Patrice Guillaume et al.

Patent Trials and Appeals Board

Mar 3, 2020

14152217 - (D) (P.T.A.B. Mar. 3, 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.
14/152,217 01/10/2014 Patrice GUILLAUME 0336-240-2/100414 2724
11171 7590 03/03/2020
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404
EXAMINER
FAIRBANKS, BRENT ALAN
ART UNIT PAPER NUMBER
2862
NOTIFICATION DATE DELIVERY MODE
03/03/2020 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):
Mailroom@ppblaw.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PATRICE GUILLAUME and GILLES LAMBARE
Appeal 2019–000580
Application 14/152,217
Technology Center 2800
BEFORE JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and
MICHAEL G. MCMANUS, Administrative Patent Judges.
FRANKLIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–4, 7–15, and 18–20. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as CGG SERVICES
SA. Appeal Br. 2
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CLAIMED SUBJECT MATTER
Claim 1 is illustrative of Appellant’s subject matter on appeal
and is set forth below (text in bold identifying abstract ideas):

1. A method, stored in a memory and executed on a processor,
for minimizing a cost function associated with non-linear
tomography, said method comprising:
acquiring seismic data for exploring a geophysical
structure probed using seismic excitations;
adding a dip constraint term measuring mismatch
between expected dips according to a velocity model of the
geophysical structure, and migrated dips for selected offset
dependent events from the seismic data, to a cost function of
said nonlinear tomography;
adjusting said velocity model, by minimizing said cost
function associated with said non-linear tomography; and
outputting an adjusted velocity model, which provides
an image of the geophysical structure usable for assessing
presence of oil and gas.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Krebs US 5,696,735 Dec. 9, 1997
Grandi US 2012/0158382 A1 June 21, 2012
Patrice Guillaume et al., Kinematic Invariants: An Efficient and Flexible
Approach for Velocity Model Building 78th Annual SEG Meeting 2008

REJECTIONS
1. Claims 1–4, 7–15, and 18–20 are rejected under 35 U.S.C.
§ 112(a) or 35 U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply
with the written description requirement.
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2. Claims 1–4, 7–15, and 18–20 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.
3. Claims 1, 3, 12, 14, 15, and 18 are rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over Krebs in view of Grandi.
4. Claims 2, 10, 11, 13, 19, and 20 are rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over Krebs in view of Grandi and
further in view of Guillaume.
OPINION
Appellant does not present any substantively distinct arguments for
any dependent claims. See Appeal Br. passim. Therefore, consistent with the
provisions of 37 C.F.R. § 41.37(c)(1)(iv) (2013), we limit our discussion to
claim 1, and all other claims on appeal stand or fall together with claim 1.
37 C.F.R. § 41.37(c)(1)(iv) (2017).
Upon consideration of the evidence and each of the respective
positions set forth in the record, we find that the preponderance of evidence
supports the Examiner’s findings and conclusion that the subject matter of
Appellants’ claims are unpatentable over the applied art and for being
directed to patent-ineligible subject matter. We sustain each of the
Examiner’s rejections under 35 U.S.C. §§ 101 and 103(a) essentially for the
reasons set forth in the Final Office Action and in the Answer, and affirm.
However, with regard to the written description rejection under 35 U.S.C.
§ 112, 1st paragraph, we reverse for the reasons stated infra.

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Rejection 1
We agree with Appellant that there is adequate written description
support for the claims for the reasons provided on pages 4–6 of the Appeal
Brief. Therein, Appellant points to the Background section of the
Specification for disclosing how the generation of images (profile) is well
known in seismic data acquisition and processing techniques. Spec, [0003].
Appeal Br. 5. We thus reverse Rejection 1.

Rejection 2
A. Standard for Patent Ineligibility
With regard to the 35 U.S.C. § 101 rejection, we note that an
invention is patent-eligible if it claims a “new and useful process, machine,
manufacture, or composition of matter.” 35 U.S.C. § 101. However, the
Supreme Court has long interpreted 35 U.S.C. § 101 to include implicit
exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are
not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216
(2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See Alice, 573
U.S. at 219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
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in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 176; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . 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.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
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to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A
claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
The PTO published revised guidance on the application of § 101.
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“Guidance”). Under the Guidance, we first look to whether
the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h)).

Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, conventional” in the field (see
MPEP § 2106.05(d)); or
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(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Guidance.

B. Analysis
For the reasons stated below, and based on the findings and
analysis provided by the Examiner at pages 3–6 of the Final Office
Action and pages 5–17 of the Answer, we determine that claim 1 is
directed to an abstract idea and does not contain an inventive concept
sufficient to transform the claimed abstract idea into a patent-eligible
application. We therefore sustain the Examiner's rejection under 35
U.S.C. § 101.
1. Guidance Step 1
Under Step 1 of the Guidance, we consider whether the claimed
subject matter falls within one of the four statutory categories set forth in
§ 101, namely a “[p]rocess, machine, manufacture, or composition of
matter.” Guidance, 84 Fed. Reg. at 53—54; see 35 U.S.C. § 101. Claim 1
recites a “method” and, thus, falls within the “process” category.
Consequently, we proceed to the next step of the analysis.

2. Guidance Step 2A Prong 1
Under Step 2A Prong 1 of the Guidance, we evaluate “whether
the claim recites a judicial exception, i.e., an abstract idea, a law of
nature, or a natural phenomenon.” Guidance, 84 Fed. Reg. at 54; see
Alice, 573 U.S. at 216. Claim 1 recites a method for minimizing a cost
function associated with non-linear tomography involving the steps of
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(1) acquiring seismic data for exploring a geophysical structure probed
using seismic excitations; (2) adding a dip constraint term measuring
mismatch between expected dips according to a velocity model of the
geophysical structure, and migrated dips for selected offset dependent
events from the seismic data, to a cost function of said nonlinear
tomography; (3) adjusting said velocity model, by minimizing said cost
function associated with said non-linear tomography; and (4) outputting
an adjusted velocity model, which provides an image of the geophysical
structure usable for assessing presence of oil and gas. See Br. 19
(Claims Appendix).
Consistent with the Examiner’s analysis as set forth on pages 3–
6 of the Final Office Action, we determine that claim 1 recites a judicial
exception, i.e., an abstract idea. As stated by the Examiner (Final Act.
4), the highlighted portions of the claim (as highlighted in claim 1 on
page 2 of this decision and also on page 4 of the Final Office Action
(see the text in bold)) constitute an abstract idea (mathematical
concepts).
The mere fact, however, that claim 1 recites an abstract idea in
the form of mathematical concepts does not automatically render the
claim patent-ineligible. Diehr, 450 U.S. at 187 (“A claim drawn to
subject matter otherwise statutory does not become nonstatutory simply
because it uses a mathematical formula.”). Thus, we proceed to the Step
2A Prong 2 of the Guidance.
3. Guidance Step 2A Prong 2
Under Step 2A Prong 2 of the Guidance, we must “(a) [i]dentify
whether there are any additional elements recited in the claim beyond the
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judicial exception(s); and (b) evaluate those additional elements individually
and in combination to determine whether they integrate the exception into a
practical application.” Guidance, 84 Fed. Reg. at 54—55. Additional
elements that merely add insignificant extra-solution activity to an abstract
idea fail to integrate the abstract idea into a patent-eligible practical
application. See id. at 55.
We refer to page 5 of the Final Office Action wherein the Examiner
discusses the additional elements (the other elements recited in claim 1 that
are not in bold text (see page 2 of this decision having a copy of Appellant’s
claim 1). On the record before us, we determine that claim 1, as a whole,
does not integrate the judicial exception into a practical application.
Claim 1 includes the additional element of providing an image of the
geophysical structure usable for assessing presence of oil and gas. We agree
with the Examiner that this element is merely insignificant extra-solution
activity, such as outputting the result of the claimed algorithm, recited at a
high level of generality. Final Act. 5. Thus, this additional element does
not integrate the abstract idea into a practical application. Guidance, 84 Fed.
Reg. at 55, 55 n.31; MPEP § 2106.05(g).
Appellant’s arguments in the Appeal Brief (pages 6–14) do not reveal
reversible error in the Examiner’s analysis and findings in this regard.
Appellant’s contentions are not persuasive for the reasons stated by the
Examiner in the Answer. Ans. 5–17. We add that to the extent the
arguments are conclusory, we are unpersuaded by such argument. In re De
Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); see also In re Geisler, 116 F.3d
1465, 1470 (Fed. Cir. 1997) (explaining that mere lawyer’s arguments or
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conclusory statements, which are unsupported by concrete factual evidence,
are entitled to little probative value).
Having determined that claim 1 recites a judicial exception but the
additional elements recited in the claim do not integrate the judicial
exception into a practical application, i.e., the claim is directed to
mathematical concepts, we proceed to Step 2B of the Guidance.
4. Guidance Step 2B
Under Step 2B of the Guidance, we determine whether the claim
provides an “inventive concept,” i.e., whether the additional
elements beyond the judicial exception, individually and in combination,
amount to “significantly more” than the judicial exception itself. Guidance,
84 Fed. Reg. at 56. According to the Guidance, “simply appending well-
understood, routine, conventional activities previously known to
the industry, specified at a high level of generality,” is indicative that
an inventive concept is absent. Id. at 56.
Consistent with the Examiner’s findings and analysis (Final Act. 5),
we determine that claim 1 is directed to an abstract idea, e.g., a method for
minimizing a cost function, and simply appends well-understood, routine,
conventional activities previously known to the industry, specified at a high
level of generality, and thus, fails to provide an inventive concept sufficient
to transform the abstract idea into patent-ineligible subject matter.
We refer to the Examiner’s stated position on page 5 of the Final
Office Action. Therein, the Examiner states that claim 1 includes the
additional elements of a memory and a processor. The Examiner states that
these elements and/or steps are merely generic computer components
performing generic computer functions which are well-understood, routine,
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and conventional in the art; as such, they do not meaningfully limit the claim
to be more than just the abstract idea. The Examiner also states that claim 1
includes the additional elements of acquiring seismic data for exploring a
geophysical structure probed using seismic excitations. The Examiner states
that this element is merely insignificant extra-solution activity, such as mere
data gathering, recited at a high level of generality and/or in a well-
understood, routine, and conventional way, of the information needed to
carry out the claimed algorithm. We agree, and add that the Specification
indicates that acquiring seismic data was well-understood, routine,
conventional and known in the art. See Spec. ¶ [003]. We also do not find
Appellant’s argument persuasive of error in the Examiner’s analysis and
findings in this regard for the reasons expressed by the Examiner in the
Answer. Ans. 5–17.
Thus, we determine the additional elements recited in claim 1 beyond
the abstract idea, individually and in combination, do not amount to
“significantly more” than the abstract idea itself. Alice, 573 U.S. 217–218.
Accordingly, we affirm the Examiner’s rejection of claims 1 and 3–9
under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter.

Rejections 3–4
Appellant argues that neither this cited portion in Krebs nor its entire
disclosure disclose any difference (i.e., mismatch) between expected dips
and migrated dips, and even if arguendo, migration error were considered as
corresponding to the claimed dip constraint term, there is no inherent or
express disclosure of the migration error being added to a cost function of
non-linear tomography. Appeal Br. 15–16.
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We are unpersuaded by this line of argument for the reasons
expressed by the Examiner on pages 17–18 of the Answer. Therein, the
Examiner explains how Krebs teaches calculating incorrect positions of dips
in the seismic model, and how Krebs teaches the calculation of a migration
error. The Examiner states that using a broadest reasonable interpretation,
the migration error is calculated from an expected and a measured position
of a “dip”. Ans. 18. The Examiner states that Krebs teaches calculation of
this error as “to the extent that the velocity model nevertheless produces
traveltimes that are inconsistent with the measured traveltimes, some dips
will be mispositioned. The Examiner states that same error quantification
procedure discussed above in conjunction with time migration, steps 76
through 86, can be employed in conjunction with the depth migration to
determine the amount of migration error at borehole 8.” Krebs, col. 11, ll.
44–50. Ans. 18.
Appellant also argues that the Examiner acknowledges that Krebs is
silent relative to the cost function of non-linear tomography, but relies on
Grandi to provide this missing element. Appeal Br. 16. Appellant argues
that Grandi refers to a cost function used to optimize velocity change
parameter so as to minimize the difference between every combination of
surveys (Grandi, ¶¶ [0034] and [0057]). Appellant submits that it is not
inherent nor obvious that Grandi’s cost function is a nonlinear tomography
cost function.
We are unpersuaded by this line of argument for the reason expressed
by the Examiner on pages 18–19 of the Answer. Therein, the Examiner
explains that Grandi teaches a non-linear tomography cost function and
refers to ¶ [0035] of Grandi in this regard. The Examiner also states that
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Grandi discloses “[a]s in the prior art we apply warping for correcting the
differences due to 4D changes between a base seismic and a monitor
seismic. EP 1 865 340 cast the warping as a non-linear inverse problem to
obtain an interval attribute such as relative velocity change (¶ [0054])”.
Ans. 19. The Examiner also states that the background of Grandi
discloses “[m]oreover the inversion becomes even more highly non-linear
for fields that induce subsidence and have potentially large time shift (¶
[0009])”. Therefore, the Examiner submits that Grandi clearly teaches a non-
linear tomography cost function. We agree. No reply brief has been filed to
dispute these findings.
Appellant further argues that the Examiner fails to demonstrate that a
skilled artisan would have been motivated to add Krebs’s migration error
with Grandi’s plural vintage-related cost function with a reasonable
expectation of success. Appeal Br. 16. Appellant submits that Krebs and
Grandi do not address the same situation: Krebs referring to processing a
single vintage, while Grandi optimizing differences between pairs among at
least three vintages.
We are unpersuaded by this line of argument for the reason expressed
by the Examiner on page 20 of the Answer. Therein, the Examiner states
that both Krebs and Grandi are in the art of seismic imaging. The Examiner
states that it would have been obvious to have modified Krebs in view of
Grandi to improve the speed of computing a velocity model of the
geophysical structure, and refers to ¶ [0075] of Grandi in this regard. We
agree. We add that absent supporting evidence, Appellant’s assertion
amounts to a mere conclusory statement that is entitled to little, if any,
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probative weight. See, e.g., In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997).
On page 17 of the Appeal Brief, Appellant submits that the Examiner
refused to enter the Amendment After Final. This is a petitionable matter
and therefore not under our consideration herein.
In view of the above, we affirm Rejections 3 and 4.
CONCLUSION
We affirm the Examiner’s decision.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–4, 7–15,
18–20 112(a)
Written
Description
1–4, 7–15,
18–20
1–4, 7–15,
18–20
101 Eligibility 1–4, 7–15,
18–20

1, 3, 12, 14,
15, 18
103 Krebs, Grandi 1, 3, 12, 14,
15, 18

2, 10, 11,
13, 19. 20
103 Krebs, Grandi,
Guillaume
2, 10, 11,
13, 19, 20

Overall
Outcome
1–4, 7–15,
18–20

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).
AFFIRMED