CGG SERVICES SA

Patent Trials and Appeals BoardMar 4, 2021

2020001384 (P.T.A.B. Mar. 4, 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. 14/967,679 12/14/2015 Gordon POOLE 0336-530-2/100825 4959 11171 7590 03/04/2021 Patent Portfolio Builders, PLLC 754 Warrenton Road Suite 113-314 Fredericksburg, VA 22406 EXAMINER AHMAD, KHAJA ART UNIT PAPER NUMBER 2813 NOTIFICATION DATE DELIVERY MODE 03/04/2021 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 GORDON POOLE, HENNING HOEBER, and ADEL KHALIL ____________ Appeal 2020-001384 Application 14/967,679 Technology Center 2800 ____________ Before MICHAEL P. COLAIANNI, MONTÉ T. SQUIRE, and JANE E. INGLESE, Administrative Patent Judges. SQUIRE, Administrative Patent Judge. DECISION ON APPEAL1 Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision to reject claims 4–8 and 13–23.3 We have jurisdiction under 35 U.S.C. § 6(b). 1 This Decision refers to the Specification filed Dec. 14, 2015 (“Spec.”); Final Office Action dated Apr. 17, 2019 (“Final Act.”); Appeal Brief filed Sept. 9, 2019 (“Appeal Br.”); Examiner’s Answer dated Nov. 14, 2019 (“Ans.”); and Reply Brief filed Dec. 11, 2019 (“Reply Br.”). 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies CGG Services SA as the real party in interest. Appeal Br. 2. 3 Claims 1–3 are cancelled and claims 9–12 are withdrawn. Appeal Br. 11–12; Final Act. 1. Appeal 2020-001384 Application 14/967,679 2 We AFFIRM, but designate our affirmance as a NEW GROUND OF REJECTION pursuant to our authority under 37 C.F.R. § 41.50(b). CLAIMED SUBJECT MATTER The invention relates to an apparatus and method for deblending seismic data, including using a non-blended dataset acquired in a same survey area to deblend the seismic data. Spec. ¶¶ 2, 10; Abstract. Claim 21 illustrates the subject matter on appeal and is reproduced below from the Claims Appendix to the Appeal Brief: 21. A seismic exploration method for imaging gas and oil reservoirs in an underground formation, the method comprising: obtaining a first non-blended dataset acquired over the underground formation; acquiring a second blended dataset over the underground formation using plural sources whose listening times overlap; calculating a model dataset emulating the second blended dataset by interpolating data in the first non-blended dataset to match source and receiver positions during the acquiring of the second blended dataset; deblending the second blended dataset using the model dataset to obtain at least one deblended second dataset corresponding to one of plural seismic sources; and generating an image of the underground formation based on the at least one deblended second datasets. Id. at 15–16. REFERENCES The Examiner relies on the following prior art as evidence in rejecting the claims on appeal: Name Reference(s)/Basis Date Poole US 2013/0176819 A1 July 11, 2013 Appeal 2020-001384 Application 14/967,679 3 Etgen US 2014/0278289 A1 Sept. 18, 2014 Li et al. (“Li”) US 2017/0082761 A1 Mar. 23, 2017 REJECTIONS On appeal, the Examiner maintains (Ans. 3) the following rejections: I. Claims 4–8, 13–21, and 23 are rejected under 35 U.S.C. § 103 as obvious over Li in view of Poole (“Rejection I”). Final Act. 6. II. Claim 22 is rejected under 35 U.S.C. § 103 as obvious over Li in view of Poole as applied to claim 21 above, and further in view of Etgen (“Rejection II”). Final Act. 12. OPINION Having considered the respective positions the Examiner and Appellant advance in light of this appeal record, based on the factual findings and reasons the Examiner provides in the Answer and Final Office Action, and for the reasons set forth below, we affirm the Examiner’s rejections. We, however, designate our affirmance of the Examiner’s rejection of claims 4–8, 13–21, and 23 under § 103 as obvious over Li and Poole (Rejection I) as a NEW GROUND OF REJECTION pursuant to 37 C.F.R. § 41.50(b) because our analysis differs from the Examiner’s analysis with regard to certain findings of fact and reasoning. Rejection I. Clams 4–8, 13–21, and 23 Obvious Over Li and Poole The Examiner rejects claims 4–8, 13–21, and 23 under § 103 as obvious over Li and Poole. Final Act. 6. Appellant presents argument for the patentability of independent claims 13 and 21 as a group (Appeal Br. 6) and Appeal 2020-001384 Application 14/967,679 4 additional argument for the patentability of claim 23 (Appeal Br. 8), which we address in turn below. A. Claims 4–8 and 13–21 Appellant presents argument for the patentability of claims 13 and 21 as a group. Appeal Br. 6. We select claim 21 as representative and claims 4–8 and 13–20 stand or fall with claim 21. 37 C.F.R. § 41.37(c)(1)(iv). The Examiner determines the combination of Li and Poole suggests a method for imaging gas and oil reservoirs satisfying the limitations of claim 21 and would have rendered the claim obvious. Final Act. 10–12; Ans. 4–6. 1. Appellant’s Argument That Li Is Not Prior Art Appellant argues the Examiner’s rejection should be reversed because Li is not prior art to the application that is the subject of this Appeal (Application 14/967,679) (“Appellant’s application”). Appeal Br. 9. Appellant’s application was filed on December 14, 2015 and “claims priority and benefit from U.S. Provisional Patent Application No. 62/119,884, filed February 24, 2015.”4 Spec. 1. Li is a non-provisional application that published on March 23, 2017 and was filed on December 18, 2015. Li, codes (10), (22), (43). Li claims benefit to “U.S. Provisional Application Ser. No. 62/093,791 filed Dec. 18, 2014.”5 Id. ¶ 1, code (60). 4 Appellant’s application was filed after the effective date of Leahy-Smith America Invents Act (AIA), Pub. L. No. 112–29, § 3, 125 Stat. 284, 285–93 (2011), and therefore, examined under the first inventor to file provisions of the AIA. Final Act. 1. 5 We refer to this application as the “Li provisional application.” Appeal 2020-001384 Application 14/967,679 5 Appellant argues that, although the Examiner determines Li has a priority date of December 18, 2014 based on the earlier-filed Li provisional application, the Examiner “fails to show that the portions of Li relied upon in rejecting the claims have correspondent portions in the earlier filed provisional.” Id. “A reference patent is only entitled to claim the benefit of the filing date of its provisional application if the disclosure of the provisional application provides support for the claims in the reference patent in compliance with § 112, ¶ 1.” Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1382 (Fed. Cir. 2015). See also Amgen, Inc. v. Sanofi, 872 F.3d 1367, 1380 (Fed. Cir. 2017) (requiring for a non-provisional application to be afforded the priority date of the provisional application, “the written description of the provisional must adequately support the claims of the non-provisional application”). The MPEP further provides that “a U.S. patent document is effective as prior art as of the filing date of the earliest application to which benefit or priority is claimed and which describes the subject matter relied upon, regardless of whether the earliest such application is a U.S. provisional or nonprovisional application.” MPEP § 2151 (9th Ed., Rev. 10.2019, June 2020). On this record, in view of the Examiner’s findings and for the reasons below, we determine the Li provisional application meets the above requirements. That is, the Li provisional provides support for the claims in Li and describes the subject matter relied upon from Li by the Examiner. In particular, claim 1 of Li recites: 1. A multi-stage inversion method for deblending seismic data, the method comprising: Appeal 2020-001384 Application 14/967,679 6 a) acquiring blended seismic data from a plurality of seismic sources; b) constructing an optimization model that includes the acquired blended seismic data and unblended seismic data; c) performing sparse inversion, via a computer processor, on the optimization model; d) estimating high-amplitude coherent energy from result of the performing sparse inversion in c); e) re-blending the estimated high-amplitude coherent energy; and f) computing blended data with an attenuated direct arrival energy. As the Examiner finds (Ans. 3–4; Final Act. 15), and Appellant does not dispute, the Li provisional application has the same disclosure as Li. Compare the Li provisional application (Abstract, ¶¶ 1–60, Figs. 1–7) with, Li (Abstract, ¶¶ 2–61, Figs. 1–7). Indeed, with the exception of paragraph 1 of Li, the Li provisional application’s specification appears to include the same or substantially the same written description as Li’s specification. The disclosures of both the Li provisional application and Li “relate generally to seismic data” and describe embodiments that include “tools and methods for deblending and reconstructing seismic data acquired by simultaneous source technology.” Li provisional application ¶ 1; Li ¶ 2 (same). With respect to § 112 written description support for claim 1 of Li, paragraph 5 of the Li provisional application describes: One example of a multi-stage inversion method for deblending seismic data includes: a) acquiring blended seismic data from a plurality of seismic sources; b) constructing an optimization model that includes the acquired blended seismic data and unblended seismic data; c) performing sparse inversion, via a computer processor, on the optimization model; d) estimating high-amplitude coherent energy from result of the performing Appeal 2020-001384 Application 14/967,679 7 sparse inversion in c); e) re-blending the estimated high- amplitude coherent energy; and f) computing blended data with an attenuated direct arrival energy. Regarding limitations a) and b), paragraphs 22–36 (Example 1) and Figure 1 of the Li provisional application describe the steps of acquiring blended seismic data from a plurality of seismic sources and constructing an optimization model that includes the acquired blended and unblended seismic data. The Li provisional application discloses that in equation (1) “b is the acquired blended data” and “u is the unblended data without source interference.” Id. ¶ 24. Paragraph 26 of the Li provisional application further discloses that the “[o]ptimization model, shown in equation 2, can be effectively and efficiently solved by a nonmonotone alternating direction method (ADM) . . . and widely used for decades as a robust iterative method solving inverse problems.” Regarding limitations c), d), e), and f), paragraphs 38–42 of the Li provisional application describes those steps. In particular, paragraph 38 of the Li provisional application discloses that “sparse inversion indicates the method tends to fit coherent high-amplitude energy first” and “the portion corresponding to the high-amplitude energy in u1 [in equation (16)] is more reliable.” Paragraph 38 of the Li provisional application also discloses that “[c]onventional processing workflow can be applied to deblended records to estimate coherent high-amplitude energy, for example, direct arrival energy” and describes re-blending the estimated high-amplitude coherent energy based on source time information and computations including “the blended data with an attenuated direct arrival.” Appeal 2020-001384 Application 14/967,679 8 We, therefore, determine the Li provisional application provides written description support for at least one claim in Li in compliance with § 112, ¶ 1. We also determine a preponderance of the evidence supports the Examiner’s finding that the Li provisional application has the same disclosure as Li (Ans. 3–4; Final Act. 15) and thus, describes the same subject matter relied upon from Li by the Examiner in the rejection of Appellant’s claims––which shifts the burden to Appellant to explain why this finding is erroneous. See Ex parte Yamaguchi, 88 USPQ2d 1606, 1613–14 (BPAI 2008) (precedential) (holding that the Examiner’s statements regarding why the relied-upon subject matter from a patent was entitled the benefit of the provisional application’s filing date, although “terse and conclusory,” were sufficient to shift the burden to Appellant). Regarding the Examiner’s rejection of Appellant’s claim 21 (Ans. 4–6; Final Act. 10–12), for example, the Examiner relies upon Li for teaching the following limitations: “the obtaining a first non-blended dataset” and “acquiring a second blended dataset over the underground formation using plural sources” (citing Li, Abstract, ¶¶ 4, 24, 25, 45); “calculating a model dataset emulating the second blended dataset by interpolating data in the first non-blended dataset to match source and receiver positions during the acquiring of the second blended dataset” (citing Li ¶¶ 8, 9, 24–26, 38–41, 49); and “deblending the second blended dataset using the model dataset to obtain at least one deblended second dataset corresponding to one of plural seismic sources” (citing Li ¶¶ 38–41, 58, 59, Fig. 5). Appeal 2020-001384 Application 14/967,679 9 Because, as the Examiner finds (Ans. 3–4; Final Act. 15), the Li provisional application has the same disclosure as Li, the Li provisional application describes the same subject matter from Li relied upon in the Examiner’s rejection of claim 21, which a preponderance of the evidence in the record supports. Compare the Li provisional application (Abstract, ¶¶ 3, 7, 8, 23–25, 37–40, 48, 57, 58, Fig. 5) with, Li (Abstract, ¶¶ 4, 5, 8, 9, 24–26, 38–41, 49, 58, 59, Fig. 5). Appellant, however, has not persuasively shown why the Examiner’s finding is erroneous. Appellant’s contentions that the Examiner “has failed to prove that Li is a prior art reference” and “fails to show that the portions of Li relied upon in rejecting the claims have correspondent portions in the earlier filed provisional” (Appeal Br. 9) are not persuasive because they are conclusory and, absent more, do not show reversible error in the Examiner’s finding. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Thus, on this record, we are not persuaded Appellant has shown reversible error in the Examiner’s determination that Li qualifies as prior art to Appellant’s application. 2. Appellant’s Arguments Based on the Combination of Li in view of Poole Appellant further argues the Examiner’s rejection should be reversed because the combination of Li and Poole does not teach or suggest the step of “calculating a model dataset emulating the second blended dataset by interpolating data in the first non-blended dataset to match source and receiver positions during the acquiring of the second blended dataset,” as claimed. Appeal Br. 6; Reply Br. 1–2. Appellant contends that Poole does not teach that the model dataset emulating the second blended dataset is calculated “by interpolating data in the first non-blended dataset to match Appeal 2020-001384 Application 14/967,679 10 source and receiver positions during the acquiring of the second blended dataset” and neither Li nor Poole discloses the claimed source and receiver positions matching achieved via interpolation. Appeal Br. 6. Appellant also argues a person of ordinary skill in the art would not have been motivated to combine Li’s and Poole’s teachings to arrive at the claimed invention. Id. at 7. Appellant contends that the alleged motivation to combine references the Examiner provides in the rejection is “baseless and irrelevant to the claimed features” and not “supported by an evidentiary foundation in the prior art, and that “simple substitution does not yield the claimed paradigm.” Id. at 6–8. We do not find Appellant’s arguments persuasive of reversible error in the Examiner’s rejection based essentially on the factual findings, analysis, and conclusions the Examiner provides at pages 4–6 of the Answer and pages 10–12 of the Final Action, which a preponderance of the evidence supports. Rather, on this appeal record, we agree with the Examiner that the combination of Li and Poole suggests the claimed method, including the step of “calculating a model dataset emulating the second blended dataset by interpolating data in the first non-blended dataset to match source and receiver positions during the acquiring of the second blended dataset.” As the Examiner finds (Ans. 4–5; Final Act. 11), Li teaches a seismic exploration method for imaging gas and oil reservoirs in an underground formation comprising: obtaining a first non-blended dataset (“u” in equation 1 of Li) and acquiring a second blended dataset (“b” in equation 1 of Li) over the underground formation using plural sources whose listening times overlap (Li, Abstract, ¶¶ 4, 24, 25, 45); calculating a model dataset emulating the second blended dataset by interpolating data in the first non- Appeal 2020-001384 Application 14/967,679 11 blended dataset to match source and receiver positions during the acquiring of the second blended dataset (id. ¶¶ 8, 9, 24–26, 38–41, 49); and deblending the second blended dataset using the model dataset to obtain at least one deblended second dataset corresponding to one of plural seismic sources (id. ¶¶ 38–41, 58, 59, Fig. 5). As the Examiner further finds (Ans. 5; Final Act. 11), Poole teaches a method for deblending seismic data associated with a subsurface of the earth and that conventional seismic data acquisition methods employed acting multiple vibrators (seismic sources) acting at one at a time wherein an interface configured to obtain a first non-blended dataset acquired over the underground formation. Poole ¶¶ 4, 5, 8–10. As the Examiner also finds (Ans. 5; Final Act. 11), Figure 1 of Poole teaches such method of obtaining a dataset without cross-talk and noise and Figure 2 of Poole teaches a method obtaining a dataset with cross-talk and noise for imaging gas and oil reservoirs in an underground formation. Id. ¶¶ 4–10, Figs. 1, 2. The Examiner also provides a reasonable basis why one of ordinary skill in the art would have had reason to combine the teachings of the Li and Poole to arrive at the claimed invention. Ans. 5–6; Final Act. 4 (explaining it would have been obvious to one of ordinary skill in the art to modify elements of Li’s method of deblending process according to Figure 1 of Poole’s teaching in order to use a real non-blended dataset without cross talk and noise). See also KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”). Appellant’s arguments do not reveal reversible error in the Examiner’s factual findings, analysis, and conclusions. Appellant’s Appeal 2020-001384 Application 14/967,679 12 contentions at page 6 of the Appeal Brief that the cited art does not teach or suggest certain claim limitations are not persuasive because they are conclusory and, without more, do not show reversible error in the Examiner’s findings. De Blauwe, 736 F.2d at 705; see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Appellant’s argument that a person of ordinary skill in the art would not have been motivated to combine Li’s and Poole’s teachings to arrive at the claimed invention (Appeal Br. 7) is not persuasive because, as we previously discuss above, we determine the Examiner does provide a reasonable basis, which a preponderance of the evidence in the record supports, why one of ordinary skill in the art would have combined the teachings of Li and Poole to arrive at the claimed invention. Appellant’s disagreement as to the Examiner’s factual findings and reasons for combining the references, without more, is insufficient to establish reversible error. 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.”). . Appellant’s contentions that the alleged motivation to combine references the Examiner provides is “baseless and irrelevant to the claimed features” and “not supported by an evidentiary foundation in the prior art” and that “simple substitution does not yield the claimed paradigm” (Appeal Br. 6–8) are not persuasive because they too are conclusory. De Blauwe, 736 F.2d at 705. Appeal 2020-001384 Application 14/967,679 13 Appellant’s contention that Figures 1 and 2 do not render the claimed features obvious because they are “not necessarily real seismic data, but graphic illustrations” (Appeal Br. 7) is equally unpersuasive, as it is both speculative and largely conclusory, and unsupported by persuasive evidence in the record. De Blauwe, 736 F.2d at 705; 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). Moreover, as the Examiner finds (Ans. 5), it is not clear from Li’s disclosure whether the non-blended dataset is a real dataset or modeled dataset. Moreover, as the Examiner finds and explains, interpolating the second blended dataset in the first non-blended dataset to match source and receiver positions in the second blended dataset would have been an obvious step in include in Li’s process in order to synchronize (proper referencing) the dataset that is used for calculating the model dataset or else the model dataset would be a unreal and unreliable. Ans. 5–6 (citing Li ¶ 24). Appellant does not persuasively rebut or otherwise reveal reversible error in the Examiner’s factual finding in this regard, which a preponderance of the evidence supports. Absent more, Appellant’s mere disagreement as to the Examiner’s factual findings does not establish reversible error. SmithKline Beecham, 439 F.3d at 1320. We, therefore, sustain the Examiner’s rejection of claims 4–8 and 13–21. B. Claim 23 Claim 23 depends from claim 21 and further recites “wherein the first non-blended dataset and the second blended dataset are acquired intertwined during a same survey.” Appeal Br. 16 (Claims Appendix). Appeal 2020-001384 Application 14/967,679 14 Regarding the “wherein the first non-blended dataset and the second blended dataset are acquired intertwined during a same survey” limitation of claim 23, the Examiner finds that paragraphs 4–6 of Poole teach how the real seismic datasets (blended or unblended) are collected and Figures 1 and 2 of Poole are the representation of the real seismic datasets used for underground imaging. Ans. 7–8; Final Act. 12 (citing Poole, Figs. 1, 2). Appellant argues the rejection of claim 23 should be reversed because Poole’s Figures 1 A-B are graphical illustrations of un-blended seismic data and Poole’s Figures 2A-B are graphical illustrations of blended seismic data. Poole’s Figures 1 A-B and 2A-B do NOT render obvious the claimed features (they are not necessarily real seismic data, but graphic illustrations) as there is no explicit nor inherent teaching that Poole’s figures illustrate datasets acquired intertwined during a same survey as claimed. Appeal Br. 8–9. This argument is essentially the same argument regarding Poole’s Figures 1 and 2 Appellant presents above in response to the Examiner’s rejection of claim 21. Compare Appeal Br. 8 with, Appeal Br. 7 (arguing “Poole’s Figures 1A-B and 2A-B are not necessarily real seismic data, but graphic illustrations”). Thus, based on the factual findings the Examiner provides, and for essentially the same reasons we discuss above for sustaining the Examiner’s rejection of claim 21, we sustain the Examiner’s rejection of claim 23. Accordingly, we affirm the Examiner’s rejection of claims 4–8, 13–21, and 23 under 35 U.S.C. § 103 as obvious over Li and Poole. Because our analysis differs from the Examiner’s with regard to certain findings of fact and reasoning, we designate our affirmance of this rejection as a NEW GROUND OF REJECTION pursuant to 37 C.F.R. § 41.50(b). Appeal 2020-001384 Application 14/967,679 15 Rejection II. Claim 22 Obvious Over Li, Poole, and Etgen Claim 22 depends from claim 21 and further recites: wherein the first non-blended dataset was acquired earlier than the second blended dataset, and evolution of the underground formation is observed by comparing the image of the underground formation generated using the at least one deblended second dataset with an image of the underground formation generated using the first non- blended dataset. Appeal Br. 16 (Claims Appendix). The Examiner rejects claim 22 as obvious over the combination of Li, Poole, and Etgen. Final Act. 12. Appellant argues the Examiner’s rejection of claim 22 should be reversed because Etgen does not disclose, and it is not obvious or inherent, that a first non-blended dataset used to deblend a second blended dataset was acquired prior to the second blended dataset, and that evolution is observed by comparing images of the underground formation based on the first and the second datasets. Appeal Br. 8. We do not find Appellant’s argument persuasive of reversible error in the Examiner’s rejection because it is conclusory. De Blauwe, 736 F.2d at 705; Lovin, 652 F.3d at 1357. Moreover, based on the factual findings and reasons the Examiner provides at pages 6–7 of the Answer and pages 12–14 of the Final Office Action, which a preponderance of the evidence supports, we agree with the Examiner that Etgen teaches or suggests “the first non-blended dataset was acquired earlier than the second blended dataset . . . generated using the first non-blended dataset” limitation and that it would have been obvious to one of ordinary skill in the art to have the teachings of modified Li in view of Appeal 2020-001384 Application 14/967,679 16 Etgen’s teachings to arrive at the method of claim 22. Etgen, Abstract, ¶¶ 2–7. In particular, as the Examiner finds (Ans. 6; Final Act. 13), Etgen teaches that a “seismic survey represents an attempt to image or map the subsurface of the earth by sending sound energy down into the ground and recording the ‘echoes’ that return from the rock layers below” and “[m]ultiple source/recording combinations are then combined to create a near continuous profile of the subsurface that can extend for many miles.” Etgen ¶ 2. As the Examiner further finds and explains (Ans. 6; Final Act. 13–14), Etgen teaches “a 4-D (or time-lapse) survey is one that is recorded over the same area at two or more different times” and obviously, if successive images of the subsurface are compared, any changes that are observed will be attributable to changes in the subsurface. Etgen ¶ 2. In view of the above findings, which effectively stand unrebutted by Appellant, we agree with the Examiner (Ans. 6–7; Final Act. 13–14) that Etgen teaches or reasonably suggests to one of ordinary skill in the art the “evolution of the underground formation is observed by comparing the image of the underground formation generated using the at least one deblended second dataset with an image of the underground formation generated using the first non-blended dataset” recitations of the claim. Accordingly, we affirm the Examiner’s rejection of claim 22 under 35 U.S.C. § 103 as obvious over Li, Poole, and Etgen. Appeal 2020-001384 Application 14/967,679 17 CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed New Ground 4–8, 13–21, 23 103 Li, Poole 4–8, 13–21, 23 4–8, 13–21, 23 22 103 Li, Poole, Etgen 22 Overall Outcome 4–8, 13–23 This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides that “[a] new ground of rejection . . . shall not be considered final for judicial review.” Section 41.50(b) also provides: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. Appeal 2020-001384 Application 14/967,679 18 (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure § 1214.01. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED; 37 C.F.R. § 41.50(b)