WANG, Ping et al.

Patent Trials and Appeals Board

Dec 2, 2019

14593297 - (D) (P.T.A.B. Dec. 2, 2019)

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.
14/593,297 01/09/2015 Ping WANG 0336-411-2/100712 3673
11171 7590 12/02/2019
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404
EXAMINER
LIANG, LEONARD S
ART UNIT PAPER NUMBER
2862
NOTIFICATION DATE DELIVERY MODE
12/02/2019 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 PING WANG and KAWIN NIMSAILA
Appeal 2019-000604
Application 14/593,297
Technology Center 2800
BEFORE ROMULO H. DELMENDO, BRIAN D. RANGE, and
LILAN REN, Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL1

1 Our decision refers to the Specification (“Spec.”) filed January 9, 2015
and any subsequent amendments, the Final Office Action of November 30,
2017 (“Final Act.”), Appellant’s Appeal Brief of April 23, 2018 (“Appeal
Br.”), and the Examiner’s Answer of August 10, 2018 (“Ans.”). No Reply
Brief was filed.
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STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant,2 CGG SERVICES SA,
appeals from the Examiner’s decision to reject claims 1, 3–8, 10, 11, 13–18,
and 20. Final Act. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claims “generally relate to methods and systems for seismic data
processing and, more particularly, to mechanisms and techniques for
regularization of seismic data.” Spec. ¶ 2. The claims seek to address the
problem “that data are sampled irregularly” during exploration. Id. ¶ 12.
“Data regularization, which interpolates and extrapolates acquired seismic
traces from their original irregular grid onto a regular grid, is an important
process which is used to address this problem.” Id. ¶ 13.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method for regularizing seismic data, said method
comprising:
receiving the seismic data;
transforming the seismic data into a tau-p domain to obtain
transformed seismic data, wherein the tau is a time intercept and
p is a slowness in the tau-p domain;
performing, in a processor, a full rank inversion on a
portion of the transformed seismic data, wherein the portion is
selected based on frequencies lower than a predetermined
frequency;

2 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 the
assignee, CGG SERVICES SA. Appeal Br. 2.
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selecting a highest energy p trace from an output of the full
rank inversion;
regularizing the seismic data to desired positions in the
tau-p domain using at least one low rank sparse inversion applied
to an entire bandwidth of the seismic data, based on the selected
highest energy p trace from the output of the full rank inversion;
and
generating an image of a subsurface associated with the
received seismic data using the regularized seismic data.
REJECTION
Claims 1, 3–8, 10, 11, 13–18, and 20 are rejected under 35 U.S.C.
§ 101. Final Act. 2.
OPINION
Legal Framework
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, our
inquiry focuses on 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
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(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, 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 (1853))); 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 (citations 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. (alterations in original) (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 Office recently published revised guidance on the application of
§ 101. USPTO’s January 7, 2019 Memorandum, 2019 Revised Patent
Subject Matter Eligibility Guidance (“Memorandum”), 84 Fed. Reg. 50.
Under that 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 recites a judicial exception and 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 generally Memorandum.
Analysis
Applying the guidance set forth in the Memorandum, we conclude
that claims 1, 3–8, 10, 11, 13–18, and 20 do not recite patent-eligible subject
matter.
Revised Step 2A, Prong One–Directed to a Judicial Exception
The Memorandum instructs us first to determine whether each claim
recites any judicial exception to patent eligibility. 84 Fed. Reg. at 54. The
Memorandum identifies three judicially-excepted groupings: (1)
mathematical concepts, (2) certain methods of organizing human activity
such as fundamental economic practices, and (3) mental processes. Id. at 52.
We primarily focus here on the first grouping—mathematical concepts.
The Examiner finds that the claims are directed to mathematical
concepts. Final Act. 2–3; Ans. 3. Appellant, on the other hand, argues that
although “the claimed methods and systems regularize and/or optimize the
collected (actual) seismic data using a data regularization algorithm that
combines a sparse tau-p inversion scheme with low-rank optimization,
thereby, achieving computational efficiency, aliasing, and/or proper
treatment of weak events.” Appeal Br. 4. Appellant reasons that the recited
steps “recite with sufficient specificity” as to be patent eligible. Id.
The claims are not directed to a specific exploration tool but to
methods for regularizing seismic data. See Spec. ¶¶ 17, 30 (stating that
“methods and systems are disclosed for regularizing and/or optimizing the
collected (actual) seismic data using a data regularization algorithm that
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combines a sparse tau-p inversion scheme with low-rank optimization” and
that “embodiments are effective for the regularization of strongly spatially-
aliased seismic data while remaining cost-effective”). These methods are
directed to the abstract idea of mathematical concepts, wherein the steps
perform “a data regularization algorithm” as both Appellant and the
Specification acknowledge. Id. ¶ 17; Appeal Br. 4.
More specifically with regard to claim 1 which recites the following
limitations: (1) “receiving the seismic data”; (2) “transforming the seismic
data into a tau-p domain to obtain transformed seismic data, wherein the tau
is a time intercept and p is a slowness in the tau-p domain”; (3) “performing,
in a processor, a full rank inversion on a portion of the transformed seismic
data, wherein the portion is selected based on frequencies lower than a
predetermined frequency”; (4) “selecting a highest energy p trace from an
output of the full rank inversion;” (5) “regularizing the seismic data to
desired positions in the tau-p domain using at least one low rank sparse
inversion applied to an entire bandwidth of the seismic data, based on the
selected highest energy p trace from the output of the full rank inversion”;
and (6) “generating an image of a subsurface associated with the received
seismic data using the regularized seismic data.” These limitations, under
their broadest reasonable interpretation, recite the steps to perform an
algorithm to regularize data. See Spec. ¶¶ 17, 30.
The recited step (2) “transforming the seismic data into a tau-p
domain to obtain transformed seismic data, wherein the tau is a time
intercept and p is a slowness in the tau-p domain” limitations carries out one
or more mathematical concepts. The Specification discloses that the tau-p
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transform may be performed by the following matrices (reproduced image of
paragraph 34 of the Specification is shown as Figure 1):

Figure 1. An image of paragraph 34 of the Specification
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The Specification goes on to provide that “an optimized (regularized)
tau-p model of the seismic data” may be obtained by “perform[ing] a
conjugated-gradient least-squares inversion” and provides various
calculations. For example, the Specification provides a calculation of the
minimum least square using equation (4) which is reproduced below as
Figure 2:

Figure 2. An image of equation (4) of the Specification
The recited steps (3) “performing, in a processor, a full rank inversion
on a portion of the transformed seismic data, wherein the portion is selected
based on frequencies lower than a predetermined frequency,” (4) “selecting
a highest energy p trace from an output of the full rank inversion,” and (5)
“regularizing the seismic data to desired positions in the tau-p domain using
at least one low rank sparse inversion applied to an entire bandwidth of the
seismic data, based on the selected highest energy p trace from the output of
the full rank inversion” are achieved, among other details described in the
Specification, by “a full-rank inversion [which] is performed over high-cut
filtered seismic data using all p’s, and then the most dominant (highest
energy) p’s are used for a low-rank, full-bandwidth inversion.” Spec. ¶ 37.
The remaining recited steps (1) “receiving the seismic data” and (6)
“generating an image . . .” are limitations recited at a high level of
generalization and merely provides the information to be used in the
mathematical concepts recited in limitations (2) – (5) and an output of the
results from the mathematical concepts recited in limitations (2) – (5),
respectively.
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The dependent claims similarly recite mathematical concepts such as
“calculating a conjugate-gradient, least square inversion” (claim 4), and
“performing a reverse tau-p transform on the regularized seismic data”
(claim 8), to name a few.
As the Specification provides, the claimed “methods and systems are
disclosed for regularizing and/or optimizing the collected (actual) seismic
data using a data regularization algorithm that combines a sparse tau-p
inversion scheme with low-rank optimization.” Spec. ¶ 17 Appellant’s
argument that specificity of the steps renders the process patent eligible
(Appeal Br. 4) is not persuasive. Mathematical operations (such as the tau-p
transformation recited by the claims) performed in a specific sequence
nonetheless involve mathematical concepts which are abstract ideas.
Because the claims recite mathematical concepts, we find that the claims are
directed to the judicial exception of an abstract idea in the first prong of the
revised Step 2A of the 2019 Guidelines. See Memorandum, 84 Fed. Reg.
51–52.
Revised Step 2A, Prong Two – Practical Application
Having determined that claims 1, 3–8, 10, 11, 13–18, and 20 are
directed to the abstract idea of mathematical concepts, we next look to
determine whether the claims recite “additional elements that integrate the
judicial exception into a practical application.” MPEP § 2106.05(a)–(c),
(e)–(h); Memorandum, 84 F.3d at 53–54. Integration into a practical
application requires an additional element or a combination of additional
elements in the claim to “apply, rely on, or use the judicial exception in a
manner that imposes a meaningful limit on the judicial exception, such that
the claim is more than a drafting effort designed to monopolize the
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exception.” Memorandum, 84 Fed. Reg. at 53–54; see also id. at 55 (setting
forth exemplary considerations indicative that an additional element or
combination of elements may have integrated the judicial exception into a
practical application).
Here, the Examiner finds that the additional elements claims 1, 3–8,
10,11, 13–18, and 20 recite do not integrate the judicial exception into a
practical application. Final Act. 3; Ans. 5. Only one of the steps in claim 1
recites a structure, namely, “a processor” that “perform[s]” a particular
function. The remaining steps – “receiving,” “transforming,” “selecting,”
“regularizing,” and “generating” may be performed by either a computer or
a human using pen and paper.3 The claims do not recite, and the
Specification does not describe, an improvement to the functioning of a
computer, or to any other technology or technical field. As the Specification
provides, the claims relate to “seismic data processing” and not any
particular seismic tool. Spec. ¶ 2.
Appellant’s argument that the claimed methods provide stabilized data
which may be used both offline and online is not persuasive. Appeal Br. 9.
Contrary to Appellant’s argument that “predicting a desired seismic quantity
at a desired location of a desired depth can occur as the seismic data is
recorded onboard the seismic vessel,” (Appeal Br. 9) the claims are not
limited to such an application. Moreover, to the extent that certain seismic
prediction may be based on the regularized data, Appellant does not support

3 Independent claim 11 recites a processor that is “configured to” perform all
the recited functions. As our analysis herein shows, however, even if all of
the steps were performed by a processor, the claims are nonetheless patent
ineligible.
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this assertion with evidence from the Specification, nor does Appellant
explain what the prediction entails (e.g., a mental assessment by a geologist
which may include no more than a patent ineligible mental process).
Appellant also argues that the claimed methods generate a
subterranean image in a cost effective way. Appeal Br. 9. But such data
outputting and displaying is no more than a well-known result of an
insignificant post-solution activity without transformation. “The notion that
post-solution activity, no matter how conventional or obvious in itself, can
transform an unpatentable principle into a patentable process exalts form
over substance. A competent draftsman could attach some form of post-
solution activity to almost any mathematical formula.” Flook, 437 U.S. at
590; see also Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315,
1328–29 (Fed. Cir. 2017) (the use of a well-known XML tag to form an
index was deemed token extra-solution activity). The cost-saving
production of an image does not integrate the mathematical concepts recited
in the claims into a practical application. See Memorandum, 84 Fed. Reg. at
55 (setting forth examples in which a judicial exception has not been
integrated into a practical application)
There are, in fact, no additional elements directed to a particular
machine or transformation. The claims do not require any step of using the
result of the regularized data – only that “an image of a subsurface” is
generated. As the Examiner points out, “the limitations of the claims are
directed to abstract data collection, processing, and display” and “not
directed to either unconventional structural tools of seismic exploration or
conventional structural tools of seismic exploration used in unconventional
ways.” Ans. 3.
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Step 2 B–Inventive Concept
Because we determine that claims 1, 3–8, 10, 11, 13–18, and 20 are
directed to an abstract idea and they do not include additional elements that
integrate the abstract idea into a practical application, we look to whether
each claim provides an inventive concept, i.e., adds a specific limitation
beyond the judicial exception that is not “well-understood, routine,
conventional” in the field. Memorandum, 84 Fed. Reg. at 56. There is,
however, none other than the abstract idea itself (i.e., carrying out the
mathematical concepts and performing mathematical operations) in the
claims. See Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d
1354, 1359 (Fed. Cir. 2018) (holding that “the ‘inventive concept’ cannot be
the abstract idea itself”).
Accordingly, we conclude that method claims 1, 3–8, 10, 11, 13–18,
and 20 are directed to patent ineligible subject matter under 35 U.S.C. § 101.
Claims 1, 3–8, 10, 11, 13–18, and 20 are directed to the abstract idea of
mathematical concepts performing a regularizing algorithm (Spec. ¶ 30) and
do not recite additional elements that integrate those mathematical concepts
into a practical application. Further, the claims do not recite any application
in seismic technology (other than the output of an image). See Ans. 4 (the
recited method “is nothing more than a data processing implementation that
can be performed on a computer”). “The data is processed and stays on the
computer; it is not implemented in a real-world control or transformation.”
Id. Generating an image using optimized seismic data does not transform
the otherwise pre-empted mathematical concepts. Alice, 573 U.S. at 216
(“We have described the concern that drives this exclusionary principle as
one of pre-emption.”) (citing Bilski v. Kappos, 561 U.S. 593, 612 (2010)
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(“[U]pholding the patent ‘would pre-empt use of this approach in all fields,
and would effectively grant a monopoly over an abstract idea.’”)).
CONCLUSION
The Examiner’s rejection is affirmed.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. §  Reference(s)/Basis Affirmed Reversed
1, 3–8,
10,11, 13–
18, 20
101  Eligibility 1, 3–8,
10,11, 13–
18, 20

Overall
Outcome
1, 3–8,
10,11, 13–
18, 20

FINALITY AND 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