COMMISSIONER' S DECISION
Sections 2 and 28(3), Obviousness: SEISMIC EXPLORATION
The division of the frequency bandwidths of the signal waves to produce
an improved signal-to-noise ratio was found to be proper subject matter under
S 2 and 28(3). The claims defined the inventive difference over the cited
art. Rejection withdrawn.
****************
Patent application 305,977 (Class 349-16) was filed can June 22, 1978 for
an invention entitled "A METHOD OF SEIMIC EXPLORATION". The inventors are
Pierre Gros, Jean Millouet and Philippe Staron and the assignee is Societ‚
Nationale Elf Aquitaine (Production). The Examiner in charge of the applica-
tion wrote a Final Action on December 3, 1982 refusing to allow it to proceed
to patent. In reviewing the rejection, the Patent Appeal Board held a Hear
ing on October 31, 1983 at which Mr. M. Sher, the Patent Agent, represented
the Applicant, assisted by Mr. D. Levy, the French Patent Agent, and Mr. P.
Staron, the inventor.
The subject matter of this application relates to the field of seismic explor-
ation in which each acoustic vibrational wave emitted into the formation of
interest is divided into a plurality of consecutive frequency bands, each
band having a different bandwidth from the adjacent ones. The reflected sig-
nals from the formation subsurface layers are processed to generate final
seismograms.
In the Final Action the Examiner rejected the application as being directed
to non-patentable subject matter under Sections 2 and 28(3) of the Patent Act.
He also cited United States Patent 3,929,144 - December 13, 1966 - Lee et al.
Although he did not say why the Lee patent was cited, in his previous action,
dated January 6, 1982, the Examiner had cited the Lee patent, along with
another, in rejecting claims for obviousness. In the Final Action the Examiner
said the Lee patent was a "Reference Re-applied".
The issues before the Board are whether or not the application is directed
to patentable subject matter under Sections 2 and 28(3) of the Act, and
whether or not the claims are patentable over the cited art. Claim 1 reads:
A method of seismic exploration of a medium which comprises the
steps of:
a) determining a frequency spectrum to be emitted into the
medium to be explored and depending on some characteristics of
said medium,
b) dividing said frequency spectrum into a plurality of bands
so that any two consecutive bands have a different bandwidth and
no interruption between the said bands is provided within said
frequency spectrum,
c) emitting into the medium, at least at one emission point and
by means of at least one emission source, vibrational acoustic
signals of long time duration, each of said signals having a fre-
quency content corresponding to that of one of the frequency bands
and the various signals being emitted one after the other,
d) receiving in at least one receiver the signals resulting from
said emissions and reflected by the reflectors of the medium to be
explored,
e) forming a processed signal for each frequency band by processing
the received signal corresponding to said frequency band with a refer-
ence of the emitted signal associated thereto, and,
f) producing a final seismogram from said processed signals in which,
for each of said frequency bands, an improved signal-to-noise ratio is
obtained whereby said seismogram has an improved signal-to-noise ratio.
At the Hearing, Mr. Sher stressed that in Applicant's method of seismic explor-
ation, the acoustic waves are divided into a plurality of frequency bandwidths,
each bandwidth having a different width from the adjacent ones. He referred
to charts to illustrate that the different bandwidths are emitted into the
formation one after the other in non-overlapping manner. He also referred to
the charts to show that each bandwidth is transmitted and received separately.
He then said that the results obtained for each reception are thereafter
combined. Mr. Staron explained that by sending a plurality of different
bandwidths a reinforcement of the frequencies which are to be absorbed by
the ground to be explored is achieved and provides the improved results
as described in this application. Mr. Sher commented that the claim con-
tained the physical steps of dividing a wave into different bandwidths and
transmitting the bandwidths one at a time and he argued that the facts in
the present application are different from the facts in Schlumberger v
Commissioner of Patents (1981) 56 C.P.R. 204 and that the application con-
tains statutory subject matter under Sections 2 and 28 (3) of the Patent Act.
In considering the issue of patentable subject matter, we refer first to the
Schlumberger decision, supra, in which Pratt J. had these comments:
In order to determine whether the application discloses a
patentable invention, it is first necessary to determine
what, according to the application, has been discovered.
and
I am of the opinion that the fact that a computer is or
should be used to implement discovery does not change the
nature of that discovery.
From the present disclosure, we learn that the "what" Applicant has discovered
is that by emitting into the strata of interest signals which have been divid-
ed into a plurality of different bandwidths, seismograms of an improved signal-
to-noise ratio can be obtained.
In the Final Action the Examiner comments on this discovery and he concludes
that it does not present patentable subject matter. He states, in part, in
his final action:
...
If the mere fact that different signal waves are employed to
produce a new result is of sufficient subject matter for the
grant of a patent the field of patents would be enormously
extended - there might be as many patents as there are possible
signal waves.
...
In the opinion of the Board, however, the subject matter of this application
is not merely a description of the use of different signal waves from those
previously used. Here, the different frequency hand widths of the signal
waves have produced a final seismogram having a new and improved signal-to-
noise ratio. This, in our opinion, constitutes a definite advantage for the
described method of seismic exploration. The application is not, as in
Schlumberger, merely a description of a machine method of manipulating
analytical data and it is not, in our view, merely a mathematical theorem.
We consider, therefore, that the subject matter of this application, being
directed to an improvement in methods of seismic exploration, which methods are
patentable of themselves, should be considered to be patentable under Sections
2 and 28 (3) of the Patent Act.
We next turn to a consideration of whether the claims are directed to patent-
able subject matter in view of the cited art. Lee et al teach one way of
reducing the correlation residues. They divide the received signals into
bands of frequencies and adjust their relative amplitudes. The correlation is
carried out using the adjusted received signals. We find that the Lee et al
patent does not teach the frequency band division of the present application
because its frequency bands have an equal bandwidth. In the present application
an actual way of determining the frequency bands is governed by the criteria
set forth on page 9 of the disclosure. The criteria are dependent upon the
data gathered by previous surveys. This concept of frequency division is the
main characteristic of the present alleged invention. This was argued in the
Applicant's response and was emphasized at the Hearing.
We further find that the Lee et al patent carries out a conventional seismic
exploration with a sweep frequency wave and the data gathered are conventional.
In the patent the data are normalized in accordance with the characteristics of
the medium of interest determined by previous surveys. The present application,
on the other hand, modifies the bandwidths of the signals to be emitted into
the medium in accordance with its previously determined characteristics. The
data thus obtained by receivers contain improved information.
We are satisfied that these differences are significant and not obvious in the
light of the teachings of the cited patent.
In reviewing the claims on file, we note that at the Hearing the Examiner
agreed that claims 8, 22 and 37 were allowable. After careful review of
the application and consideration of the art cited and the arguments pre-
sented, we believe however that all the claims on file properly define
Applicant's discovery. We also find that they are inventively different
from the cited patent and therefore should be allowable.
In summary, we are satisfied that the application is directed to patentable
subject matter under Sections 2 and 28(3) of the Patent Act, and that the
claims are not open to the rejection based on the cited art.
We recommend the rejection of the application for being directed to non
patentable subject matter contrary to Sections 2 and 28 (3) and for non
inventiveness be withdrawn, and the application be returned for continued
prosecution.
A. McDonough M.G. Brown S.D. Kot
Chairman Assistant Chairman Member
Patent Appeal Board
I concur with the findings and the recommendation of the Patent Appeal Board.
Accordingly, I withdraw the Final Act ion and I am remanding the application
to the Examiner for prosecution consistent with the recommendation.
J.H.A. Gari‚py
Commissioner of Patents
Dated at Hull, Quebec
this 29th. day of August, 1984
Agent for Applicant
Swabey, Mitchell, Houle, Marcoux and Sher,
1001 boul. de Maisonneuve ouest,
Suite 800,
Montreal, Quebec,
H3A 3C8