BP Corporation North America
[2022] APO 39
•14 June 2022
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
BP Corporation North America [2022] APO 39
Patent Application: 2015355142
Title:Seismic acquisition method
Patent Applicant: BP Corporation North America Inc.
Delegate:Shreyas Kumar
Decision Date: 14 June 2022
Hearing Date: Written submissions filed on 22 October 2021
Catchwords: PATENTS – section 40(3) – examiner’s objection – support – marine seismic surveying for low frequency seismic data to determining from the naturally occurring seismic background noise in the preliminary seismic data and designing an acquisition and processing method to attenuate that noise relative to the desired signal – technical contribution to the art – enabling disclosure – principle of general application – claims comply with subsection 40(3) – claims are inventive – amendments allowable – application to be accepted.
Representation: Patent attorney for the applicant: Spruson & Ferguson
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2015355142
Title:Seismic acquisition method
Patent Applicant: BP Corporation North America Inc.
Date of Decision: 14 June 2022
DECISION
The claims of the application are supported by the matter disclosed in the specification and meets the requirement for Subsection 40(3). The claims are also inventive.
I will allow the amendment request of 31 May 2021.
On this basis, I will accept the application.
REASONS FOR DECISION
Background
The present matter concerns patent application 2015355142 (“the application”) by BP Corporation North America Inc. (“the applicant”). The applicant filed the application on 01 December 2015 as a national phase entry of PCT/US2015/063200 consequently providing the application with an earliest priority date of 02 December 2014.
The application has been the subject of four examination reports. The objection in the first report was that the claimed invention is not for an inventive step. Following responsive submissions from the applicant and a statement of proposed amendments to amend the description and the claims, the examiner raised a clarity objection and maintained the inventive step objection in a second report. A further amendment was made by the applicant in response to the second report. The examiner then raised a lack of support under subsection 40(3) objection in the third report which was maintained again in the fourth report in the presence of submissions from the applicant and a statement of proposed amendments to amend the description and the claims.
On 25 May 2021, the applicant wrote to the Commissioner requesting to be heard in relation to the matter in the fourth report, namely the outstanding objection that the claimed invention was not supported. A further statement of proposed amendment was made on 31 May 2021 with a request for the amendments to be considered at the time of the hearing.
A declaration from the inventor – Joseph A. Dellinger (“the Dellinger declaration”) dated 22 July 2021 was submitted on 13 August 2021 referred to in the applicant’s submission.
On 17 September 2021, the Commissioner wrote to the Applicant indicating that the hearing would be conducted by way of written submissions due to be filed by 29 October 2021. The applicant filed the submissions on 22 October 2021 (“the applicant’s submissions”). The application and prosecution of the case file up to and inclusive of the applicant’s submissions was made by the patent attorney for the applicant Shelston IP which has now changed over to Spruson & Ferguson.
While the final date for acceptance of the application was 29 May 2021, patent subregulation 13.4(1)(g) may be available to extend the time for gaining acceptance to 3 months (or more via subregulation 13.4(3)) from the date of the present decision.
The Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (“the Raising the Bar Act) came into effect on 15 April 2013. As the application was filed after 15 April 2013, the application is subject to the amended provisions of the Act and Regulations. Under subsection 49(1) of the Act the standard proof that applies to the application is the balance of probabilities. This means, that I must accept the application is satisfied on the balance of probabilities that the application complies with the Act, otherwise, I can refuse the application if not satisfied on the balance of probabilities.
The specification
There were seven amendment items proposed during the examination of the application. No objection has been raised to the allowability of the amendments. After the request for a hearing the applicant submitted a statement of proposed amendment with item numbers 8 and 9 to replace pages 1 to 40 (description and claims) on 31 May 2021 with a request for the amendments to be considered. In this decision, I am considering the application as currently proposed to be amended including up to item number 9, and wherever I refer to the specification, it is a reference to the specification (“the specification”) of the application as proposed to be amended.
The specification, as proposed to be amended, ends with 20 claims. Claims 1, 17 and 20 are independent claims.
10. Before commencing to construe the specification, I note what Middleton J said in Eli Lilly and Company Limited v Apotex Pty Ltd [2013] FCA 214, 100 IPR 451 at [139]:
"It is well settled that the Court should, from the outset, approach the task of patent construction with a generous measure of common sense. The Court must place itself in the position of a person skilled in the relevant art, being the subject matter of the patent. From this perspective, the patent is to be read as a whole, in the context of the specification and in light of the prevailing common general knowledge and state of the relevant art at the priority date."
11. Before discussing the details of the invention, it is helpful to understand something of the art.
12. Preliminary seismic data: The specification relates to accessing preliminary seismic data (also referred to as PSD) for background noise measurement and/or attenuation. It can be best described from the specification as previously acquired seismic data or legacy data acquired by conventional acquisition [0048]. I consider that these terms “previously acquired seismic data”, “legacy data” and “preliminary seismic data” are synonymous and used interchangeably. I will refer to this as "preliminary seismic data", as this is the language of the present specification.
13. Narrowband or Low-frequency survey: The specification provides context that “low-frequency surveying” or “LFS” or “Narrowband low-frequency surveying” means that the frequencies are less than about 6-8 Hz. Paragraph [0045] further states:
In this context, "low-frequency" means frequencies less than about 6-8 Hz. Some embodiments will be below about 4 Hz, some of which may employ frequencies as low as about 2 Hz, or about 1.5 Hz, or about 0.5 Hz.
14. Azimuth: The plain meaning of “azimuth” is considered as a horizontal direction expressed as the angular distance between the direction of a fixed point (such as the observer's heading) and the direction of the object. In the context of the invention, “an azimuth of background noise” refers to background noise/sound localisation in the horizontal plane of the area of interest.
The aim of the invention
15. The specification says at page 1, [0004]:
“The presently disclosed invention pertains to seismic surveying and, more particularly, to a technique for low-frequency, seismic acquisition.”
16. This is consistent throughout the specification and with the statement at page 2, [0010]:
“…the need for increased effective signal-to-noise at low frequencies in the acquisition of seismic data continues to drive innovation in the art. In particular, among other things, there is a need for acquisition and processing techniques that enhance acquisition and use of low-frequency seismic data at lower frequencies.”
17. I conclude therefore that the aim of the invention is to provide a method for use in seismic surveying including a designing step to conduct acquisition of noise at low-frequencies and processing using that signal to attenuate noise at those lower frequencies.
The nature of the invention
18. The application is directed to a computer-implemented method for use in seismic surveying, a non-transitory program storage medium encoded with computing instructions and a method for use in marine seismic surveying, wherein the acquisition technique employs a receiver array and a processing methodology that are designed to attenuate the naturally occurring seismic background noise recorded along with the seismic data during the acquisition. The approach leverages the knowledge that naturally occurring seismic background noise moves with a slower phase velocity than the seismic signals used for imaging and inversion and, in some embodiments, may arrive from particular preferred directions. The disclosed technique comprises two steps:
1) determining from the naturally occurring seismic background noise in the preliminary seismic data a range of phase velocities and amplitudes that contain primarily noise and the degree to which that noise needs to be attenuated, and
2) designing an acquisition and processing method to attenuate that noise relative to the desired signal. Some embodiments of the disclosed technique also employ the arrival direction, or azimuth, of the noise because, where available, its use can sometimes prove advantageous.
19. Fig. 4 describes in a flowchart representation one aspect of the invention
20. Fig. 8 discloses an exemplary marine seismic survey design 800 as might be constructed according to an aspect of the invention – with a receiver grid 803 comprised of several receiver lines 806 spaced apart. The axis of greatest suppression of this non-square array is indicated by the arrow 812.
21. Fig. 9 conceptually illustrates one particular low-frequency, marine seismic survey 900 conducted in accordance with the survey design 800 illustrated above in Fig. 8.
The person skilled in the art
22. It is well established that many of the issues in patent examination are answered by reference to the person skilled in the art:
"He is the person to whom the patent is addressed and who must construe it. He is the person whose knowledge will determine whether a patent is novel. He is the person who will judge whether a patent is obvious."
(Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 at [70])
23. However, the person skilled in the art is an artificial construct that is used as a tool of analysis, and there is a danger in trying to identify the person skilled in the art as an actual person or persons:
"The notional person is not an avatar for expert witnesses whose testimony is accepted by the court. It is a pale shadow of a real person – a tool of analysis which guides the court in determining, by reference to expert and other evidence, whether an invention as claimed does not involve an inventive step."
AstraZeneca AB v Apotex Pty Ltd [2015] HCA 30 at [23]
24. In the present case the art is in geophysics and seismic surveying. The person skilled in the art must have knowledge of seismic surveying and seismic data processing in terms of designing seismic receiver arrays to attenuate background noise for marine and land surveying.
The claims
25. The specification, as proposed to be amended, ends with 20 claims. Claims 1, 17 and 20 are independent claims. Claims 1, 17 and 20 are directed towards a computer-implemented method for use in seismic surveying, a non-transitory program storage medium encoded with computing instructions that, when executed, performs a method and a method for use in marine seismic surveying, with similar features as those defined in claim 1. Claims 1 and 17 are directed to seismic surveys in general, whereas claim 20 is confined to a marine seismic survey. Given the similarities my discussion will focus on claim 1.
26. Independent claim 1 is reproduced here:
A computer-implemented method for use in seismic surveying, comprising:
accessing preliminary seismic data from an ocean bottom survey performed over a narrow frequency band;
determining naturally occurring seismic background noise in the preliminary seismic data;
determining, from the naturally occurring seismic background noise in the preliminary seismic data, a range of phase velocities over which the background noise is at an amplitude relative to a desirable signal such that the background noise requires attenuation, an azimuth of the background noise in a survey area of the ocean bottom survey, and a degree to which the background noise needs to be attenuated; and
designing a low-frequency seismic survey of the survey area based on the range of phase velocities, the azimuth of the background noise, and the degree to which the background noise needs to be attenuated, a survey design of the low-frequency seismic survey including:
a seismic receiver array in which a plurality of receivers are positioned on an ocean bottom so as to filter the naturally occurring seismic background noise; and
a seismic source shooting plan;
wherein the accessing, determining, and designing are performed with a computing
apparatus.
27. Dependent computer-implemented method claims (and their corresponding non-transitory program storage claims in parenthesis) 2-3 (18-19), and 4-16 are directed to additional features such as:
· determining the range of phase velocities includes determining minimum and maximum phase velocities;
· a box wave, ocean bottom receiver for preliminary data;
· low-frequency seismic survey conducted at less than or equal to 4 Hz (sic);
· details of a seismic shooting plan, its sail lines spacing and being conducted with a narrow bandwidth;
· the seismic receiver array with widely spaced dense patches of seismic receivers, fat receiver lines with parallel lines of seismic receivers;
· shooting plan further including plurality of low-frequency humming seismic signals;
· designs of a land seismic receiver array for a subsequent low-frequency seismic survey conducted at less than or equal to 4 Hz (sic), with narrow bandwidth; and
· using with the seismic receiver array using widely spaced dense patches of seismic receivers, fat receiver lines with parallel lines of seismic receivers.
The Examiner’s Objection
28. The fourth examination report for the application indicates that amended claims 1-20 (up to items 7 filed on 16 April 2022) meet the requirements for Novelty and Inventive Step. These claims are objected for lacking support under subsection 40(3). The relevant content of the report is as follows:
“I have carefully considered the applicant’s submissions but do not find them persuasive. I maintain that amended claims 1-20 lack support under subsection 40(3).
The applicant has submitted that ‘the independent claims are directed to means of designing a low-frequency seismic survey based not only on the azimuth of the background noise, but also on the range of phase velocities over which the background noise is at an amplitude relative to a desirable signal such that the background noise requires attenuation, and the degree to which the background noise needs to be attenuated’. It is further submitted that ‘the specification provides ample support for the claimed methods of designing a low-frequency seismic survey… FIG. 4 and the corresponding description of FIG. 4… paragraphs [0038], [0047], [0073]-[0074], and [0080]-[0084]
The references provided by the applicant do not appear, however, to provide any specific teaching describing how to design a low-frequency seismic survey on the basis of an azimuth of background noise beyond what was known in the art. Specifically, paragraphs [0038], [0047] and [0073]-[0074] appear to describe known methods for characterising background noise while the remaining references describe the design process in no more than generic terms. Paragraph [0084] states:
As described above, the receiver array is designed to attenuate the naturally occurring seismic background noise 110, and the seismic source shooting plan complements the receiver array design.
And [0082]:
One preferred type of array well known in the art is a “Chebychev array”, which maximizes the minimum attenuation over a specified reject band. Other types of arrays with different useful properties are also possible and are known to those skilled in the art of array design for surface-wave noise attenuation.
It thus appears that that (sic) the specification relies on the common general knowledge to enable the feature of designing a low-frequency seismic survey based on the azimuth of the background noise a (sic) based on the range of phase velocities, the azimuth of the background noise, and the degree to which the background noise needs to be attenuated. As discussed in the second examination report, however, if this proposition is to be accepted then I do not consider the feature of designing a survey based on these parameters to provide for an inventive step as the person skilled in the art would understand the advantages of applying such knowledge.
Responding to this logic, the applicant submitted on the 8th Dec 2020:
These paragraphs and associated Figures 8 and 9 clearly describe how the low-frequency survey is conducted using a receiver array configured to attenuate the azimuth of the background noise. In summary, the survey is initially designed with single receiver arranged in lines. These single receivers are then replaced by receiver arrays 801 that form “fat receiver lines” 806 three nodes wide and spaced apart from each other in order to attenuate the seismic background noise based on azimuths. The fat receiver lines 806 are also spaced apart from each other and are distributed over the entire survey area. This is in contrast to the usual single receiver lines, as described in paragraph [0097] and shown in Figure 5, where ambient noise has not been included in the survey. The survey is then conducted as described above and shown in Figures 8 and 9 to acquire the seismic data, which has filtered out the background noise.
It is therefore submitted that sufficient detail has been provided in the specification as to how the survey is designed and conducted based on the azimuth of the background noise. Consequently, there is no basis for the Examiner asserting that the claimed feature forms part of the common general knowledge in the art.
In light of this previous submission, I maintain that the claims lack support as they are broader than the specific teaching that the applicant has identified as their contribution to the art.”
The applicant’s submissions
29. The main points of the applicant’s submissions are:
· … the technical contribution to the art is in providing a methodology for enhancing acquisition of low-frequency seismic data at lower frequencies by increasing the signal-to-noise ratio for background noise…. That is, the invention’s technical contribution to the art is in providing a technique where a range of phase velocities, azimuth and amplitudes that contain primarily noise and the degree to which that noise needs to be attenuated are determined from the naturally occurring seismic background noise in the preliminary seismic data (Step 1: mentioned in [18] of this decision) and designing a survey having a receiver array that attenuates the background noise based on the range of phase velocities, azimuth and degree to which that noise needs to be attenuated (Step 2: mentioned in [18] of this decision).
· The presently pending claims do not go beyond this technical contribution, but simply embody Steps 1 and 2 into an overall method that includes the additional steps of acquiring or accessing the preliminary seismic data and employing receiver arrays and a seismic source shooting plan for the designed survey.
· The applicant further provides a declaration on 13 August 2021 from the inventor – Joseph A. Dellinger (“the Dellinger declaration”) dated 22 July 2021 which provides a concise summary of the benefits of the invention. The Dellinger declaration further states that:
“While the seismic survey shown inn FIG. 8 is an example of one such low-frequency seismic survey, an expert in the technical field would have understood that the specification does not limit the designed seismic survey to the embodiment presented in FIG. 8. Rather, an expert in this technical field would understand that to properly design the low-frequency seismic survey (including the placement of the receiver arrays in the low-frequency seismic survey design) a variety of other factors need to be considered.”
30. The applicant’s submissions in items [58]-[61] are also considered quite useful to understand how the specification (as originally filed) provides guidance on the design of the seismic survey; how the receiver arrays are used to attenuate the background noise; alternative seismic survey designs and specific embodiments.
Applicable Law
31. The application is governed by the Patents Act 1990 (“the Act”) as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (“the Raising the Bar Act”). The issue of support for the claims is governed by subsection 40(3) which requires that the claim(s) must be supported by matter disclosed in the specification. Burley J discussed the requirement of support in Merck Sharp & Dohme Corporation v Wyeth LLC (“Merck”) (No 3) [2020] FCA 1477 at [546]- [547]:
“In CSR Building Products Ltd v United States Gypsum Company [2015] APO 72, Dr S D Barker adopted the summary provided by Aldous J in Schering Biotech at 252 – 253, which has been often followed in the United Kingdom (emphasis added):
....to decide whether the claims are supported by the description it is necessary to ascertain what is the invention which is specified in the claims and then compare that with the invention which has been described in the specification. Thereafter the court’s task is to decide whether the invention in the claims is supported by the description. I do not believe that the mere mention in the specification of features appearing in the claim will necessarily be a sufficient support. The word “support” means more than that and requires the description to be the base which can fairly entitle the patentee to a monopoly of the width claimed.
That approach encapsulates broadly the claim support obligation under s40(3). To it may be added the requirement that the technical contribution to the art must be ascertained. Where it is a product, it is that which must be supported in the sense that the technical contribution to the art disclosed by the specification must justify the breath of the monopoly claimed”.
32. In CSR Building Products Limited v United States Gypsum Company (“CSR”) [2015] APO 72 that was referred to with approval in Merck, the delegate Dr Barker formulated the following test in order to determine whether a claim is supported by the description.
i) Construe the claims to determine the scope of the invention as claimed,
ii) Construe the description to determine the technical contribution to the art, and
iii) Decide whether the claims are supported by the technical contribution to the art.
33. For the purposes of sec 40(2)(a) and sec 40(3) ‘the invention’ that must be enabled is the invention defined by the claims.
34. In Biogen v Medeva [1997] RPC 1 at 48 Lord Hoffmann explained the concept of an enabling disclosure:
“… the specification must enable the invention to be performed to the full extent of the monopoly claimed. If the [specification] discloses a principle capable of general application, the claims may be in correspondingly general terms. The [applicant] need not show that he has proved its application in every individual instance. On the other hand, if the claims include a number of discrete methods or products, the [applicant] must enable the invention to be performed in respect of each of them.”
35. A feature which is defined in broad terms will be allowable if it can be understood to be a principle of general application – which was described by Lord Hoffmann in the UK court decision Kirin-Amgen Inc. v Hoechst Marion Roussel Ltd [2005] RPC 9 at [112]
“…an element of the claim which is stated in general terms. Such a claim is sufficiently enabled if one can reasonably expect the invention to work with anything which falls within the general term.”
Support Considerations
36. The task here is to:
i)construe the claims to determine the scope of the invention as claimed,
ii)construe the description to determine the technical contribution to the art, and
iii)decide whether the claims are supported by the technical contribution to the art.
Application to the facts of the case: what is the invention as claimed
37. The applicant in paragraphs [49]-[50] of their submissions, identified the steps and integers shared/present in independent claims 1, 17 and 20:
“49. In performing step (a), it can be observed from Section C that the claimed invention defines a method for use in seismic surveying, having the following common steps or integers:
i) accessing preliminary seismic data from an ocean bottom survey performed over a narrow frequency band;
ii) determining naturally occurring seismic background noise in the preliminary seismic data;
iii) determining, from the naturally occurring seismic background noise in the preliminary seismic data, a range of phase velocities over which the background noise is at an amplitude relative to a desirable signal such that the background noise requires attenuation, an azimuth of the background noise in a survey area of the ocean bottom survey, and a degree to which the background noise needs to be attenuated; and
iv) designing a low-frequency seismic survey of the survey area based on the range of phase velocities, the azimuth of the background noise, and the degree to which the background noise needs to be attenuated,
v) a survey design of the low-frequency seismic survey including a seismic receiver array in which a plurality of receivers are positioned on an ocean bottom so as to filter the naturally occurring seismic background noise; and the survey design of the low-frequency seismic survey including a seismic source shooting plan.
50. This method may be computer-implemented and performed by a computer apparatus (claim 1), performed using a non-transitory program storage medium (claim 17) or confined to a marine seismic survey (claim 20).”
38. The plain meaning of the independent claims and its integers i) to v) is that it is directed to seismic surveying wherein it is –
obtaining preliminary seismic data i.e., previously acquired seismic data over a narrower set or band of frequencies,
identifying the background noise that is caused naturally in the preliminary seismic data set,
using the above identified background noise and further identifying,
a range of phase velocities, when the background noise amplitude is sufficient (“to a desirable signal”) such that it can be attenuated,
azimuth of the background noise in a surveying area, and
a factor to which the background noise is to be reduced/attenuated,
designing a low-frequency seismic survey of the survey area based on all the parameters,
including a seismic receiver array in which a plurality of receivers are positioned on an ocean bottom, and a seismic source shooting plan.
Application to the facts of the case: what is the technical contribution to the art
39. The specification states in paragraphs [0008] and [0009]:
Seismic surveying historically has used frequencies in the range of 6-80 Hz for seismic signals because of their suitability in light of technical challenges inherent in seismic surveying. The term “low frequencies” is understood within this historical context as frequencies below which getting sufficient signal to noise with conventional sources rapidly becomes more difficult as the frequency decreases, i.e., below about 6-8 Hz.
The use of low frequencies for imaging with marine seismic data has proven challenging for frequencies below about 6 Hz, particularly for frequencies below about 4 Hz. The challenge is twofold: at lower frequencies the naturally occurring seismic background noise of the Earth gets progressively stronger, and conventional broadband sources such as airguns get progressively weaker. As a result, the signal-to-noise of deepwater marine seismic data can decline at over 30 dB per octave for frequencies below 4 Hz.
40. The applicant’s submissions as listed above also highlights that the technical contribution to the art is in providing a methodology for enhancing acquisition of low-frequency seismic data at lower frequencies by increasing the signal-to-noise ratio for background noise.
41. A fair reading of the specification clearly outlines the difficulties in performing low-frequency seismic survey. The specification also makes it clear in [0093], that the invention is not only limited to marine seismic surveys but may include land surveys.
“Note the design principles exemplified here are the same as for land array design, for which these tools and this methodology were originally designed.”
42. From reading the detailed discussion and paragraphs provided in the applicant’s submissions (which references to the specification paragraph numbers as originally filed), the Dellinger Declaration, and the specification, I am satisfied that the specification makes it clear that the frequency range and amplitudes of the naturally occurring seismic background noise and azimuth of background noise vary with season, weather, sea state as well as the geographical area that is being surveyed. See paragraph [0051] and paragraph [0086] which specifically state:
“The azimuth, amplitude, and frequency range of the ambient noise may vary with season and weather, but the range of velocities is a function of the local geology and should not change.
43. I am satisfied that the technical contribution to the art is in providing a combination of determining and designing steps as below:
· determining a range of phase velocities, azimuth and amplitudes that contain primarily noise and the degree to which that noise needs to be attenuated are determined from the naturally occurring seismic background noise in the previously acquired preliminary seismic data, and
· designing a survey having a receiver array that attenuates the background noise based on the range of phase velocities, azimuth and degree to which that noise needs to be attenuated.
Application to the facts of the case: are the claims supported
44. The independent claims as identified above, are limited to seismic surveying, where depending on the area being surveyed, the previously acquired preliminary seismic data is obtained, background noise is determined by the range of phase velocities and the amplitude that requires attenuation, scanning the azimuth for background noise, and determining the degree to which the noise need to be attenuated. Using this information and data, the independent claims head towards designing a low-frequency survey with a seismic receiver array of a plurality of receivers’ positioned to the specifics of the area being surveyed to attenuate the background noise based on the phase velocities, azimuth and degree to which the noise needs to be attenuated. This is further done with a seismic source shooting plan and accessed, determined and designed using a computer apparatus.
45. Going back to the examination reports on this application, the main focus of lack of support for claims as stated by the examiner in Examination Report No. 3 issued on 12 January 2021 is:
“…… the claims are currently directed to all means of designing a low-frequency seismic survey based on the azimuth of the background noise. It therefore follows that the claims lack support as they extend to ways of designing a survey which owe nothing to the teaching of the specification or any principle it discloses.”
46. The discussion of support in the context of this invention can be resolved by discussing “enabling disclosure” and the “principle of general application”.
47. Subsections 40(2)(a) and 40(3) each require the specification to provide an enabling disclosure of the claimed invention, such that the person skilled in the art can, on the basis of the information disclosed in the application as filed and the common general knowledge in the art, perform the invention over the whole width of the claims, without undue burden or the need for further invention.
48. Subsection 40(3) relates to the claims, which must be consistent with and supported by an enabling disclosure in the body of the specification (i.e., the description, together with any drawings). Given the overlap between the enablement requirements of sec 40(2)(a) and sec 40(3), in most cases where the claims are not supported by an enabling disclosure for the purposes of sec 40(3), the specification will also lack a clear enough and complete enough disclosure under sec (40)(2)(a), and vice versa.
49. Where the claims are more broadly drafted they may be considered enabled if, prima facie:
i.the disclosure teaches a principle that the person skilled in the art would need to follow in order to achieve each and every embodiment falling within a claim; and
ii.the specification discloses at least one application of the principle and provides sufficient information for the person skilled in the art to perform alternative applications of the principle in a way that, while not explicitly disclosed, would nevertheless be obvious to the person skilled in the art.
50. The specification in paragraphs [0034]-[0037] sets up the concepts required to understand the degree of noise attenuation required and techniques of full-waveform inversion (FWI), not necessarily limiting to processing with frequency-domain FWI, but allowing for other processing techniques, such a tomography or imaging via migration [0040]. Paragraphs [0042]-[0051] and figures 1 and 2 then focusses on the area of interest for conducting the survey. Paragraph [0052] provides an example of a classic “box wave” scenario, in the context of acoustic waves from which seismic data recorded are relatively weaker, but with a faster phase velocity that the naturally occurring seismic background noise, including background noise that arrives from a range of azimuths. Paragraph [0078] further discusses the determining steps using what is known in the art as “radar” analysis of the preliminary seismic data. Examples of an area of interest in the deep waters of Gulf of Mexico is discussed subsequently in paragraph [0079]-[0089]. In all these references, it is very clear that the determining step informs the designing steps of a low-frequency seismic survey (receiver arrays). Furthermore, in paragraph [0078] the techniques of ascertaining the azimuth of arrival for the naturally occurring seismic background noise is disclosed with “radar” analysis of the preliminary seismic data. With that information, the design of a low-frequency seismic survey of the survey area is possible (as disclosed in Figures 8 and 9) with the placement of the longitudinal axis of the receiver arrays (812) in parallel with the direction of the background seismic noise (110) as per paragraph [00105]-[00107].
51. I agree with the Applicant that there are several examples in the specification that disclose the designing of a low-frequency seismic survey (receiver arrays) of the survey area based on the range of phase velocities, the azimuth of the background noise, and the degree to which the background noise needs to be attenuated. There are many paragraphs in the specification that discuss varying techniques used in designing the type of receiver arrays. See paragraphs [0052]-[0053] for box wave scenarios, [0087]-[0094] for Chebychev arrays, etc. Of particular interest are paragraphs [0106] and [0107] quoted below:
“Whatever the chosen survey design, individual receivers in the design may be replaced with receiver arrays designed to attenuate the ambient noise relative to the desirable signal. …… The axis of greatest suppression of this non-square array is indicated by the arrow 812.”
and
“The effect of a “fat receiver line” may also be achieved by laying a single cable in a sinuous, zig-zag, sawtooth, or otherwise convoluted manner.”
52. The specification in paragraphs [00136] and [00138], states that:
“The design of the receiver array (at 230’) and the seismic source shooting plan (at 240’) then comprises selecting how to combine receivers into patches to attenuate ambient noise and/or suppress undesirable data from the active source by including dip filtering in the algorithm.”
and
“Essentially, the design of the survey (at 220’) must make do with what has gone before.”
53. The Dellinger declaration states that:
“While the seismic survey shown in Fig. 8 is an example of one such low-frequency seismic survey, an expert in this technical field would have understood that the specification does not limit the designed seismic survey to the embodiment presented in Fig. 8. Rather, an expert in this technical field would understand that to properly design the low-frequency seismic survey (including the placement of the receiver arrays in the low-frequency seismic survey design) a variety of other factors need to be considered.”
54. Considering the above points, the fact that the various parts of the specification provides enough information to suggest that implementation of the two separate steps of the technical contribution would be straight forward and in that there is sufficient disclosure in the description to enable a person skilled in the art to perform the invention over the whole width of the claims, without undue burden or the need for further invention.
55. On balance, I am satisfied that the nature of the work required to work the invention in this regard, giving regard to the combination (emphasis added) of steps of determining and then designing the receiver arrays as mentioned above in this decision [38], is in the nature of routine experiments with a view to making the invention work, rather than a research program. Put another way, in the context of the present claims, I consider that the “designing of a low-frequency seismic survey (receiver arrays) of the survey area based on the range of phase velocities, the azimuth of the background noise, and the degree to which the background noise needs to be attenuated” are principles of general application.
56. I am satisfied that a skilled person equipped with the common general knowledge, would find the specification sufficient and useful to design a low-frequency seismic survey suitable to the specific area of survey using the preliminary steps defined in the claim and the principles disclosed in the specification for the design.
57. The scope of the independent claims do not go beyond this technical contribution to the art, but simply embody the steps a) and b) identified above ([43]) including additional steps of incorporating a seismic source shooting plan and accessing, determining and designing using a computer apparatus.
58. Consequently, the scope of the independent claims (and dependent claims) are supported by the technical contribution to the art disclosed in the specification.
Inventive Step
59. Additionally, for the sake of completeness, the examiner in the fourth examination report (Examination report No. 4 dated 12 May 2021) made a reference to common general knowledge and inventive step:
“It thus appears that that (sic) the specification relies on the common general knowledge to enable the feature of designing a low-frequency seismic survey based on the azimuth of the background noise a (sic) based on the range of phase velocities, the azimuth of the background noise, and the degree to which the background noise needs to be attenuated. As discussed in the second examination report, however, if this proposition is to be accepted then I do not consider the feature of designing a survey based on these parameters to provide for an inventive step as the person skilled in the art would understand the advantages of applying such knowledge.”
60. The common general knowledge was defined by Aickin J in Minnesota Mining and Manufacturing Co v Beiersdorf (Australia) Ltd (1980) 144 CLR 253 at 292 as:
“The notion of common general knowledge itself involves the use of that which is known or used by those in the relevant trade. It forms the background knowledge and experience which is available to all in the trade in considering the making of new products, or the making of improvements in old, and it must be treated as being used by an individual as a general body of knowledge.”
Obviousness in light of the citation D1: US 4758998 A
61. Examination report No. 2 dated 6 October 2020, issued based on amendment items 1 and 2 filed on 31 August 2020, was the last time an Inventive step objection using D1 was taken in the prosecution history of this case. While Examination report No. 4 dated 12 May 2021 makes a reference to the Inventive step objection in Examination report No. 2 (see [59] above), it is best to discuss the objection here.
62. To understand the objection raised by the examiner in Examination report No. 2, an excerpt of the distinguishing features and its discussion is presented below:
“….
The claimed invention is distinguished from D1 by:
the seismic survey being a low-frequency seismic survey; and
determining from naturally occurring seismic background noise in the preliminary seismic data an azimuth of the background noise in the survey area of the ocean bottom survey, or design of the survey based on the azimuth of the background noise.
In relation to first point of difference, the person skilled in the art would understand that the methods of D1 are equally applicable to low-frequency (<6-8 Hz) exploration and the advantages of such methods (see D3, figure 3A; paragraphs [0057], [0064]).
In relation to the azimuth of background noise, the Applicant has submitted ‘that it does not necessarily flow from the teachings of D1 that an azimuth of the background noise in a survey area of an ocean bottom survey is determined and used to design a low frequency seismic survey of the survey area’.
I respectfully disagree. While the amended specification provides explicit disclosure on how the azimuth of background noise is ascertained from a radar analysis (p [0088]); there is no explicit disclosure as to how the azimuthal data is used in designing the low-frequency seismic survey. Specifically, p[0089] states that the receivers are positioned so as to filter the naturally occurring seismic background noise, however, a detailed description of this positioning does not appear to take into account any azimuthal data.
Since there is no explicit detail of how the low-frequency seismic survey is conducted on the basis of an azimuth of background noise; this feature appears to be a matter of common general knowledge well within the capabilities of a PSA to implement in a routine and non-inventive manner.
Given that ambient seismic noise is well known to be directional in nature (see D5: abstract, ’the dominant ambient noise sources are distributed inhomogeneously in azimuth’; D6: abstract, ‘the noise is highly monodirectional at all sites’), it would be obvious to the person skilled in the art to both determine the azimuth of the background noise and take this into account when designing a low-frequency seismic survey.
Similar reasoning applies to independent medium and method claims 17 and 20 respectively.”
63. While there are subsequent amendments filed since Examination report No. 2 to the description and claims, I will consider D1 in the context of the specification (claims) specified throughout this decision, i.e., including amendment item number 9 filed on 31 May 2021.
64. The Examiner has indicated in that report - D1 discloses the features of accessing preliminary seismic data, determining naturally occurring seismic background noise, and then designing a survey based on the phase velocities, and degree of attenuation required, including a seismic receiver array and shooting plan. The Examiner while identifying the distinguishing features, lists them as two points. For the purposes of this discussion, I will rename them as a) and b) (my emphasis in bold):
a) the seismic survey being a low-frequency seismic survey; and
b) determining from naturally occurring seismic background noise in the preliminary seismic data an azimuth of the background noise in the survey area of the ocean bottom survey, or design of the survey based on the azimuth of the background noise.
65. D1 discloses that when reviewing a particular area to be surveyed, the coherent seismic wave velocities need to be determined (D1, col. 6, lines 7-11). The noise waves, or signals which are desired to be excluded from the seismic energy signals, also need to be determined from the seismic wave velocities (D1, col. 6, lines 11-13). The maximum and minimum frequencies are selected after determining the noise wave velocities to obtain the shortest wavelength and the longest wavelength of the horizontally travelling crossline noise that is to be attenuated (D1, col. 6, lines 16-20). Once the noise wave velocities and the minimum and maximum frequencies in wavelengths have been determined, then an array of seismic energy receiver elements is designed, (D1, col. 6, lines 21-25). Additionally, in D1, the array of seismic energy receiver elements can be designed by only considering the noise wave velocities and the minimum and maximum frequencies in wavelengths, without considering an azimuth of the background noise.
66. In the disclosure of D1, the lowest frequency employed is specified at 10 Hz, see D1 example 1, column 10, fmin =10 Hz and in Fig. 4a.
67. Using the plain meaning of the independent claims as discussed above in [38], the step of designing of a low-frequency seismic survey is interlinked with what is obtained from the determining step, which limits to using azimuth of the background noise in the survey area as well as the range of phase velocities where the amplitude of the background noise is sufficient for the task of attenuation. The designing step comes after this determining step. There is nothing to suggest that the person skilled in the art would be motivated to modify the method described in document D1 to add another requirement of adding an azimuth of the background noise, to determine and design a low-frequency seismic survey along with combination of features to arrive at a method falling within the terms of the amended claims of the current application.
68. Regarding obviousness in light D1 and the common general knowledge in the art, it must be borne in mind that the invention is not just in the designing of a low-frequency seismic survey, but is a combination of factors and pre-assessments/determination and processing based on the selected area of survey that lead to the design, which is a combination of integers. With the challenges and difficulty in low-frequency seismic survey techniques identified above in this decision and in the Dellinger declaration, I am not convinced that it would have been obvious (i.e. a matter of routine) to combine that combination of integers into designing a new low-frequency seismic survey based on the range of phase velocities, the azimuth of the background noise, and the degree to which the background noise needs to be attenuated in order to solve the particular problem. Consequently, it has not been shown that the invention lacks inventive step in light of disclosure of D1 in combination with common general knowledge in the art.
69. Therefore, independent claims and subsequent dependent claims are not obvious in light of the citation D1.
Conclusion
70. I find the claims to comply with section 40(3). All claims of the application are supported by the specification in compliance with S40(3) of the Act.
71. Furthermore, claims 1-20 do not lack an inventive step in light of the common general knowledge and prior art D1.
72. I will allow the amendment request (Fourth Statement of Proposed Amendments) of 31 May 2021 and accept the application.
Shreyas Kumar
Delegate of the Commissioner of Patents
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