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.
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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