousness.
Although we agree with the Examiner that the combination of El Ouair and
Hegge suggests generating reconstructed monitor data sets and computing a
4D difference data set, a preponderance of the evidence fails to support the
Examiner’s finding of a suggestion for computing two different 4D
difference data sets using all four data sets recited in the claims and
extracting 4D signal data common to those two different 4D difference data
sets.
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In discussing the use of the difference data to indicate the reservoir
change over time, El Ouair refers to “the proper time-alignment during pre-
processing.” El Ouair ¶ 12. Hegge discloses that because source and receiver
locations in recorded data are seldom precisely coincident, it may be
necessary to “regularize the data sets to a nominal geometry” so that source
and receiver locations are coincident. Hegge ¶ 51. El Ouair describes
correctly positioning the data in space by a process called migration. El
Ouair ¶ 4. Both El Ouair and Hegge provide evidence that reconstruction of
the data was known in the art for aligning the data before computing a 4D
difference data set. As the Examiner says,
[t]he normalization/regularization is ‘necessary’ in the sense
that the original monitor data sets represent data situated in
different geographical locations (the first and second source and
receiver locations), so taking a ‘difference’ between the data
sets would not produce a sensible result until that they are
‘reconstructed’; that is, until they are normalized/regularized so
they both reflect data situated in a common geographical space.
Ans. 37.
The problem is that the Examiner has not established that the prior art
teaches or suggests “computing two different 4D difference data sets from
the first monitor data set, the reconstructed first monitor data set, the second
monitor data set, and the reconstructed second monitor data set” and
“extracting 4D signal data common to the 4D difference data sets.” Claims
9, 17, 25 (emphasis added). At best, El Ouair and Hegge suggest
reconstructing two data sets and taking the difference of the two
reconstructed data sets. The Examiner has not provided evidence or
technical reasoning sufficient to indicate that the ordinary artisan would
have used both non-reconstructed (monitor) and reconstructed data sets in
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the difference calculations and then extracted 4D signal data common to
those two 4D difference data sets.
The Examiner’s application of further prior art references to reject
dependent claims does not cure the deficiencies. Thus, we do not sustain any
of the Examiner’s obviousness rejections.

DECISION
Because we sustain the Examiner’s 35 U.S.C. § 101 rejection, the
Examiner’s decision to reject claims 1–31 is affirmed.

DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–31 101 Eligibility 1–31
1, 4, 5, 7–9,
12, 13, 15–
17, 20–22,
24–26, 29,
30
103 El Ouair, Hegge 1, 4, 5, 7–9,
12, 13, 15–
17, 20–22,
24–26, 29,
30
2, 3, 10, 11,
18, 19, 27,
28
103 El Ouair, Hegge,
Schonewille
2, 3, 10, 11,
18, 19, 27,
28
6, 14, 23, 31 103 El Ouair, Hegge,
Schonewille,
Manning
6, 14, 23, 31
Overall
Outcome
1–31

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TIME PERIORD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED