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                        COMMISSIONER'S DECISION

 

NON STATUTORY. SEC. 2:        DISPLAY OF SEISMIC SECTION

 

The display of coordinates in isometric form together with the computer

processing steps is more than merely performing calculations.

 

Final Action: Reversed.

            *****************

 

This decision deals with Applicant's request for review by the Commissioner

of the Final Action on application 285,029 (Class 349-22) assigned to

Seiscom Delta Inc. entitled DISPLAYING SEISMIC SECTIONS IN ISOMETRIC VIEW.

The inventors are L.R. Chapman and R.F. O'Doherty. The Examiner in charge

issued a Final Action refusing to allow the application.

 

The application relates to a three-dimensional display of seismic traces

representing a portion of the earth's subsurface on a two-dimensional grid, in

fence diagram form as shown in figure 1 following.

<IMG>

 

Seismic traces obtained during a survey are recorded as x and y coordinates,

and the beginning and end of all traces are computed and stored. To con-

struct the display all traces having a common x coordinate are retrieved

from storage and positioned to form points in the display as shown by

vertical line 100 on which the vertical y coordinates are marked. By

this method a composite record is developed for each section surveyed and

a fence diagram is formed. This technique facilitates an analysis of the

lateral continuity of events between sections and the making of interpretive

judgements.

 

In the Final Action the Examiner referred to Applicant's invention as "...a

method of displaying 3-D seismic traces on a 2-D display surface in an

isometric view." He then referred to the decision in Schlumberger Canada

Ltd. v The Commissioner of Patents 56 CPR (1981) at p.204 and considered

Applicant's method to be for "...converting measurements into more useful

information..." and was not "...an invention within the meaning of Section 2."

 

In his response Applicant also referred to Schlumberger and quoted a

passage in which Pratte J. said that Section 2 contains no provision "...so

as to exclude inventions involving computers..." .

 

The issue before the Board is whether or not the application and the claims

are directed to patentable subject matter under Section 2 of the Patent Act.

 

Claim 1 reads:

 

   A method of forming on a two-dimensional display surface an

isometric seismic display to simulate a three-dimension view

of seismic traces in plural seismic sections, obtained along

a two dimensional grid of survey lines comprising the steps of:

 

      (a) assigning a two-dimensional, positional relation-

      ship on the display surface to the survey grid lines in

      terms of their respective lengths an d intersection points

      on the display surface according to the isometric view

      to be formed;

 

      (b) assembling the seismic traces in an order with respect

      to each other in accordance with the positional relationship

      assigned to their grid lines by computing horizontal and

      vertical co-ordinates for the beginning and ending of the

      seismic traces; and

 

      (c) displaying the assembled seismic traces on the display

      surface wherein an isometric display is formed of the seismic

      traces with increased information content on the two-

      dimensional display surface.

 

We consider now the relevance to the application of the passages quoted

from the Schlumberger decision during the prosecution. From our reading

of the passage in the Final Action, we understand the Examiner's line of

reasoning as follows. He likened Applicant's method of converting measure-

manta into more useful information by making calculations, to be similar

to the subject matter in the Schlumberger case, interpreting the case as

"...making calculations according to certain formulae to obtain useful

information from measurements". This kind of comparative reasoning is not

unusual in examining applications to determine whether certain subject

matter falls under Section 2, because all things are not patentable under

that Section, for example, methods of medical treatment, vide Tennessee

Eastman v The Commissioner of Patents 1974 SCR 111, and Schlumberger, supra.

 

Turning to the passage quoted by Applicant, we understand it to be part of

the introductory preamble to a consideration of the issue by the Court. We

feel therefore it should be considered together with the first sentence in

the paragraph immediately following the passage quoted by Applicant where

Pratte, J. said

 

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.

 

Pratte, J. then reasoned the discovery in Schlumberger related to the calcula-

tions to be made and to the mathematical formulae to use. He expressed his

view that mental operations and processes are not the kind of processes that

are referred to in the definition of invention in Section 2. He commented

further that computers should not be considered as lending patentability to

things which were clearly not patentable wader the Act. In reaching his

decision Pratte J. said:

 

I am of opinion that the fact a computer is or should be

used to implement discovery does not change the nature of

that discovery. What the appellant claims as an invention

here is merely the discovery that by making certain calcula-

tions according to certain formulae, useful information could

be extracted from certain measurements. This is not, in my

view, an invention within the meaning of section 2.

 

What then is the invention in the application before us? In the Final

Action, the Examiner sees it to be a method of converting measurements

into more useful information by making calculations according to certain

formula. When describing the prior art in his application, Applicant

refers to surveys which have produced readings indicating the variations

in the subsurface of the earth. He sets out his problem as producing a

meaningful display of the features. He maintains throughout the prosecution

that the invention relates to a novel display on a two dimensional surface

of seismic data indicative of a three dimensional subsurface formation.

He advances that what is claimed is the combination of a new sequence of

process steps. He argues he has a process invention involving two aspects,

the 'what' being the combination and sequence of events, the 'how' being the

practical method of carrying it out. He believes the Examiner's characteriza-

tion of the invention only involves a conventional computer and is the

'how'. Applicant contends further his claims constitute the 'what' because

they contain a combination of steps, and do not refer to the 'how', the

computer. In method claim 1 we see parts (a) and (b) provide a description

of steps to assign a position to the grid lines on the display and to

assemble the signals on the grid lines by computing x and y coordinates,

and part (c) calls for displaying the signals to form an isometric display.

 

At this point we find guidance from all the passages from Schlumberger

referred to during prosecution, in conjunction with another observation by

Pratt J. that the mere fact computers perform calculations should not be

viewed as making patentable what under the Act is not patentable. The assess-

went to be made then is whether the application relates to converting

measurements or to a patentable combination of elements. In our view it

is the display of the coordinates in isometric form together with the

computer processing steps that make up Applicant's invention, and the inven-

tion in our opinion is not merely performing calculations. We are satisfied

that the step of displaying an isometric view of a formation b rings the

invention into an art area in which patents may be granted under Section 2,

providing there is conformity with all other parts of the Act.

 

We feel it is appropriate to comment briefly on the art of record in this

application. At least one of the patents made of record by Applicant, United

States Patent 3,931,609 January 6, 1976, corresponding to Canadian

Patent 1,007,352 issued March 22, 1977, pertains to displaying seismic

information in an isometric fence form of diagram to illustrate variations

in the earth's sub surface. Further, two other references submitted by

Applicant demonstrate a three dimensional showing of seismic information,

namely the isometric fence diagram in the Encyclopedia Dictionary of Exploration

Physics, 1973 on pages 77 and 79, and the 1969 article by Dorbin in Computer

Processing of Seismic Reflections. In the claims we observe the steps of

assigning the positional relationship of the seismic signals, assembling the

traces by computing coordinates, and displaying the traces isometrically on a dis-

play surface, are similar to the above art. So far as being directed to

subject matter under Section 2, we find the claims satisfactory. We note however

no art was cited in the Final Action, and we make no ruling with respect to

the patentability of the claims.

 

We recommend that the rejection of the application for being directed to

subject matter not patentable under Section 2 be withdrawn, and the application

returned to the Examiner 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 Action and I remand the application to the

Examiner for prosecution consistent with the findings of the Board.

 

J. A. Gari‚py

Commissioner of Patents

 

Dated at Hull, Quebec

this 6th. day of May, 1985

 

Agent for Applicant

G.H. Riches & Assocts.

Suite 2900

2 Bloor St. East

Toronto, Ont.

M4W 3J5

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