Ex Parte TONCHIA

Patent Trial and Appeal Board

Aug 28, 2018

13680320 (P.T.A.B. Aug. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/680,320 11/19/2012 Helene TONCHIA
11171 7590 08/30/2018
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.
0336-088/100189 1321
EXAMINER
NOLAN, JOHN T
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
08/30/2018 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 HELENE TONCHIA
Appeal2017-007782
Application 13/680,320 1
Technology Center 3600
Before KEN B. BARRETT, ERIC C. JESCHKE, and
ANTHONY KNIGHT, Administrative Patent Judges.
KNIGHT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a Final Office action
dated January 12, 2016 ("Final Act."), rejecting claims 1-20. We have
jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 According to Appellant, the applicant, CGGVERITAS SERVICES SA, is
the real party in interest. Br. 2.
Appeal2017-007782
Application 13/680,320
CLAIMED SUBJECT MATTER
The claims are directed to methods, systems, and mechanisms for
using a source steering device to steer a seismic source array towed by a
vessel. Spec. ,r,r 1, 28. Claims 1, 11, and 20 are independent. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method for steering a seismic source array in a body
of water during a seismic survey, the method comprising:
measuring an actual position of the seismic source array;
calculating a virtual position of the seismic source array,
wherein the virtual position corresponds to a position of the
seismic source array when towed with no adjustment from a
source steering device;
retrieving a pre-plot path that includes desired positions of
the seismic source array for the seismic survey;
actuating the source steering device to bring the actual
position of the source array on the pre-plot path; and
steering the vessel based on the virtual position so that the
virtual position lies on the pre-plot path.
REJECTION
The Examiner made the following rejection:
Claims 1-20 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over Holo (US 2007 /0064526 Al, published Mar. 22, 2007)
and Storteig et al. (US 2008/0175097 Al, published July 24, 2008)
("Storteig").
2
Appeal2017-007782
Application 13/680,320
Claim 1
OPINION
The Examiner finds that Holo discloses a method of steering a seismic
source array including, inter alia, measuring an actual position of the
seismic source array, calculating a virtual position or tracking point (TP) of
the seismic source array, retrieving a pre-plot path, actuating a source
steering device to bring the actual position of the seismic source array on the
pre-plot path, and steering the vessel based on the virtual position. Final
Act. 2 (citing Holo ,r,r 7, 12, 17, 18, 36, 43, 77). The Examiner states that
"Holo does not explicitly disclose the virtual position corresponds to a
position of the seismic source array when towed with no adjustment from a
source steering device." Id. at 2-3. According to the Examiner, Storteig
teaches "towing a source according to a non-steered tow position (i.e. virtual
position)." Id. at 3. The Examiner finds that Storteig teaches that "generally
towed objects fall in towards their non-steered tow position." Id. (citing
Storteig ,r 36.). With these findings, we understand the Examiner to rely on
the non-steered tow position in Storteig as the recited "virtual position."
In concluding that the combination of Holo and Storteig would have
been obvious, the Examiner reasons that modifying Holo with the identified
"virtual position" from Storteig would have been "obvious to try." Id. In
particular, the Examiner states "the virtual position is one of a predictable
and ascertainable group of similar possibilities which addresses the need for
a tracking point toward which to steer the vessel to provide course
adjustment to source position with a reasonable level of success." Id.
Appellant argues that the Examiner's reasoning for the combination of
Holo and Storteig is unclear because the Examiner does not state what the
3
Appeal2017-007782
Application 13/680,320
"group of similar possibilities" is or define what possibilities are
contemplated by the Examiner. Br. 14. Appellant further argues that Holo
does not steer the vessel toward the tracking point and thus the Examiner's
reference to a "need for a tracking point toward which to steer" in the
reasoning statement (Final Act. 3) is in error. Id. Appellant contends that in
the Final Action it is unclear why one skilled in the art would need to bring
the virtual position, as defined by the Examiner, in Storteig into Holo
because Holo already discloses calculating a residual equal to the difference
between a tracking point and a pre-plot track to create a set point used to
steer the vessel. Id.
In response, the Examiner states that the combination is entirely
proper because Holo and Storteig are analogous art and configured to
accomplish the same purpose. Ans. 11. The Examiner states that the only
difference between the references is the choice of reference point used to
guide the vessel. Id. at 12. The Examiner's position, in response to
Appellant's argument, is that the "group of similar possibilities" are the
ways in which to define the virtual position. Id. The Examiner also
acknowledges that Holo is not steered to the tracking point. Id.
The burden of establishing the prima facie case is on the Examiner.
See In re Rijckaert, 9 F.3d 1531, 1532 (Fed. Cir. 1993) ("In rejecting claims
under 35 U.S.C. § 103, the examiner bears the initial burden of presenting a
prima facie case of obviousness. Only if that burden is met, does the burden
of coming forward with evidence or argument shift to the applicant."). See
also KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007) (quoting In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)) ("[R]ejections on obviousness
grounds cannot be sustained by mere conclusory statements; instead, there
4
Appeal2017-007782
Application 13/680,320
must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.").
Here, the Examiner's analysis is not sufficiently detailed and complete
to support a conclusion that the claimed subject matter would have been
obvious. The Examiner's reasoning for the combination of Holo and
Storteig is that it would have been "obvious to try" and that the recited
"virtual position is one of a predictable and ascertainable group of similar
possibilities." Final Act. 3; see KSR, 550 U.S. at 421 (finding that the
"obvious to try" rationale is based on choosing from a finite number of
identified, predictable solutions, when there is a design need or market
pressure to solve a problem). The Examiner does not offer sufficient
evidence that there are a finite number of identified, predictable solutions to
solve a problem evidenced by design need or market pressure to support the
stated "obvious to try" rationale. More specifically, the Examiner has not
provided adequate support for the statement that "virtual position is one of a
predictable and ascertainable group of similar possibilities" (Final Act. 3) to
support the position that it would have been obvious to modify the "tracking
point" -based system in Holo with the "non-steered tow position" -based
system of Storteig to allegedly arrive at the claimed invention. The
Examiner's statement, in the Answer, that "[t]he 'group of similar
possibilities' to which Examiner was referring are the ways in which to
define the virtual position of the source array which is to be kept on the pre-
plot path" does not identify any record support and does not remedy the
deficiency discussed above. Ans. 12; see also In re Cyclobenzaprine
Hydrochloride Extended-Release Capsule Patent Litig., 676 F.3d 1063,
1073 (Fed. Cir. 2012) ("[W]here the prior art, at best, '[gives] only general
5
Appeal2017-007782
Application 13/680,320
guidance as to the particular form of the claimed invention or how to achieve
it,' relying on an 'obvious-to-try' theory to support an obviousness finding is
'impermissible."' (quoting In re Kubin, 561 F3d 1351, 1359 (Fed. Cir.
2009)).
Regarding the Examiner's proposed combination of the teachings of
Holo and Storteig, the Examiner opines that the reasoning is supported
because the references are analogous art, and, as such, it would been obvious
to combine them. See Ans. 11. However, although it is required that
references be analogous in order to be combined in an obviousness rejection
(see In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004)), this alone is not
sufficient to establish a reason to combine reference teachings.
We agree with Appellant that the Examiner has not provided adequate
factual evidence or persuasive reasoning to explain how or why a person of
ordinary skill in the art would modify Holo' s tracking point with the virtual
position of Storteig. Accordingly, as the Examiner has not established by a
preponderance of the evidence that Holo and Storteig teach or disclose all of
the limitations of claim 1, the rejection is not sustained.
Claims 2-10
Claims 2-10 depend from claim 1. Br. 22-24 (Claims App'x.). The
Examiner relies on the same deficient findings and reasoning based on Holo
and Storteig discussed above, regarding claim 1 (see supra the rejection of
claim 1 ). Thus, for the same reasons discussed above, we do not sustain the
rejection of claims 2-10.
6
Appeal2017-007782
Application 13/680,320
Claims 11-20
Claims 11 and 20 are independent claims, but contain limitations
similar to claim 1. Compare Br. 22 (Claims App'x.), with id. at 25, 28.
Claims 12-19 depend from claim 11. Id. at 25-27 (Claims App'x.). The
Examiner relies on the same deficient findings and reasoning based on Holo
and Storteig discussed above, regarding claim 1 (see supra the rejection of
claim 1 ). Thus, for the same reasons discussed above, we do not sustain the
rejection of claims 11-20.
DECISION
For the above reasons, the Examiner's rejection of claims 1-20 is
reversed.
REVERSED
7