Ex Parte GARCERAN et al

Patent Trial and Appeal BoardAug 24, 2018

14154278 (P.T.A.B. Aug. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/154,278 01/14/2014 Katia GARCERAN 11171 7590 08/28/2018 Patent Portfolio Builders, PLLC P.O. Box 7999 Fredericksburg, VA 22404 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 0336-201-2/100349 3926 EXAMINER ISLAM, MOHAMMAD K ART UNIT PAPER NUMBER 2864 NOTIFICATION DATE DELIVERY MODE 08/28/2018 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 KATIA GARCERAN, DAVID LE MEUR, and ANDRE LEVEQUE Appeal2018-000653 Application 14/154,278 1 Technology Center 2800 Before KAREN M. HASTINGS, JAMES C. HOUSEL, and JEFFREY R. SNAY, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL A. STATEMENT OF THE CASE Appellant filed an appeal under 35 U.S.C. Â§ 134(a) from the Examiner's final decision rejecting claims 1---6, 8-15, and 17-19 under 35 U.S.C. Â§ 101 as being directed to non-statutory subject matter. We have jurisdiction under 35 U.S.C. Â§ 6(b). 2 1 Appellant is the Applicant, CGG SERVICES SA, which, according to the Appeal Brief, is the real party in interest. Appeal Brief (Appeal Br.) 2, filed June 22, 2017. 2 Our Decision additionally refers to the Specification (Spec.) filed January 14, 2014, the Final Office Action (Final Act.) notice emailed December 27, Appeal2018-000653 Application 14/154,278 We AFFIRM. The subject matter on appeal relates to methods for seismic data processing, methods for constraining a surface consistent equation associated with a correction of wavelengths having a surface consistent seismic attribute, and systems for processing seismic data by constraining a surface consistent equation associated with a correction of wavelengths having a surface consistent seismic attribute (see, e.g., claims 1, 2, and 11). The Inventors disclose that surface consistent corrections are commonly used in seismic time processing to correct part of the distortions associated with near-surface irregularities for on-shore seismic recorded data. Spec. ,r 3. According to the Inventors, "it is difficult to solve for the long wavelength components of the solutions to the surface consistent equations, especially when the near-surface variations occur over large areas." Id. The Inventors state that such drawbacks with seismic data processing can be overcome by their invention. Id. ,r,r 7-9. Independent claim 1 is illustrative and is reproduced below from the Claims Appendix of the Appeal Brief. 1. A method for seismic data processing comprising: receiving pre-stack seismic traces associated with a surveyed subsurface; generating a map or scatter of a surface consistent seismic attribute using a first inversion and said pre-stack seismic traces as input for the first inversion; constraining a surface consistent second inversion associated with a correction of wavelengths having the surface consistent seismic attribute and using the surface consistent second inversion to generate a stack of corrected trace data, 2016, the Examiner's Answer (Ans.) notice emailed August 29, 2017, and the Reply Brief (Reply Br.) dated October 24, 2017. 2 Appeal2018-000653 Application 14/154,278 which surface consistent second inversion is used for 2D, 3D, 4D surveys or for a merge of different surveys; and generating a seismic image of the surveyed subsurface based on said stack of corrected trace data. B. DISCUSSION The first step in analyzing whether a claim is directed to patent- eligible subject matter is determining whether the claim is directed to one of the patent-ineligible concepts: laws of nature, natural phenomena, and abstract ideas. Alice Corp. Pty. Ltd. v. CLS Bankint'l, 134 S. Ct. 2347, 2355 (2014) (citing Mayo Collaborative Services v. Prometheus Labs., Inc., 132 S. Ct. 1289 (2012)). If a claim is directed to a patent-ineligible concept, the second step in the analysis is to determine whether additional elements of the claim, "both individually and 'as an ordered combination,"' "'transform the nature of the claim' into a patent-eligible application." Alice, 134 S. Ct. at 2355 (quoting Mayo, 132 S. Ct. at 1297, 1298). Thus, 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. at 2357 (quoting Mayo, at 1297). Here, the Examiner finds claim 1 is directed to the abstract idea of using mathematical equations and compares the claims to those of Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016), which were directed to the collection, analysis, and display of information in a particular field. Final Act. 1 O; Ans. 3. The Examiner finds the additional recitations of claim 1 amount to mere data gathering that is necessary to carry out the abstract idea. Final Act. 10-11. The Examiner makes similar findings for claims 2---6, 8-15, and 17-19, with claim 11 reciting a system 3 Appeal2018-000653 Application 14/154,278 including instructions to implement the abstract idea on a computer and/or generic computer structures. Id. at 11-13. Appellant asserts claim 1 is not directed to an abstract idea because the setup for the constraint depends upon the underlying structure of a surveyed substructure and the invention preserves structural information carried by longer wavelengths. Appeal Br. 5---6. Appellant contends claim 1 is substantially different from the claims in Electric Power Group. Appeal Br. 8-9; Reply Br. 1-2. In light of this, Appellant asserts the claims are similar to the patentable claims of In re Abele, 684 F.2d 902 (CCPA 1982), which regarded an improvement to the CAT scan process, because Appellant's claims "provide an improvement of seismic exploration technique." Id. at 2-3. Appellant's arguments are unpersuasive. Claim 1 is directed to a method for seismic data processing. Specifically, claim 1 recites, among other things, receiving pre-stack seismic traces associated with a surveyed subsurface, generating a map or scatter of a surface consistent seismic attribute via a first inversion using the seismic traces as input, constraining a surface consistent second inversion and using the second inversion to generate a stack of corrected trace data, and generating a seismic image of the surveyed subsurface based on the stack of corrected trace data. As stated by the Examiner, Appellant's Specification describes mathematical equations for accomplishing this. Ans. 2-3; Spec. ,r,r 35, 39-46. We further agree with the Examiner that claim 1 is similar to the claims of Electric Power Group. Ans. 3. The claims of Electric Power Group were directed to systems and methods for performing real-time performance monitoring of an electric power grid by collecting data from 4 Appeal2018-000653 Application 14/154,278 multiple sources, analyzing the data, and displaying the results. Electric Power Group, 830 F.3d at 1351-1352. The Federal Circuit noted that collecting information has been treated as within the realm of abstract ideas, "analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category," and "merely presenting the results of abstract processes of collecting and analyzing information, without more" is abstract and thus the claims focused on the combination of these abstract ideas. Id. at 1353-1354. Recently, the Federal Circuit summarized such a situation in this way: We have explained that claims focused on "collecting information, analyzing it, and displaying certain results of the collection and analysis" are directed to an abstract idea. Electric Power, 830 F.3d at 1353. "Information as such is an intangible," hence abstract, and "collecting information, including when limited to particular content (which does not change its character as information), [i]s within the realm of abstract ideas." Id. ( citing cases). So, too, is "analyzing information . .. by mathematical algorithms, without more." Id. at 13 54 ( citing cases, including Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978), and Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972)). And "merely presenting the results of abstract processes of collecting and analyzing information, without more ( such as identifying a particular tool for presentation), is abstract as an ancillary part of such collection and analysis." Id. (citing cases). The claims here are directed [to] abstract ideas under those principles. SAP America, Inc. v. Investpic, LLC, 890 F.3d 1016, 1021 (Fed. Cir. 2018). Here, the method of claim 1 collects information (i.e., receives pre- stack seismic traces associated with a surveyed subsurface), analyzes the information (i.e., uses a first inversion to generate a map or scatter of a 5 Appeal2018-000653 Application 14/154,278 subsurface consistent seismic attribute and a second inversion to generate a stack of corrected trace data), and presents the results (i.e., generates a seismic image based on the stack of corrected trace data). As a result, Electric Power Group demonstrates that claim 1 is directed to abstract ideas (i.e., the collection of information, the analysis of information, and presentation of the results) under the first step of analyzing whether a claim is directed to patent-eligible subject matter. Appellant's argument that claim 1 and the claims of Electric Power Group do not correspond because the inversions of claim 1 "would not be characterized as a mere 'analysis' of the type in EPG" (Appeal Br. 8-9) is conclusory in nature and insufficient to identify a reversible error. The arguments that "[t]he current claims do not display the results of analyzing the data as in EPG" because two inversions are performed and an output of the processing is a seismic image of a surveyed subsurface, not seismic data (Reply Br. 1-2), are also insufficient to distinguish claim 1 from those of Electric Power Group. Although claim 1 displays different results and a different type of information and using a different type of analysis (i.e., inversions), the recitations of claim 1 are directed to information collection, information analysis (i.e., inversions that produce a map or scatter of a surface consistent seismic attribute and a stack of corrected trace data), and presenting the results (i.e., a seismic image based on the stack of corrected trace data), as discussed above. With regard to the second step in the analysis set forth by Alice, Appellant asserts the steps recited in claim 1 amount to significantly more than the abstract idea because the Examiner fails to consider the claimed generation of a seismic image and because claim 1 is similar to the claims of Research Corporation Technologies Inc. v. Microsoft Corp., 627 F.3d 859 6 Appeal2018-000653 Application 14/154,278 (Fed. Cir. 2010). Appeal Br. 9-10. Specifically, Appellant contends their Specification identifies a problem with conventional seismic data processing and then outlines and explains solutions, with the claimed method yielding an improved image of a surveyed subsurface and thus a more accurate estimate of oil and gas therein. Id. at 10. In view of this, Appellant argues the situation is similar to that of Diamond v. Diehr, 450 U.S. 175 (1981) because a formulaic aspect is not the focus of the claimed method but the claimed method as a whole yields an improvement. Id. at 10-11. These arguments are also unpersuasive. The additional elements of claim 1, both individually and as an ordered combination, do not transform the nature of claim 1 into patent eligible subject matter. As stated by the Examiner at page 3 of the Examiner's Answer, claim 1 does not go beyond requiring the collection, analysis, and display of information in a particular field, similar to the claims of Electric Power Group, and recites functions in general terms. The Examiner further finds that claim 1 merely uses a computer as a tool to perform an abstract idea without including additional element(s) amounting to significantly more. Ans. 4. Implementing an idea on a general purpose computer does not transform it into a patentable apparatus; the idea remains a pre-empted mental process. See Alice at 2354 ("We have described the concern that drives this exclusionary principle as one of pre- emption."), citingBilskiv. Kappas, 130 S. Ct. 3218, 3231 (2010) ("upholding the patent 'would pre-empt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea"'). We agree that claim 1 involves the sort of matter the Supreme Court cautioned against in Alice by stating "transformation into a patent-eligible 7 Appeal2018-000653 Application 14/154,278 application requires 'more than simply stat[ing] the [abstract idea] while adding the words 'apply it."' Id. at 2357 (quoting Mayo at 1294). This is evidenced by the lack of rules with specific characteristics. In McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016), the Federal Circuit disagreed with a district court's determination that claims were "' drawn to the [abstract] idea of automated rules-based use of morph targets and delta sets for lip-synchronized three-dimensional animation."' McRO, 837 F.3d at 1313. Instead, the Federal Circuit determined that "the claims are limited to rules with specific characteristics." Id. at 1313. More specifically, the Federal Circuit stated: [a]s the district court recognized during claim construction, "the claims themselves set out meaningful requirements for the first set of rules: they 'define[ ] a morph weight set stream as a function of phoneme sequence and times associated with said phoneme sequence."' Id. The Federal Circuit determined "[t]he specific, claimed features of these rules allow for the improvement realized by the invention." Id. Claim 1 recites, among other things, receiving pre-stack seismic traces associated with a surveyed subsurface, generating a map or scatter of a surface consistent seismic attribute via a first inversion using the seismic traces as input, constraining a surface consistent second inversion and using the second inversion to generate a stack of corrected trace data, and generating a seismic image of the surveyed subsurface based on the stack of corrected trace data. These recitations are made with a level of generality that does not limit the claims to rules with specific characteristics, as in McRO. As a result, the recitations of claim 1, when considered individually 8 Appeal2018-000653 Application 14/154,278 and as an ordered combination, do not amount to more than the abstract ideas and do not transform claim 1 into patent eligible subject matter. In view of the above, Appellant's contention that claim 1 is similar to claims in Thales Visionix Inc. v. US., 850 F.3d 1343 (Fed. Cir. 2017) (Appeal Br. 8) is unpersuasive. The claims of Thales were directed to an unconventional physical arrangement of inertial sensors and calculations based on a different reference frame to reduce errors. Thales, 850 F.3d at 1348-1349. Appellant does not explain that although their invention regards conventional or generic steps or components (e.g., when considered individually), they are "combined in an unconventional manner" that provides an improvement and thus patent-eligible subject matter under step two of Alice. See Amdocs (Israel) Limited v. Openet Telecom, Inc., 841 F.3d 1288, 1300 (Fed. Cir. 2016) (citing DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256-59 (Fed. Cir. 2014) and BASCOM Glob. Internet Servs. Inc. v. AT & T Mobility LLC, 827 F.3d 1341, 1349-52 (Fed. Cir. 2016)). Appellant's arguments that claim 1 substantially differs from the claims of TL! Communications, LLC v. AV Automotive (Appeal Br. 7-8) are also unpersuasive in view of the above analysis regarding Electric Power Group. Appellant further contends that because no prior art has been found to anticipate or render obvious the method of claim 1, one cannot say that the claimed processing is well understood, routine, and conventional. Appeal Br. 6. This argument is also unpersuasive because case law ( e.g., Electric Power Group) demonstrates claim 1 is directed to an abstract idea, as discussed above. Moreover, we note that the mere fact an abstract idea is novel or non-obvious does not render the subject matter eligible under Â§ 101. 9 Appeal2018-000653 Application 14/154,278 In response to an argument a claim contained an inventive concept because it was not shown to be anticipated under Â§ 102 or obvious under Â§ 103, the Federal Circuit has stated: [t]hat position misstates the law. It is true that "theÂ§ 101 patent- eligibility inquiry and, say, the Â§ 102 novelty inquiry might sometimes overlap." Mayo, 132 S. Ct. at 1304. But, a claim for a new abstract idea is still an abstract idea. The search for a Â§ 101 inventive concept is thus distinct from demonstrating Â§ 102 novelty. Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016). In view of the above, Appellant's arguments do not identify a reversible error in the Examiner's Â§ 101 rejection of claim 1. Appellant argues independent claims 2 and 11 are also not directed to an abstract idea and amount to significantly more than an abstract idea by citing the arguments discussed above for claim 1 and comparing and contrasting claims 2 and 11 with the claims of various cases. Appeal Br. 11-14. Claim 2 is directed to a method that is similar to that of claim 1 by reciting, among other things, the receipt of pre-stack seismic traces, generating a map or scatter based on a priori knowledge of an attribute from seismic trace data and anomalies of the attribute in the seismic trace data, computing a surface consistent equation and generating a stack of corrected trace data, and generating a seismic image. Like claim 1, such recitations are directed to the abstract ideas of collection information, analyzing the information, and providing the results without including significantly more to transform the subject matter into patent eligible subject matter. Appellant's arguments are insufficient to explain why the Examiner 10 Appeal2018-000653 Application 14/154,278 reversibly erred in rejecting claim 2, such as, for example, by explaining how the recitations of claim 2 are directed to an improvement for a particular technology instead of merely implementing the abstract ideas via a generic computer or by explaining how claim 2 includes rules with specific characteristics that allow the improvements Appellant asserts for their invention. Claim 11 is directed to a system for processing seismic data by constraining a surface consistent equation associated with a correction of wavelengths having a surface consistent seismic attribute. Claim 11 recites, among other things, a memory device configured to store pre-stack seismic data and one or more processors. Paragraphs 64---66 of the Specification, however, indicate that these components are generic components and not themselves improvements or an unconventional physical arrangement. Moreover, the system of claim 11 is configured to perform functions similar to the process of claim 2. As discussed above, Appellant's arguments do not identify a reversible error in the Examiner'sÂ§ 101 rejections of claim 2. Appellant does not argue dependent claims 3---6, 8-10. 12-15, and 17- 19 separately from claims 1, 2, and 11. Appeal Br. 5-14. For these reasons and those set forth in the Examiner's Answer, we sustain the Examiner'sÂ§ 101 rejection of claims 1-6, 8-15, and 17-19. C. DECISION The decision of the Examiner is affirmed. 11 Appeal2018-000653 Application 14/154,278 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED 12