Maersk Olie og Gas A/S

Patent Trials and Appeals Board

Sep 21, 2021

2020003747 (P.T.A.B. Sep. 21, 2021)

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.
15/863,398 01/05/2018 Wilhelmus Hubertus Paulus Maria HEIJNEN 13079-84 (P8090278US02) 6697
757 7590 09/21/2021
Crowell/BGL
P.O. BOX 10395
CHICAGO, IL 60610
EXAMINER
GIRMA, FEKADESELASS
ART UNIT PAPER NUMBER
2689
MAIL DATE DELIVERY MODE
09/21/2021 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte WILHELMUS HUBERTUS PAULUS MARIA HEIJNEN and
ROBERT BOUKE PETERS
___________

Appeal 2020-003747
Application 15/863,398
Technology Center 2600
____________

Before ERIC B. CHEN, MICHAEL J. STRAUSS, and
CHARLES J. BOUDREAU, Administrative Patent Judges.

STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–10, 15–19, 41–43 and 53–58. Final Act. 1.
Claims 1 and 58 are independent. Appeal Br. 21, 26 (Claims App.).
Appellant cancels claims 11–14 and 21–38. Amendments were filed
January 5, March 27, and July 9 of 2018. The Examiner indicates claims 20,
39, 40, and 44–52 are allowable. Final Act. 1, 14. We have jurisdiction

1 We refer to the Specification, filed January 5, 2018, as amended March 27,
2018, and April 16, 2018 (“Spec.”); Final Office Action, mailed April 4,
2019 (“Final Act.”); Appeal Brief, filed January 30, 2020 (“Appeal Br.”);
Examiner’s Answer, mailed February 18, 2020 (“Ans.”); and Reply Brief,
filed April 20, 2020 (“Reply Br.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42.
Appellant identifies the real party-in-interest as Total E & P Danmark A/S.
Appeal Br. 2.
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under 35 U.S.C. § 6(b).
We affirm in part.
STATEMENT OF THE CASE
The claimed systems and methods relate to a downhole apparatus
used, for example, in a drilled bore of an underground or undersea
hydrocarbon well. Appeal Br. 2. “Examples of such downhole apparatus
include a tractor or a similar movable downhole device configured to be
moved through a tubular channel such as a well in rock (or other) formations
in the Earth, such as an open hole completion well.” Id.
Independent claims 1 and 58, reproduced below with formatting
altered and claim element labels added, are illustrative.
1. A downhole apparatus configured to move through a well in
rock for operation in a drilled bore, the downhole apparatus
configured to be installed temporarily or permanently in the
drilled bore, the apparatus comprising[:]
[(i)] a first part and
[(ii)] a second part movably connected to the first part,
[(iii)] wherein the first and second parts are configured to
move independently of one another through the well in a
coordinated manner to facilitate movement of the apparatus
through the well,
[(iv)] wherein the second part comprises
[(a)] a first electronic device configured to generate a
data signal and
[(b)] a first communications device for wirelessly
transmitting the generated data signal via a wireless
communications channel,
[(v)] wherein the first part comprises
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a second communications device for wirelessly
receiving the transmitted data signal via said wireless
communications channel.
Appeal Br. 21 (Claims App.).
58. A method for communicating data between a first part and
a second part of an apparatus operating in the drilled bore, the
second part of the apparatus being connected to the first part of
the apparatus, the method comprising:
[(i)] - generating a data signal by a first electronic device
comprised in the second part; [and]
[(ii)] - wirelessly transmitting the generated data signal from
a first communications device comprised in the second part
via a wireless communications channel to a second
communications device comprised in the second part.
Id. at 26.
REFERENCES AND REJECTIONS
The Examiner relies upon the following references:
Name3 Reference Publ’d/Issued Filed
Bloom US 2002/0029908 Al Mar. 14, 2002 July 26, 2001
Thomeer US 2002/0050930 Al May 2, 2002 Nov. 5, 2001
The Examiner rejects claims 1–10, 15–19, 41–43, and 53–58 under
35 U.S.C. § 103(a) as obvious over the combined teachings of Thomeer and
Bloom. Final Act. 2–14.
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the contentions and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential). The Examiner and Appellant focus their findings and

3 All reference citations are to the first named inventor only.
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contentions, respectively, on claims 1, 2, 5, 42, 43, and 58 (see Appeal Br.
10–19; Ans. 3–16); so we do as well. Arguments not made are forfeited.4
Except in connection with the rejections of claims 5, 42, and 43, and unless
otherwise indicated, we adopt the Examiner’s findings in the Final Office
Action, Advisory Action, and the Answer as our own and add any additional
findings of fact for emphasis. We address the rejections below.
ANALYSIS
A. Claim 1
The Examiner finds Thomeer’s disclosure of a positionable downhole
tool having a transponder adapted to detect an identification code from a
nearby transponder attached to an structure positioned in a wellbore teaches
or suggests the majority of limitations recited by claim 1 except that
“Thomeer does not explicitly disclose a first part and a second part movably
connected” (i.e., claim 1’s element ii). Final Act. 3–4 (citing Thomeer
¶¶ 47, 86; Fig. 4). Addressing the noted deficiency, the Examiner finds
Bloom’s disclosure of an electrically sequenced tractor (EST) for controlling
the motion of a downhole drilling tool in a borehole, the EST including
assemblies connected by flexible connectors, teaches or suggests claim
element ii. Id. at 4 (citing Bloom Figs. 73A, 73B). Further, the Examiner
finds that a person of ordinary skill in the relevant art would have had reason

4 See In re Google Tech. Holdings LLC, 980 F.3d 858, 863 (Fed. Cir. 2020)
(“We interpret the Patent Office to be arguing that Google’s failure to raise
its lexicography arguments, inadvertent or not, compels a finding of
forfeiture.”); 37 C.F.R. § 41.37(c)(1)(iv) (2019) (“Except as provided for in
§§ 41.41, 41.47 and 41.52, any arguments or authorities not included in the
appeal brief will be refused consideration by the Board for purposes of the
present appeal.”).
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to combine the teachings of Thomeer with those of Bloom to achieve this
limitation. Id.
Appellant contends the rejection is deficient, arguing as follows:
1. Thomeer’s tool 53 is moveable within tubing string 50 only after
tubing string 50 is placed in position within a drilled bore, such
that there is no teaching of first and second parts moving through a
well together. Appeal Br. 13.
2. “[I]t would not have been obvious . . . to have tubing string 50 and
tool 53 move together through a well in that it would probably lead
to the tool 53 colliding with the inner wall of the tubing string 50,”
thereby damaging the apparatus. Id. at 13–14.
3. “Since Bloom[’s] EST 100 does not need to travel within a man-
made tube and there is no need to use transducers to position the
drill bit of Bloom . . . at a particular position, there is no clear
reason given in Bloom . . . to alter Thomeer . . . to have EST
100 . . . travel in tubing string 50.” Id. at 15.

4. “Since Thomeer . . . discloses wireless transmission of signals
between the unattached structures of the tubing string 50 and the
tool 53, there is no clear reason to apply such wireless
communication teaching to replace the wires of Bloom” which
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would also “require undue experimentation to provide a desired
result.” Id. at 16.
We address Appellant’s contentions of Examiner error as follows.
1. First and Second Parts Move Through the Well Together
Appellant argues as follows:
[T]he Examiner[] . . . ignores claim 1’s recitation that [“]the first
and second part are configured to move independently of one
another through the well in a coordinated manner to facilitate
movement of the apparatus through the well” . . . Such language
means that the first part and the second part move through the
well together. That is not the case regarding [Thomeer’s] tubing
string 50 and the tool 53. As described previously, after the
drilled bore of the well is formed, the tubing string 50 is placed
in position within the drilled bore. The tool 53 is not used during
such positioning within the drilled bore. The tool 53 is certainly
not within the drilled bore nor the tubing string 50 while the
tubing string 50 is being positioned/moved within the drilled
bore.
Id.at 12.
In response, the Examiner explains claim 1’s “first part corresponds to
[Thomeer’s] tubing string 50 and [the recited] second part corresponds to
tool 53 which is moving inside the tubing string 50.” Ans. 5. The Examiner
finds Thomeer discloses tubing string 50 moves independently of tool 53
“when the drill hole is getting deeper inside as the earth (axially) when the
hole is drilled further down.” Id. The Examiner further finds Thomeer
discloses both (1) locking together landing nipple 12 (corresponding to the
recited first part) and wireline lock 32 (corresponding to the recited second
part), where wireline lock 32 “is axially movable along a vertical axis of the
wellbore,” and (2) axial displacement of landing nipple 12 in a wellbore
while maintaining wireline lock 32 at a selected axial position in the well
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bore. Id. (citing Thomeer ¶ 61; Fig. 3). Thus, according to the Examiner,
Thomeer discloses claim 1’s limitation of first and second parts “configured
to move independently of one another through the well in a coordinated
manner to facilitate movement of the apparatus through the well.” Id.
Appellant’s argument is unpersuasive of reversible Examiner error.
We note Appellant’s argument that Thomeer fails to teach first and second
parts moving together through a well is not commensurate in scope with
claim 1, which only recites independent movement of the parts in a
coordinated manner to facilitate movement of the apparatus through a well.
Thus, Appellant’s argument “fail[s] from the outset because . . . [it is] not
based on limitations appearing in the claims.” See In re Self, 671 F.2d 1344,
1348 (CCPA 1982). Although claim 1 further requires the second part to be
movably connected to the first part, this additional language does not clearly
require that the two parts move together as argued. Instead, we agree with
the Examiner in finding Thomeer’s disclosure of the positioning of wirelock
32 relative to landing nipple 12 teaches or suggests the limitation of claim
element (iii), i.e., independent motion through the well in a coordinated
manner to facilitate movement of the apparatus through the well.
Furthermore, even if we were to accept Appellant’s narrow
construction, we nonetheless find, for the reasons explained by the
Examiner, that Thomeer teaches or suggests both independent and joint
movement (movement together) of first and second parts of a downhole
apparatus. See Ans. 5. Additionally, Bloom’s EST, having parts connected
by flexible connectors, further teaches or suggests the argued feature of parts
moving together. See Final Act. 4, Bloom ¶ 146 (“Aft packerfoot 104, aft
propulsion cylinders 108 and 110, and connectors 120 and 122 are
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assembled together end to end and are all axially slidably engaged with shaft
118.”)).
2. Thomeer’s Movement of Tool 53 While Inside Tubing String 50
Would Result in Damage to the Apparatus
Appellant argues one skilled in the art would not interpret Thomeer as
teaching movement of tool 53 (claim 1’s “second part”) within and together
with tubing string 50 (claim 1’s “first part”) because the two parts would
probably collide with resulting damage to the apparatus. Appeal Br. 13–14.
This argument is unpersuasive because, once again, it is based on the
parts moving together, a requirement that is not recited by claim 1. The
argument is further unpersuasive because it is speculative attorney argument
that is not supported by sufficient evidence. Mere attorney argument and
conclusory statements unsupported by factual evidence are entitled to little
probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re
De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Attorney argument is not
evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can such
argument take the place of evidence lacking from the record. Still further,
Appellant’s argument is unpersuasive because Bloom’s EST with assemblies
connected by flexible connectors teaches or suggests the argued feature of
parts moving together.
3. There Is No Reason According to Bloom to Modify Thomeer to
have Bloom’s EST Travel in Thomeer’s String 50
Appellant argues, because “Bloom . . . has no need for positioning a
tool adjacent to a particular position,” Bloom’s EST “has no structure for
receiving signals from Thomeer[’s] . . . transducers.” Appeal Br. 14–15.
Appellant further argues there is no reason to replace Bloom’s wired
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connections internal to EST 100 with Thomeer’s wireless communication
link between unattached structures, and, in any case, such modification
would require undue experimentation and have unpredictable results. Id.
In response the Examiner explains the “Bloom reference [is] cited to
show how it is obvious to have a first part and second part movably
connected using different methods,” i.e., to modify Thomeer’s unattached
structures to make them movably connected.
Appellant’s argument is unpersuasive of reversible Examiner error.
Initially, we disagree with Appellant’s characterization of Thomeer’s
structures as being unattached to each other. Appeal Br. 14–15. Instead,
Thomeer discloses “downhole tool (e.g., the wireline lock 32) [is] positioned
at a selected location in a wellbore . . . by, for example, [wireline lock 32’s]
locking tab 36 connection to the locking recesses 38 formed in a tubing
string (e.g., in the landing nipple 12).” Thomeer ¶ 61 (see also ¶ 62 (“If the
detected identification code matches a reference code, the landing nipple
may be operated so that the radial locking mechanism engages the downhole
tool and locks the downhole tool in position in the wellbore.”)). Thus,
Thomeer discloses the two structures may be connected or locked together
and thereby attached to each other.
We are also unpersuaded the combination is improper by Appellant’s
argument that “there is no clear reason given in Bloom . . . to alter
Thomeer . . . to have EST 100 to travel in tubing string 50.” Appeal Br. 15
(emphasis added). “It has long been the law that the motivation to combine
need not be found in prior art references, but equally can be found ‘in the
knowledge generally available to one of ordinary skill in the art.’” Nat’l
Steel Car, Ltd. v. Canadian Pacific Ry., Ltd., 357 F.3d 1319, 1337 (Fed. Cir.
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2004) (quoting In re Jones, 958 F.2d 347, 351 (Fed. Cir. 1992)). Instead, all
that is required is that “rejections on obviousness grounds . . . must [include]
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006), cited with approval in KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
418 (2007). Herein Appellant fails to identify error in the Examiner’s
finding that:
it would have been obvious . . . to incorporate the Electrically
sequenced tractor of Bloom into Thomeer in order to provide an
improved downhole drilling tractor and provide a tractor for
moving within a borehole, which is capable of an exceptionally
fast response to variations in load exerted on the tractor by the
borehole or by external equipment such as a bottom hole
assembly or drill string.
Final Act. 4.
Appellant’s argument that there is no reason to replace Bloom’s wired
connections internal to EST 100 with Thomeer’s wireless communication
link is unpersuasive because it fails to address the Examiner’s findings by
reversing the order of the combination. That is, by arguing it would not be
obvious to modify Bloom to incorporate Thomeer’s wireless connection,
Appellant’s argument does not address the Examiner’s finding that it would
have been obvious to instead modify Thomeer (not Bloom) to incorporate
Bloom’s (not Thomeer’s) teaching of a second part movably connected to a
first part of a downhole apparatus. See Final Act. 4.
We are also unpersuaded by Appellant’s conclusory contention that
the combination “would require undue experimentation to provide a desired
result and so the replacement would lead to unpredictable results” (Appeal
Br. 16). “Attorneys’ argument is no substitute for evidence.” Johnston v.
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IVAC Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989). Moreover, we have
been instructed that “[a] person of ordinary skill is also a person of ordinary
creativity, not an automaton.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398,
421 (2007). Here, Appellant does not explain why a skilled person would
require “undue experimentation” to arrive at the claimed invention or why
the result of the combination would lead to unpredictable results.
Consequently, we are not persuaded that Examiner errs in combining
the teachings of Thomeer and Bloom or in finding the resultant combination
teaches or suggests the limitations of independent claim 1.
For the reasons discussed above, Appellant’s contentions in
connection with the rejection of claim 1 are unpersuasive of reversible
Examiner error. Accordingly, we sustain the rejection of claim 1 under
35 U.S.C. § 103(a) as obvious over the combined teachings of Thomeer and
Bloom. We further sustain the rejection of independent claim 58, which is
argued on the same basis as claim 1 (Appeal Br. 19), together with the
rejection of dependent claims 3, 4, 6–10, 15–19, 41, and 53–57, which are
not argued separately with particularity (id. at 16).
B. Claim 2 – Sensor Signal Indicative of a Measured Property
Claim 2 reads as follows:
2. The apparatus according to claim 1, wherein the data signal is
a sensor signal, and wherein the first electronic device is a sensor
for generating a sensor signal indicative of a measured property.
Appeal Br. 21 (Claims App.).
The Examiner finds Thomeer’s disclosure of using transponders
positioned at known positions to provide “a relatively precise measurement
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of a depth of a downhole tool” teaches or suggests the limitation of claim 2.
Final Act. 4–5 (citing Thomeer ¶ 72; Fig. 4).
Appellant argues that, rather than perform a measurement, Thomeer’s
transponders only identify a code. Appeal Br. 16–17. The Examiner
responds, finding “[t]he signal transmitted from the transponder is related to
measuring the depth of the downhole tool,” where “[d]epth is one of the
characteristic[s] to ascertain the extent, dimensions, quantity and capacity of
especially by comparison with a standard.” Ans. 13.
Appellant’s argument is unpersuasive of reversible Examiner error.
Appellant’s Specification discloses “[e]xamples of . . . a sensor [installed in
one of the parts of the apparatus and indicative of a measured property] may
include . . . a position detecting device.” Spec. 6:17–18, 24; 7:2. Because
Thomeer’s transponders indicate when wirelock 32 is positioned at known
positions within landing nipple 12, we agree with the Examiner in finding
Thomeer teaches or suggests the disputed sensor signal indicative of a
measured property, i.e., position. Accordingly, we sustain the rejection of
claim 2 under 35 U.S.C. § 103(a) as obvious over the combined teachings of
Thomeer and Bloom.
C. Claim 5 – A Controllable Function includes a Relative Movement of
the First and Second Parts
Claim 5 reads as follows:
5. The apparatus according to claim 4, wherein the controllable
function [controlled by a control signal generated by a control
unit of a second electronic device of the first part] includes a
relative movement of the second part relative to the first part.
Appeal Br. 22 (Claims App.) (limitations of intervening claims 3 and 4
shown in bracketed text). The Examiner finds Thomeer’s disclosure of a
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processor adapted to operate a downhole tool if an identification code
detected by a transponder matches a reference code teaches or suggests the
limitation of claim 5. Final Act. 5–6 (citing Thomeer ¶ 14).
Appellant argues, “[w]hile paragraph 0014 of Thomeer . . . states that
a transponder moves through the wellbore, paragraph 0014 and the
remainder of Thomeer . . . are silent regarding a control unit that controls
relative movement in the manner recited in claim 5.” Appeal Br. 17.
Appellant’s argument is persuasive of reversible Examiner error. The
cited paragraph of Thomeer discloses, “[a] processor is operatively coupled
to the at least one second non-acoustic transponder and is adapted to
compare the identification code to a reference code and operate the
downhole tool if the identification code matches the reference code.”
Thomeer ¶ 14. Thus, when a tool is in a desired position, some operation of
the tool may be performed. However, we find no disclosure by Thomeer
that the operation involves movement of the tool as required by claim 5.
Accordingly, we do not sustain the Examiner’s rejection claim 5 under
35 U.S.C. § 103(a).
D. Claim 42 – A Controllable Function includes a Relative Movement of
the First and Second Parts
Claim 42 reads as follows:
42. The apparatus according to claim 41, wherein the apparatus
further comprises an acoustic modem communicatively coupled
to the control unit such that the control unit is configured to
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transmit [data5] received from the at least [one6] sensor to a
receiver at an entrance of the drilled bore.
Appeal Br. 25 (Claims App.)
The Examiner finds Thomeer’s disclosure of a processor responsive to
instructions relayed from the surface teaches or suggests the disputed
limitation. Final Act. 12 (citing Thomeer ¶ 103). Appellant argues, “[t]here
is no mention of using an acoustic modem in the [cited] paragraph [of
Thomeer].” Appeal Br. 18. In response, the Examiner finds Thomeer
discloses the use of a non-acoustic transponder deployed in the wellbore.
Ans. 15 (citing Thomeer ¶ 103; Fig. 19).7
Appellant’s argument is persuasive of reversible Examiner error for
failure of the Examiner to provide evidence of Thomeer’s teaching of an

5 Although claim 42 recites that the control unit is “configured to transmit
date” (emphasis added), for purposes of this appeal we consider the
recitation as including an obvious typographical error wherein the word
“date” should read as “data,” consistent with Appellant’s Specification. See,
e.g., Spec. 28:1–4 (“In an embodiment, the device 100 may further comprise
an acoustic modem enabling the device 100 to transmit data received from
one or more of the sensors F to a computer or the like equipped with an
acoustic modem and positioned at the entrance of the tubular channel 199.”).
Appellant should consider making or the Examiner may choose to require
appropriate correction prior to issuance.
6 For purposes of this appeal, we consider the recitation in claim 42 of “at
least on sensor” to be an obvious typographical error that should read as “at
least one sensor.” Appellant should consider making or the Examiner may
choose to require appropriate correction prior to issuance.
7 The Examiner’s response appears to be unintentionally truncated, the text
including what appears to be the beginning of an unfinished sentence that
reads as follows: “And Thomeer also discloses in ¶ 0050 as.” Nonetheless,
although paragraph 50 describes an alternative use of optical transponders,
there is no mention of the disputed acoustic modem.
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acoustic modem. Accordingly, we do not sustain the Examiner’s rejection
of claim 42 under 35 U.S.C. § 103(a).
E. Claim 43 – An Actuator-Activated Lever Attached at One End to an
Outer Side of the Apparatus
Claim 43 reads as follows:
42. The apparatus according to claim 1, further comprising at
least one directional means comprising a lever attached at one
end to an outer side of the apparatus and activated by an actuator
attached at one end to the outer side of the apparatus and the other
end to the lever.
Appeal Br. 25 (Claims App.)
The Examiner finds Thomeer’s disclosure of internal protrusions 31
that serve to change a direction of motion of drop ball 28 teach or suggest
the recited lever. Final Act. 12 (citing Thomeer ¶ 50; Figs. 1, 1A).
Appellant argues, “[a] review of the Figures and the [cited] paragraph do not
reveal any lever as recited in claim 43.” Appeal Br. 19.
Appellant’s argument is persuasive of reversible Examiner error. In
particular, we are unable to find any disclosure in Thomeer of the structures
referenced by the Examiner (e.g., tool chassis 12, antenna 16, and chamber
26) for teaching the disputed limitation or determine why the Examiner finds
such structures, if disclosed, would teach an actuator-activated lever.
Accordingly, we do not sustain the Examiner’s rejection of claim 43 under
35 U.S.C. § 103(a).
CONCLUSION
We affirm the Examiner’s rejection of claims 1–4, 6–10, 15–19, 41,
and 53–58 as obvious over the combined teachings of Thomeer and Bloom.
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We reverse the Examiner’s rejection of claims 5, 42, and 43 as
obvious over the combined teachings of Thomeer and Bloom.

DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–10, 15–19,
41–43, 53–58
103(a) Thomeer, Bloom 1–4, 6–10,
15–19, 41,
53–58
5, 42, 43
TIME PERIOD 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) (2019).

AFFIRMED IN PART