Ping Zhang et al.

Patent Trials and Appeals Board

Apr 15, 2020

13742923 - (D) (P.T.A.B. Apr. 15, 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.
13/742,923 01/16/2013 Ping Zhang IS12.3095-US-NP 6816
23718 7590 04/15/2020
Schlumberger Technology Center
10001 Richmond Avenue
IP Administration Center of Excellence
HOUSTON, TX 77042
EXAMINER
LE, TOAN M
ART UNIT PAPER NUMBER
2864
NOTIFICATION DATE DELIVERY MODE
04/15/2020 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):
SMarckesoni@slb.com
USDOCKETING@slb.com
jalverson@slb.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PING ZHANG, NESTOR CUEVAS,
MICHAEL WILT, and JIUPING CHEN
____________

Appeal 2018-006146
Application 13/742,923
Technology Center 2800
____________

Before ROMULO H. DELMENDO, MONTÉ T. SQUIRE, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

SQUIRE, Administrative Patent Judge.

DECISION ON APPEAL1

Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final decision rejecting claims 1, 3–9, 11–15, and 17–20, which are all of the
claims pending in this application.3 We have jurisdiction under 35 U.S.C.
§ 6(b).

1 In this Decision, we refer to the Specification filed Jan. 16, 2013 (“Spec.”);
Final Office Action dated Apr. 13, 2017 (“Final Act.”); Advisory Action
dated July 21, 2017 (“Advisory Act.”); Appeal Brief filed Dec. 18, 2017
(“Appeal Br.”); Examiner’s Answer dated Mar. 22, 2018 (“Ans.”); and
Reply Brief filed May 22, 2018 (“Reply Brief”).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies Schlumberger Technology
Corporation as the real party in interest. Appeal Br. 2.
3 Claims 2, 10, and 16 are cancelled. Appeal Br. 19–21.
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We AFFIRM.
CLAIMED SUBJECT MATTER
Appellant’s claimed subject matter relates to an electromagnetic (EM)
data acquisition method used to collect information regarding geological
formations, which includes operating EM measurement devices to determine
phase and amplitude data from the geological formation. Spec. ¶¶ 1, 4;
Abstract. According to Appellant’s Specification, the EM data acquisition
method may further include processing the phase data independent from the
amplitude data to generate a geological constituent map of the geological
formation, and identifying different geological constituents in the geological
constituent map based upon the measured amplitude data. Spec. ¶ 4.
Claim 1 illustrates the claimed subject matter on appeal and is
reproduced below from the Claims Appendix to the Appeal Brief:
1. An electromagnetic (EM) data acquisition method for a
geological formation, the method comprising:
operating a plurality of EM measurement devices to
determine phase and amplitude data from the geological
formation, the plurality of EM measurement devices comprising
at least one first EM measurement device within a borehole in
the geological formation, and at least one second EM
measurement device at a surface of the geological formation;
inverting the phase data without the amplitude data to
generate a geological constituent map of the geological
formation; and
identifying different geological constituents in the
geological constituent map based upon the measured amplitude
data, with reduced karst effect.
Appeal Br. 19 (key disputed claim language italicized and bolded).
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Independent claim 9 recites a system (Appeal Br. 20) and independent
claim 15 recites a non-transitory computer-readable medium (id. at 21) each
including claim language similar to claim 1.
REFERENCE
The Examiner relies on the following prior art reference as evidence
in rejecting the claims on appeal:
Marsala et al., First Borehole to Surface Electromagnetic Survey in KSA:
Reservoir Mapping and Monitoring at a New Scale, Society of Petroleum
Engineers (SPE) Ann. Tech. Conf. and Exh., SPE 146348 (2011)
(“Marsala”).
REJECTIONS ON APPEAL
On appeal, the Examiner maintains (Ans. 3) the following rejections:
I. Claims 1, 3–9, 11–15, and 17–20 are rejected under
35 U.S.C. § 101 as being directed to judicial exception (i.e., a law of nature,
a natural phenomenon, or an abstract idea) without significantly more. Final
Act. 2.
II. Claims 1, 3–9, 11–15, and 17–20 are rejected under pre-AIA
35 U.S.C. § 102(b) as being anticipated by Marsala (“Rejection 2”). Id. at 9.
I. REJECTION UNDER 35 U.S.C. § 101
Having considered the respective positions advanced by the Examiner
and Appellant in light of this appeal record, and for the reasons stated below,
we reverse the Examiner’s rejection under 35 U.S.C. § 101.
A. Principles of Law
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101. The
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Supreme Court, however, 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-part 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
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, 67 (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 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
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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 187; 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.”). 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).
If the claim is “directed to” an abstract idea, we turn to the second
part 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 (citation 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).
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. USPTO, 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“2019 Revised Guidance”).4 Consistent with the 2019 Revised

4 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
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Guidance and the October 2019 Update, we 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) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h)) (9th ed.
Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).5
2019 Revised Guidance, 84 Fed. Reg. at 52, 55–56.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look,
under Step 2B, 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

USPTO, October 2019 Update: Subject Matter Eligibility (“October 2019
Update”) (available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df).
5 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See 2019 Revised Guidance - Section III(A)(2), 84
Fed. Reg. 54–55.
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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.
2019 Revised Guidance, 84 Fed. Reg. at 56.
B. Examiner’s Findings and Conclusion
The Examiner rejects claims 1, 3–9, 11–15, and 17–20 under
35 U.S.C. § 101 as being directed to a judicial exception (i.e., a law of
nature, a natural phenomenon, or an abstract idea) without significantly
more. Final Act. 2–8; Ans. 2–13. The Examiner determines claim 1 is
directed to an abstract idea, which does not include additional elements that
are sufficient to amount to significantly more than the judicial exception.
Final Act. 2. In particular, the Examiner determines the “inverting the phase
data without the amplitude data to generate a geological constituent map of
the geological formation” recitation of claim 1 is an abstract idea and the
claim does not include any additional steps to make it significantly more
than mathematical calculations. Id. at 2–3.
The Examiner further determines that the additional elements recited,
for example, “identifying different geological constituents in the geological
constituent map based upon the measured amplitude data, with reduced karst
effect,” do not add significantly more to the claim because they are recited at
a high level of generality and “[t]here is no indication that the combination
of elements improves the functioning of a computer or improves any other
technology.” Id. at 3.
The Examiner also determines that the “operating a plurality of EM
measurement devices to determine phase and amplitude data from the
geological formation” and the “plurality of EM measurement devices
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comprising at least one first EM measurement device within a borehole in
the geological formation” elements of the claim do not amount to
significantly more than the abstract idea because they correspond to merely
data gathering/collection. Final Act. 4 (citing Electric Power Group, LLC v.
Alstom, S.A., 830 F.3d 1350, 1351–52 (Fed. Cir. 2016)). See also Ans. 12
(finding “the obtained phase data and amplitude data from operating the EM
devices are merely insignificant extra-solution activity recited at a high level
of generality and/or in a well-understood, routine, and conventional way
such as mere data gathering of the information . . . needed to carry out the
claimed algorithm”).
B. Appellant’s Contentions
In response to the Examiner’s § 101 rejection, Appellant presents
substantive arguments for the patentability of independent claims 1, 9, and
15 as a group and relies on the same arguments for the patentability of
dependent claims 3–8, 11–14, and 17–20. Appeal Br. 13.
Appellant argues that the Examiner’s § 101 rejection should be
reversed because the claims are not directed to an abstract idea. Appeal
Br. 9; Reply Br. 3–4. Appellant further argues that, even if the claims recite
an abstract idea, the claims recite additional elements that taken together
amount to significantly more than the abstract idea. Appeal Br. 13 (arguing
“the combination of elements and interactions between the elements recited
in the claim undoubtedly amount to significantly more than a ‘mathematical
calculation’”); see also Reply Br. 8–9 (same).
Appellant contends that, in contrast to the claims found
patent-ineligible in Electric Power, the claims presented in this case add
significantly more than merely data gathering/collection and displaying the
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data. Appeal Br. 14. In particular, Appellant contends the claims recite
specific steps to generate a geological constituent map of the geological
formation and apply a new technique for processing and analyzing the data
obtained by the EM measurement devices that “represents a specific
technological improvement in the operation of a well-logging system.” Id.
at 14–15.
Appellant further argues the Examiner’s rejection should be reversed
because the Examiner does not adequately address the additional elements
recited in the claims or adequately explain why the additional elements taken
individually and in combination do not amount to significantly more than an
abstract idea. Id. at 9; see also Reply Br. 3 (arguing “the Examiner has not
adequately addressed each individual claim nor properly analyzed the
specific elements of each claim”).
C. Analysis
For the reasons set forth below, we conclude claims 1, 3–9, 11–15,
and 17–20 are not directed to a judicial exception because, although the
claims recite an abstract idea, they recite additional elements that integrate
the recited abstract idea into a practical application. For purposes of our
analysis, we focus on claim 1.
1. Guidance Step 1
Under Step l, we consider whether the claimed subject matter falls
within the four statutory categories set forth in § 101, namely a process,
machine, manufacture, or composition of matter. 2019 Revised Guidance,
84 Fed. Reg. at 53–54; see 35 U.S.C. § 101. Claim 1 recites an
“electromagnetic (EM) method” and, thus, falls within the process category.
We therefore proceed to Step 2A Prong One of the analysis.
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2. Guidance Step 2A Prong One
Under Step 2A Prong One, we evaluate whether the claim recites a
judicial exception, i.e., an abstract idea, a law of nature, or a natural
phenomenon. 2019 Revised Guidance, 84 Fed. Reg. at 54; see Alice, 573
U.S. at 216. Claim 1 recites, among other things, the step of “inverting the
phase data without the amplitude data to generate a geological constituent
map of the geological formation.” Appeal Br. 19 (Claims Appendix). The
Specification explains that this step is performed, for example, based upon
an inversion algorithm, which is a mathematical operation performed on the
phase data. Spec. ¶ 22; Figure 2. The “inverting the phase data without the
amplitude data” recitation of claim 1 is therefore a mathematical calculation,
which is one of the mathematical concepts identified as an abstract idea in
the revised guidance. 2019 Revised Guidance, 84 Fed. Reg. at 52; see also
Diehr, 450 U.S. at 191 (“A mathematical formula as such is not accorded the
protection of our patent laws.”).
Thus, under Step 2A Prong One, we determine claim 1 recites an
abstract idea that falls within the mathematical concepts grouping. 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.”). We therefore proceed to Step 2A Prong Two of
the analysis.
3. Guidance Step 2A Prong Two
Under Step 2A Prong Two, we must (a) identify whether there are any
additional elements recited in the claim beyond the judicial exception and
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(b) evaluate those additional elements individually and in combination to
determine whether they integrate the exception into a practical application.
2019 Revised 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. Id.
at 55.
Here, in addition to the “inverting the phase data without the
amplitude data,” claim 1 recites the following elements:
operating a plurality of EM measurement devices to
determine phase and amplitude data from the geological
formation, the plurality of EM measurement devices comprising
at least one first EM measurement device within a borehole in
the geological formation, and at least one second EM
measurement device at a surface of the geological formation . . .
and
identifying different geological constituents in the
geological constituent map based upon the measured amplitude
data, with reduced karst effect.
Appeal Br. 19 (Claims Appendix).
When we consider these additional elements, individually and as an
ordered combination with the other recited elements of claim 1, we
determine the additional elements integrate the recited abstract idea into a
practical application. In particular, considering the “operating a plurality of
EM measurement devices to determine phase and amplitude data from the
geological formation” and “identifying different geological constituents in
the geological constituent map based upon the measured amplitude data”
elements, each individually and in combination with the “inverting the phase
data without the amplitude data” recitation of the claim, we determine the
claim as a whole involves a particular configuration of electromagnetic
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measurement devices, including for example, EM transmitters and receivers,
and a particular method of operating the EM devices for measuring EM
signals, including phase and amplitude data from geological formations,
which are integrated into a practical application for better identifying and
distinguishing geological constituents within a geological formation in oil
and gas exploration.6 That is, the additional elements recited in claim 1
taken together apply the method, in a meaningful way, such that it is more
than a drafting effort designed to monopolize the mathematical concepts
exception. See MPEP § 2106.05(e).
Claim 1 is analogous to the claims found patent-eligible in Thales
Visionix Inc. v. United States, 850 F.3d 1343 (Fed. Cir. 2017), in which
mathematical concepts were used to improve a particular technology. See
Thales, 850 F.3d at 1348–1349 (finding patent-eligibility upon considering
“claims directed to a new and useful technique for using sensors to more
efficiently track an object on a moving platform”). See also MPEP §
2106.05(a)(II) (“The courts have also found that improvements in

6 See, e.g., Spec. ¶ 2 (disclosing “EM sources (i.e., transmitters) and EM
receivers are deployed on a terrestrial surface or sea bottom, in a borehole[]
within the geological formation”), ¶ 15 (describing “a well-logging system
20 which may be used to determine constituents or materials within a
geological formation 21 based upon surface-to-borehole (STB) or borehole-
to-surface (BTS) electromagnetic (EM) measurements”), ¶ 16 (describing “a
series or array of EM transmitters or sources 23 . . . arranged on the surface
of the geological formation 21, and an array of EM receivers 26 are
deployed in the wellbore 22 and that “[e]ach transmitter 23 broadcasts an
EM signal, such as a sinusoid or a square wave, through the earth to be
detected by the receivers 26”), ¶ 21 (disclosing “the EM transmitters 23 and
receivers 26 may be operated to determine or measure phase and amplitude
data from the geological formation”), Figs. 1, 2.
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technology beyond computer functionality may demonstrate patent
eligibility”). Like the claims found patent-eligible in Thales, claim 1 recites
a new and useful method that involves a particular configuration of EM
measurement devices, and operating the devices and processing signals
obtained from the devices to identify and distinguish geological formations
in a way which provides a technological improvement over the prior art. See
Spec. ¶ 21 (disclosing the claimed method “provide[s] an accurate image or
representation of the constituents within the geological formation and, more
particularly, within the reservoir 30”), ¶ 22. “That a mathematical equation
is required to complete the claimed method and system does not doom the
claim[] to abstraction.” Thales, 850 F.3d at 1349.
Claim 1 is also analogous to the claims found patent-eligible in SiRF
Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319, 1331–33 (Fed. Cir. 2010).
In SiRF, the claims recited a method for calculating the position of a GPS
receiver by providing pseudo ranges and making various mathematical
estimates. Id. at 1332. Our reviewing court determined that a GPS receiver
is a machine and is integral to each claim at issue. Id. The court further
determined that the GPS receiver in the claims “places a meaningful limit on
the scope of the claims.” Id. at 1332–1333. Like the GPS receiver in SiRF,
claim 1 requires “EM measurement devices,” such as the EM transmitters
and EM receivers to broadcast or detect signals for determining geological
formations (Spec. ¶¶ 2, 16, 21), which are machines integral to the claim.
Claim 1 also requires that at least one EM measurement device be placed
within a borehole in the geological formation and at least one EM
measurement device be placed at a surface of the geological formation, such
that the claimed method cannot be performed without these particular
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machines. These additional elements, like the GPS receiver in SiRF, place a
meaningful limit on the scope of claim 1, and when considered individually
and as an ordered combination with the other elements recited in the claim,
integrate the recited abstract idea of claim 1 into a practical application.
Because claim 1 integrates the recited abstract idea into a practical
application, we determine that claim 1 is not “directed to” an abstract idea.7
For similar reasons, we determine independent claims 9 and 15, which recite
limitations commensurate with those of claim 1, and dependent claims 3–8,
11–14, and 17–20 are not directed to an abstract idea.
Accordingly, we reverse the Examiner’s rejection of claims 1, 3–9,
11–15, and 17–20 under 35 U.S.C. § 101 as being directed to a judicial
exception without significantly more.
II. REJECTION UNDER 35 U.S.C. § 102
Having considered the respective positions advanced by the Examiner
and Appellant in light of this appeal record, we affirm the Examiner’s § 102
rejection based on the fact-finding and reasoning set forth in the Answer,
Advisory Action, and Final Office Action, which we adopt as our own. We
add the following primarily for emphasis.
In response to the Examiner’s § 102 rejection, Appellant presents
arguments for the patentability of independent claims 1, 9, and 15 as a group
but does not present separate argument for any of the remaining claims
subject to the Examiner’s rejection. Appeal Br. 16–17. We select claim 1 as

7 Because we have determined that claim 1 is not directed to a judicial
exception, we need not proceed to Step 2B of the 2019 Revised Guidance.
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representative and the remaining claims 3–9, 11–15, and 17–20 stand or fall
with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
To serve as an anticipatory reference, “the reference must disclose
each and every element of the claimed invention.” In re Gleave, 560 F.3d
1331, 1334 (Fed. Cir. 2009). The Examiner finds that Marsala describes a
method disclosing each and every element of claim 1 and concludes the
reference anticipates the claim. Ans. 13–19; Final Act. 9–10. On the record
before us, we determine a preponderance of the evidence supports the
Examiner’s findings regarding the Marsala reference and conclusion that it
anticipates the claim. Marsala, Abstract, 1–3, 5–9, Figs. 1, 2, 9–13, 15, 16.
Appellant argues the Examiner’s rejection should be reversed because
Marsala does not disclose “inverting the phase data without the amplitude
data to generate a geological constituent map of the geological formation”
and “identifying different geological constituents in the geological
constituent map based upon the measured amplitude data, with reduced karst
effect,” as recited in the claim. Appeal Br. 16–17; Reply Br. 13–15. In
particular, Appellant contends the Examiner has not provided sufficient
evidence of record or reasoned rationale to support that Marsala’s processing
of phase data is identical to inversion. Appeal Br. 17. Appellant further
contends there is no indication that any map of Marsala is generated by
inverting phase data without the amplitude data, as required by the claim.
Id. at 17; see also Reply Br. 14 (“Even if this portion of Marsala appears to
disclose inversion of data, it is not clear that any phase data is inverted
without the amplitude data, as recited in independent claims 1, 9, and 15.”).
Appellant also contends there is no disclosure in Marsala that the amplitude
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data is used to identify constituents in the map shown in Figure 11 of the
reference. Reply Br. 14.
We do not find Appellant’s arguments persuasive of reversible error
in the Examiner’s rejection based on the Examiner’s fact-finding and
reasoning provided at pages 13–19 of the Answer and pages 9–10 of the
Final Office Action. Contrary to what Appellant argues, a preponderance of
the evidence supports the Examiner’s finding that Marsala discloses
“inverting the phase data without the amplitude data to generate a geological
constituent map of the geological formation” and “identifying different
geological constituents in the geological constituent map based upon the
measured amplitude data, with reduced karst effect,” as claimed. Final
Act. 9–10; Marsala 5–7, Figs. 9–11. As the Examiner finds (Ans. 15, 18),
Marsala discloses using EM measurement devices to transmit EM signals
through geological formations, such as oil and water reservoir layers in an
oilfield, and processing separately amplitude data (“dual frequency
amplitude (DFA)”) and phase data (“dual frequency phase (DFP)”) to
predict oil saturation of a target reservoir. Marsala, Abstract, 1–3, 5 (“IP
responses can be obtained calculating dual frequency amplitude (DFA) and
dual frequency phase (DFP), to predict and evaluate oil saturation of target
reservoirs.”), Fig. 9.
As the Examiner further finds (Ans. 14, 18), Marsala discloses
inverting the phase data without the amplitude data to generate a geological
constituent (i.e., oil and water) map. Marsala 5 (disclosing “[r]esistivity
maps of the target reservoir layers are also produced through 1D constrained
inversion of amplitude data” and “3D inversion on all the dataset produces a
resistivity map”), 7, Fig. 9a (showing dual frequency phase curves without
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amplitude data), Fig. 11 (showing geological constituent map of “A1-A2
reservoir layer” based on the difference of dual frequency phase (D-DFP)
data only). As the Examiner also finds (Ans. 18–19), Marsala discloses
identifying different geological constituents, for example, oil and water in
the geological constituent map based upon the measured amplitude data
(DFA) with reduced karst effect. Marsala 6–7 (“DFA anomalies in the case
of EM transmission above the reservoir are smaller than in the case of EM
transmission below the reservoir.”), Fig. 10 (showing geological constituent
map of “A1-A2 reservoir layer” based on the difference of dual frequency
amplitude (D-DFP) data only).
Appellant’s arguments do not reveal reversible error in the
Examiner’s factual findings or analysis in this regard. Appellant’s
contentions at pages 16–17 of the Appeal Brief and pages 13–15 of the
Reply Brief are not persuasive because they are largely conclusory and
unsupported by persuasive evidence in the record. Attorney argument is not
evidence. 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 conclusory statements, which are unsupported by
concrete factual evidence, are entitled to little probative value).
Likewise, Appellant’s disagreement with the Examiner’s factual
findings as to what Marsala discloses, without more, is insufficient to
establish reversible error. Cf. SmithKline Beecham Corp. v. Apotex Corp.,
439 F.3d 1312, 1320 (Fed. Cir. 2006) (“[M]ere statements of disagreement .
. . as to the existence of factual disputes do not amount to a developed
argument.”).
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Accordingly, we affirm the Examiner’s rejection of claims 1, 3–9,
11–15, and 17–20 under 35 U.S.C. § 102(b) as anticipated by Marsala.
CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. §  Reference(s)/Basis Affirmed Reversed
1, 3–9,
11–15,
17–20
101 1, 3–9,
11–15,
17–20
1, 3–9,
11–15,
17–20
102(b) Marsala 1, 3–9,
11–15,
17–20

Overall
Outcome
1, 3–9,
11–15,
17–20

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