Ex Parte Fleischer-Pedersen

Patent Trial and Appeal BoardAug 31, 2017

13276889 (P.T.A.B. Aug. 31, 2017)

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. 13/276,889 10/19/2011 Knut-Birger Fleischer-Pedersen PGS-10-49US 5072 136970 7590 09/05/2017 Law Office of Richard A. Fagin P.O. Box 593128 San Antonio, TX 78259 EXAMINER RIVERA-CORDERO, ARLYN I ART UNIT PAPER NUMBER 1714 NOTIFICATION DATE DELIVERY MODE 09/05/2017 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): faginr@xp-patents.com docketing@pgs.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KNUT-BIRGER FLEISCHER-PEDERSEN Appeal 2016-000903 Application 13/276,889 Technology Center 1700 Before MARKNAGUMO, JAMES C. HOUSEL, and N. WHITNEY WILSON, Administrative Patent Judges. WILSON, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35U.S.C. § 134 from the Examiner’s July 29, 2014 decision finally rejecting claims 17—21. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We reverse. 1 Appellant states that the real party in interest is PGS GEOPHYSICAL AS. (Appeal Br. 3). Appeal 2016-000903 Application 13/276,889 CLAIMED SUBJECT MATTER Appellant’s invention generally relates to a method for cleaning a survey cable which includes moving a cleaning tool along a survey cable, lifting the survey cable to a surface of a body of water, and rotating two or more scraper wheels against the survey cable (Abstract). Claim 17 is representative and is reproduced below from the Claims Appendix of the Appeal Brief (emphasis added): 17. A survey cable cleaning method comprising: moving a cleaning tool along a survey cable deployed in a body of water; lifting the survey cable to a surface of the body of water, and rotating two or more scraper wheels against the survey cable. REJECTIONS I. Claims 17 and 19-21 are rejected under pre-AIA 35 U.S.C. § 102(b) as being anticipated by Hoogeveen.2 II. Claim 18 is rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Hoogeveen in view of Lepage.3 DISCUSSION “A prior art reference anticipates a patent claim under 35 U.S.C. § 102(b) if it discloses every claim limitation.” In re Montgomery, 677 F.3d 1375, 1379 (Fed. Cir. 2012) (citing Verizon Servs. Corp. v. Cox Fibernet Va., Inc., 602 F.3d 1325, 1336—37 (Fed. Cir. 2010)). In this instance, with regard to independent claim 17, Appellant argues that Hoogeveen does not 2 Hoogeveen et al., US 7,409,919 B2, issued August 12, 2008. 3 Lepage et al., US 2006/0054186 Al, published March 16, 2006. 2 Appeal 2016-000903 Application 13/276,889 disclose a method which includes “lifting the survey cable to a surface of the body of water” (Appeal Br. 9). Thus, the dispositive issue on appeal is whether Hoogeveen discloses this step. This resolution of this issue, in turn, depends on the meaning of the phrase “lifting the survey cable to a surface,” as will be discussed in more detail below. Hoogeveen is directed to a cleaning device for a seismic streamer4 which is rotationally driven by movement of the streamer through a body of water (Hoogeveen, Abstract). As illustrated in the following annotated version of Hoogeveen’s FIG. 1, seismic streamer 10 is towed by seismic vessel 18 near the surface of a body of water 16: r22 FIG. 1 Hoogeveen’s FIG. 1 shows one embodiment of its streamer cleaning device as it is typically used on a seismic streamer. 4 The Examiner finds that the Hoogeveen’s seismic streamer corresponds to the claimed survey cable (Final Act. 3). Appellant does not dispute this finding. 3 Appeal 2016-000903 Application 13/276,889 The Examiner finds that Hoogeveen discloses that the seismic streamer is lifted to a surface of the body of water (Final Act. 3, citing Hoogeveen 2:51—53). Hoogeveen also states that its streamer is towed “near the surface of a body of water 16” (Hoogeveen, 3:12—15). The Examiner construes the phrase “to a surface of the body of water” as including “near” the surface: “Based on the definition of near, lifting the seismic [streamer] near the surface of the water reads on lifting the survey cable to a surface of the body of water as claimed.” (Ans. 4). Accordingly, we must construe the phrase “lifting the survey cable to a surface of the body of water,” and then determine whether it reads on Hoogeveen’s disclosure. It is well established that “the PTO must give claims their broadest reasonable construction consistent with the specification . . . Therefore, we look to the specification to see if it provides a definition for claim terms, but otherwise apply a broad interpretation.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). “[A]s applicants may amend claims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or patentee.” Id. To the extent possible, claim terms are given their ordinary and customary meaning, as they would be understood by one of ordinary skill in the art in question at the time of the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (enbanc). Idiosyncratic language, highly technical terms, or terms coined by the inventor are best understood by reference to the specification. Id. at 1315-16. Extrinsic evidence such as dictionary definitions may be utilized when construing claim terms, so long as the extrinsic evidence does not contradict any definition found in the 4 Appeal 2016-000903 Application 13/276,889 specification, including the claims and written description. Cf. Advanced Fiber Tech. (AFT) Trust v. J&L Fiber Servs., Inc., 674 F.3d 1365, 1374-75 (Fed. Cir. 2012) (internal citations omitted). In this instance, the Specification describes how, in at least one embodiment, the survey cable is lifted “clear of the water” prior to being contacted with the scraper mechanism (Spec. 117). Fig. 1 also shows cable 24A being lifted out of the water by workboat 42 in order to be cleaned (Spec. 116). The Specification also states that the workboat lifts the survey cable “to or above the water’s surface” in conducting the cleaning operation (Spec. 134). Therefore, in light of the disclosure in the Specification, we determine that “lifting the survey cable to a surface of the body of water” means that the cable is raised from a lower level in the water up to the surface. The Examiner determines that because the definition of “near” is “at or within,” and Hoogeveen discloses that its seismic cable is located “near the surface of a body of water” (3:12—15), “lifting the seismic [streamer] near the surface of the water reads on lifting the survey cable to a surface of the body of water as claimed” (Ans. 4). However, the portion of Hoogeveen relied on by the Examiner as disclosing the “lifting” of the seismic streamer (Final Act. 3; Ans. 2) does not mention lifting or raising the streamer, but merely describes towing the streamer through the water: “A method for cleaning a marine streamer according to another aspect of the invention includes towing the streamer through a body of water” (Hoogeveen 2:51— 53). The Examiner correctly notes (Ans. 4) that claim 17 does not require that the entire survey cable be lifted to the surface. However, the Examiner 5 Appeal 2016-000903 Application 13/276,889 has not identified persuasive evidence in Hoogeveen that any portion of the seismic streamer is lifted. While Hoogeveen’s FIG. 1 does show a portion the seismic streamer (attached to the boat towing the array) at the surface, it does not have any teaching or disclosure of lifting (i.e. raising) any portion to the surface as part of the cleaning method. Moreover, as discussed in some detail by Appellant (Reply Br. 3), Hoogeveen’s cleaning tool is actually designed to operate below the surface of the water, which would not lead one of skill in the art to seek to raise the streamer to the surface for cleaning. Thus, the preponderance of the evidence does not support the Examiner’s finding that Hoogeveen discloses “lifting the survey cable to a surface of the body of water.” Accordingly, we reverse the anticipation rejection of claims 17 and 19—21. With regard to the obviousness rejection of claim 18, the Examiner does not make any additional findings with regards to the “lifting” limitation, mandating reversal of that rejection as well. CONCLUSION We REVERSE the rejection of claims 17 and 19—21 under pre—AIA 35 U.S.C. § 102(b) as being anticipated by Hoogeveen. We REVERSE the rejection of claim 18 under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Hoogeveen and Lepage. REVERSED 6