In-Depth Geophysical, Inc. v. ConocoPhillips Company

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Trials@uspto.gov 	Paper No.14
571-272-7822 	Entered: September 6, 2019
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
IN-DEPTH GEOPHYSICAL, INC. AND
IN-DEPTH COMPRESSIVE SEISMIC, INC.,
Petitioners,
v.
CONOCOPHILLIPS COMPANY,
Patent Owner.
Case IPR2019-00849
Patent 9,632,193 B2
Before SCOTT A. DANIELS, JAMES A. TARTAL, and
SCOTT C. MOORE, Administrative Patent Judges.
DANIELS, Administrative Patent Judge.
DECISION
Denying Institution of Inter Partes Review
35 U.S.C. § 314(a)

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Patent 9,632,193 B2
I. 	INTRODUCTION
A. Background
In-Depth Geophysical, Inc. and In-Depth Compressive Seismic, Inc.
(“Petitioners”) filed a Petition to institute an inter partes review of
claims 1–6 of U.S. Patent No. 9,632,193 B2 (“the ’193 patent”). Paper 1
(“Pet.”). ConocoPhillips Company (“Patent Owner”) filed a Preliminary
Response. Paper 9 (“Prelim. Resp.”).
Under 35 U.S.C. § 314, an inter partes review may not be instituted
“unless . . . there is a reasonable likelihood that the petitioner would prevail
with respect to at least 1 of the claims challenged in the petition.” Upon
consideration of the Petition and Preliminary Response and for the reasons
explained below, we determine that Petitioners have not shown that there is
a reasonable likelihood that it would prevail with respect to at least one of
the challenged claims. As such, we do not institute an inter partes review of
claims 1–6 of the ’193 patent.
B. Additional Proceedings
The parties indicate that the ’193 patent is asserted against Petitioners
by Patent Owner in ConocoPhillips Company v. In-Depth Compressive
Seismic, Inc. and In-Depth Geophysical, Inc. No. 4:18-cv-00803, in the
United States District Court for the Southern District of Texas. Pet. 8,
Paper 7, 1.
C. The ’193 Patent
The ’193 patent describes a computer-implemented method using
compressive sensing for processing and interpreting irregularly acquired
seismic data that recovers and reconstructs regularly sampled data to
determine “an optimal sampling grid during seismic data reconstruction.”
Id. at 1:28–30, Abst.
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The ’193 patent has an effective filing date of November 1, 2013. Ex.
1001, at [60]. Petitioners do not suggest a different priority date in their
Petition.
D. The Alleged Grounds of Unpatentability
Petitioners contend that the challenged claims are unpatentable on the
following specific grounds based on 35 U.S.C. § 103.
References 	Basis 	Claims
Challenged
Li 1 , Donoho 2 , Hennenfent I 3 , and Hennenfent
II 4
§ 103 	1, 5, and 6
Li, Donoho, Hennenfent I, Hennenfent II, and
Essays and Surveys 5
§ 103 	2 and 3
Li, Donoho, Hennenfent I, Hennenfent II, and
International Encyclopedia 6
§ 103 	4
1 Ex. 1005, Chengbo Li, Charles C. Mosher and Sam T. Kaplan,
I NTERPOLATED COMPRESSIVE SENSING FOR SEISMIC DATA RECONSTRUCTION ,
(2012) Conference Paper, SEG (Society of Exploration Geophysicists)
(2012), SEG Las Vegas Annual Meeting.
2 Ex. 1012, David L. Donoho, Michael Elad, and Vladimir N. Temlyakov,
STABLE RECOVERY OF SPARSE OVERCOMPLETE REPRESENTATIONS IN THE
PRESENCE OF NOISE , IEEE Transactions On Information Theory, Vol. 52,
No. 1, (Jan. 2006).
3 Ex. 1008, Gilles Hennenfent and Felix J. Herrmann, APPLICATION OF
STABLE SIGNAL RECOVERY TO SEISMIC D ATA I NTERPOLATION, Earth &
Ocean Sciences Department, University of British Columbia, (2006).
4 Ex. 1010, Gilles Hennenfent and Felix J. Herrmann, SIMPLY DENOISE:
WAVEFIELD RECONSTRUCTION VIA J ITTERED UNDERSAMPLING, Geophysics,
Vol. 73, No. 3 (June 2008).
5 Ex. 1013, Paola Festal and Mauricio G.C. Resende, GRASP: AN
ANNOTATED BIBLIOGRAPHY, Essays And Surveys In Metaheuristics (2002).
6 Ex. 1015, Stochastic Global Optimization, International Encyclopedia,
(2011).
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Petitioners support their challenge with a Declaration of Ozgur
Yilmaz, B.S. (Mathematics), B.S.E.E., Ph.D. (Mathematics), (Ex. 1014).
Because it is dispositive of the Petition and all of the challenges
presented, we address at the outset Petitioners’ assertion of Li as a primary
reference in each of the above noted challenges, and consider Patent
Owner’s arguments that Li does not qualify as prior art under 35 U.S.C.
§§ 102 and 311(b) as a printed publication accessible more than a year
before the purported November 1, 2012, priority date of the ’193 patent.
Pet. 11, Prelim. Resp. 11.
E. Printed Publications
The scope of an inter partes review is limited. In particular,
35 U.S.C. § 311(b) provides:
SCOPE.—A petitioner in an inter partes review may request to
cancel as unpatentable 1 or more claims of a patent only on a
ground that could be raised under section 102 or 103 and only on
the basis of prior art consisting of patents or printed publications.
Petitioners contend Li qualifies as prior art under 35 U.S.C. § 102(a)(1), as a
printed publication, because it was published more than a year before the
priority date of the ’193 patent.7 Pet. 11. Patent Owner argues that
Petitioners have failed to meet their burden to show that Li, in fact, qualifies
as a printed publication that was publically available more than one year
prior to the effective filing date of the ’193 patent in accordance with 35
7 Because the ’193 patent has an effective filing date subsequent to
March 15, 2013, the effective date of applicable amendments to the Leahy-
Smith America Invents Act (“AIA”), 125 Stat. 284 (2011), we refer to the
AIA version of § 102.
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U.S.C. § 102(b)(1). Prelim. Resp. 10 (citing Medtronic, Inc. v. Barry, 891
F.3d 1368, 1380 (Fed. Cir. 2018)).
The determination of whether a given reference qualifies as a prior art
“printed publication” involves a case-by-case inquiry into the facts and
circumstances surrounding the reference’s disclosure to members of the
public. In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004). The key
inquiry is whether the reference was “sufficiently accessible to the public
interested in the art” before the critical date. In re Cronyn, 890 F.2d 1158,
1160 (Fed. Cir. 1989); In re Wyer, 655 F.2d 221, 226 (CCPA 1981). “A
given reference is ‘publicly accessible’ upon a satisfactory showing that
such document has been disseminated or otherwise made available to the
extent that persons interested and ordinarily skilled in the subject matter or
art exercising reasonable diligence, can locate it.” Suffolk Techs., LLC v.
AOL Inc., 752 F.3d 1358, 1364 (Fed. Cir. 2014) (quoting SRI Int’l, Inc. v.
Internet Sec. Sys., Inc., 511 F.3d 1186, 1194 (Fed. Cir. 2008)). To qualify as
a printed publication, a document “must have been sufficiently accessible to
the public interested in the art.” In re Lister, 583 F.3d 1307, 1311 (Fed. Cir.
2009) (citations omitted).
1. Petitioners have not made a threshold showing that Li is a prior
art printed publication
Petitioners characterize Li as a printed publication, offering the
following explanation:
Li (IDG-1005) was published by September 2012 according to
Researchgate (IDG-1011, at p. 1), an office action in a related
foreign proceeding (IDG-1006, at p. 1) and the Patent Owner in
response 	to 	the 	foreign 	office 	action 	(IDG-1007, 	at 	p. 	6
(replacement 	specification), 	¶7), 	making 	it 	prior 	art 	under
35 U.S.C. § 102(a)(1).
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Pet. 11. We address Petitioners’ specific evidence as to publication and
public accessibility of Li below.
Researchgate (Ex. 1011)
Petitioners refer us to Exhibit 1011, a copy of a website page
originating from www.researchgate.net, (“Researchgate exhibit”), which
lists the title “Interpolated Compressive Sensing for Seismic Data
Reconstruction,” as “Conference Paper · September 2012 with 45 Reads.”
Ex. 1011, 1. Researchgate exhibit lists authors Chengbo Li, Charles C.
Mosher, and Sam T. Kaplan,8 and apparently contains an abstract of the
conference paper. Id. The exhibit includes a representation of what would
be a clickable button on the actual website below the abstract, the button
states, “Request full-text.” Id.
Related EPO Application (Ex. 1006)
Petitioners also refer to a communication from the European Patent
Office, (“EPO”), in related European counterpart Application
No. EP14857735.6, to the ’193 patent. Ex. 1006, 4. Li is asserted by the
EPO Examiner as the primary reference in combination with Hennenfent I,
which together, according to the EPO Examiner, render claim 1 “not
inventive.” 9 Ex. 1006, 4. Additionally, the “Background” section of the
specification of the same EPO application identifies Li as “SEG Technical
8 Li, Mosher, and Kaplan are all named inventors of the ’193 patent.
Ex. 1001, 1 (72).
9 Claim 1 in the EPO application is basically the same as claim 1 at issue in
this proceeding, except that EPO claim 1 originally included the further
limitation “wherein the sample grid is determined via randomized greedy
algorithm method or via stochastic global optimization method.” Compare
Ex. 1007, 2 with Ex. 1001, 18:5–29.
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Program Expanded Abstracts 2012, 1 September 2012 (2012-09-01), pages
1–6.” Ex. 1007, 6.
Patent Owner’s Arguments
Patent Owner argues that Petitioners’ evidence of alleged publication
is insufficient to show that Li is a printed publication that was publically
accessible more than one year prior to the effective filing date of the ’193
patent. Prelim. Resp. 11–18. With respect to Researchgate exhibit, Patent
Owner makes four specific arguments which we summarize below.
Patent Owner first argues that the date of “September 2012” listed on
Researchgate exhibit, reproduced in part below, is not identified as a
publication date, and that neither the website page, nor Petitioners, provide
any explanation or context as to what that date represents. Id. at 12–13.
Ex. 1011, 1. The excerpt, above, from Researchgate exhibit, identifies
certain information relevant to “Conference Paper,” including the date
“September 2012.”
Second, Patent Owner points out that Li itself indicates in its legend a
copyright date of simply, “2012 SEG,” (Society of Exploration
Geophysicists), in conjunction with “SEG Las Vegas 2012 Annual
Meeting.”
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Ex. 1005, 1. Further, Patent Owner argues that the copy of Li provided by
Petitioners includes a downloaded date of “2/25/13” which places Li well
within the § 102(b), 1-year grace period. Prelim. Resp. 13–14. Reproduced
below is an image of the downloaded date, and relevant text, from Li.
Ex. 1005, 1. The image, above, from Li, indicates a download date of
2/25/13 and describes the redistribution of the document “subject to SEG
license or copyright.” Id.
Third, Patent Owner argues “that [Li] was disclosed as part of the
‘SEG Las Vegas 2012 Annual Meeting.’” Prelim. Resp. 14 (citing Ex. 1005,
1). Relying on its declarant, Dr. Fred Aminzadeh, Patent Owner asserts that
“historically, papers presented at SEG conferences were only made available
at and after the conference.” Id. (citing Ex. 2007 ¶ 7). Based in part on
Dr. Aminzadeh’s testimony, Patent Owner argues that Petitioners have not
presented sufficient evidence to show that Li was publically available prior
to the SEG Annual Conference.
Fourth, and following from its third argument, Patent Owner argues
that because the SEG 2012 Annual Meeting occurred November 4–9, 2012,
which is within the 1-year grace period, and based on Dr. Aminzadeh’s
testimony, “Li was likely first made available at the SEG conference itself,
which was within the one-year grace period, thereby eliminating it as prior
art to the ’193 Patent.” Id. at 15.
Addressing Petitioners’ evidence that Li was cited in the related EPO
prosecution to the ’193 patent, Patent Owner argues that “Li does not qualify
as prior art under U.S. patent laws simply because it was referred to in
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conjunction with prosecution of a foreign patent application.” Prelim. Resp.
15. Patent Owner argues that consideration of Li in the EPO does not show
that Li qualifies as prior art because the EPO applies the principle of
“absolute novelty,” which includes everything made available to the public
prior to the date of filing or priority date. Id. at 17 (citing European Patent
Convention Article 54(2)).
Analysis
The ’193 patent claims priority to U.S. Provisional Patent Application
61/898,960, filed November 1, 2013. Ex. 1001, [60] (Related U.S.
Application Data). We also keep in mind § 102(a)(1)-(b)(1)(A), and the 1-
year grace period back to November 1, 2012, and consider whether
Petitioners’ have made a sufficient showing that that Li qualifies as a printed
publication prior to that date for purposes of institution of inter partes
review
It is apparent that Researchgate exhibit indicates a date of “September
2012.” Ex. 1011, 1. There is, however, nothing further on Researchgate
exhibit that explains what this date represents, for instance whether
September 2012 was the date of submission, acceptance for publication, or
publication, or when the full text became available via the “Request full-
text” link. Id. Indeed, Petitioners do not even attempt to establish, for
example in the form of testimony of a witness familiar with the exhibit, the
authenticity of Researchgate exhibit or that it falls within an exception to
Federal Rule of Evidence 901. Pet. 11. The single sentence provided in the
Petition provides no explanation or persuasive corroborating evidence
explaining how, or why, the date shown on Researchgate exhibit qualifies Li
as a printed publication as a result of its public accessibility to interested
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persons of ordinary skill in the art. Id. Petitioners conclusion that, “Li []
was published by September 2012 according to Researchgate,” is not
supported by the evidence presented. Id.
The Li reference appears on its face to be a conference or research
paper that was intended, at some point, for dissemination. See Ex. 1005, 1.
The legend “© 2012 SEG” and “SEG Las Vegas Annual 2012 Meeting,” at
the bottom of each page of the paper, could arguably be evidence of public
availability. In Li, however, the legend information does not provide a
specific day, or even month, the paper was published or made publically
available, and therefore does not persuasively corroborate the “September
2012” publication date claimed by Petitioners.
Moreover, the downloaded date of “02/25/13,” appearing on each
page of the Li reference, indicates that the paper was downloaded within the
1-year grace period. Ex. 1005, 1. And rather than evidence public
accessibility, the downloaded date appears with an express limitation of the
use and dissemination of Li, stating “Redistribution subject to SEG license
or copyright.” Id. Further, the Li reference does not bear, and Petitioners do
not point to, any other indicia such as express publication dates, libraries,
journal numbers, or International Standard Book Number (“ISBN”) codes,
or Library of Congress Control Number (“LCCN”) that the Board previously
has held are indicia of public availability. See REG Synthetic Fuels, LLC v.
Neste Oil, OYJ, IPR2018-01374, Paper 11 at 6 (PTAB Feb. 19, 2019).
Petitioners’ pointing to a vague date listed on a website page is
insufficient to meet Petitioners’ burden to show that Li was publicly
accessible by a particular date. As discussed above, the September 2012
date, like the legend copyright notice, sheds virtually no light on whether the
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document was publicly accessible prior to November 1, 2012. Additional
evidence thus is necessary to support a showing of public accessibility. See,
e.g., Ford Motor Co. v. Cruise Control Techs. LLC, Case IPR2014-00291,
slip op. at 9–10 (PTAB June 29, 2015) (Paper 44) (discussing evidence of
public accessibility that supported a finding that a reference was a prior art
printed publication).
In addition, Patent Owner presents compelling evidence that Li was
potentially first disseminated at the SEG Las Vegas 2012 Annual Meeting,
November, 4–9th, 2012. Prelim. Resp. 15 (citing
https://seg.org/Portals/0/SEG/Events/Annual%20Meeting/LV12_AMA.pdf,
last visited June 21, 2019). November 4–9, 2012, is within the § 102(b) one-
year grace period. Patent Owner offers the testimony of Dr. Fred
Aminzadeh, an SEG member for over forty years, and who served as SEG
President in 2007-2008, in support of its arguments and evidence that the
“September 2012” date is not a publication date or indication of public
availability. Ex. 2007 ¶ 3.
Dr. Aminzadeh testifies persuasively that he “presented or was a co-
author of papers at the SEG conference in at least the following years: 2004,
2005, 2006, 2008, 2011, 2012, 2013, 2014, and 2016.” Id. ¶ 4. Dr.
Aminzadeh testifies in detail as to the process used by SEG for presentation
of papers at its annual meetings, explaining that “[a]uthors submit papers to
the SEG several months before the SEG conference. The papers are kept
confidential by the SEG at that time.” Id. ¶ 6. Dr. Aminzadeh explains
further that
in the 2010-2013 time frame, papers accepted for presentation at
the SEG annual conference were first made available to the
conference attendees at the conference itself. This is usually done
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by including the papers to be presented at the conference in one
or more volumes of the “Annual Meeting Extended Abstracts.”
The extended abstracts are usually available beginning on the
start of the annual conference.
Id. ¶ 7. We give weight to Dr. Aminzadeh’s testimony because it articulates
a reasonable and unrebutted explanation for the September 2012 date listed
by Researchgate exhibit.10 Dr. Aminzadeh’s testimony also persuasively
explains how and why the dissemination and first public availability of Li
would have most likely not occurred prior to the SEG 2012 Annual Meeting
from November 4-9, 2012.
On the record in this case, Researchgate exhibit in light of
Dr. Aminzadeh’s testimony suggests that if Li was distributed at all in
September 2012, it was only in a restricted and limited fashion to persons
who were determining what papers would be distributed at the SEG Annual
Meeting. See Ex. 2007 ¶¶ 6–7. Accordingly, we look to whether Petitioners
have provided other evidence or argument to support its contention that Li
was publicly accessible.
Petitioners point out that the Applicant’s replacement specification in
a related EPO application to the ’193 patent describes Li as, “SEG Technical
Program Expanded Abstracts 2012, 1 September 2012 (2012-09-01).”
Pet. 11, (citing Ex. 1007, 6). We note also that Li was considered by the
10 We note that Petitioners sought authorization to file a reply brief to Patent
Owner’s Preliminary Response, which we authorized. Papers 11, 12. In the
telephone conference of July 2, 2019 which the Board conducted with the
parties to discuss Petitioners’ request for the reply brief, Petitioners
expressed their desire to respond to an unforeseen issue of service-of-
process under 35 U.S.C. § 315(b), and did not raise the issue, or request to
respond to, Patent Owner’s arguments and evidence with respect to the
public availability of Li. See Paper 11.
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EPO examiner as “particularly relevant if combined with another document
in the same category.” Ex. 1006, 7. Although the “1 September 2012” date
may be indicative of something, without any further information or
explanation, and similar to Researchgate exhibit, the “1 September 2012”
date provides no explanation as to how and when Li was disseminated and
available such that interested and ordinarily skilled persons could locate it
exercising reasonable diligence. See SRI Int’l., 511 F.3d 1197 (Fed. Cir.
2008) (In SRI the Federal Circuit determined that “the Live Traffic paper
was still subject to pre-publication review.”). In addition, as Patent Owner
argues persuasively, the disclosure by applicant and the examiner’s
consideration of Li in the EPO prosecution is not compelling evidence of a
specific publication date because of the EPO’s absolute novelty provisions,
specifically European Patent Convention Article 54 (2), that does not contain
a 1-year grace period. See Prelim. Resp. 17, and see European Patent
Convention, 16th edition/June 2016.
Collectively, Petitioner’s evidence amounts to little more than a bare
allegation that Li was published in September 2012. See Pet. 11. Petitioners
bear the burden to show a reasonable likelihood that the reference is a
printed publication. See 35 U.S.C. § 314(a). In the face of Dr. Aminzadeh’s
persuasive testimony we have insufficient evidence that Li was published,
disseminated, or otherwise made available to interested persons of ordinary
skill in the art, exercising reasonable diligence, prior to the critical date, such
that Li qualifies as a prior art, printed publication. Consequently, we
conclude that Petitioners have not met their burden of showing a reasonable
likelihood that Li (Ex. 1005) is a printed publication as contemplated by 35
U.S.C. §§ 102 and 311(b) or 37 C.F.R. § 42.104(b)(2).
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F. Asserted Grounds of Unpatentability
Because Petitioners have not presented sufficient persuasive
information in the Petition and accompanying evidence to show a reasonable
likelihood that Li is a prior art printed publication, Petitioners fail to
demonstrate a reasonable likelihood of prevailing on the ground that any of
the subject matter of claims 1–6 of the ’193 patent would have been obvious
over Li, Donoho, Hennenfent I, and Hennenfent II, or Li, Donoho,
Hennenfent I, and Hennenfent II, in combination with either Essays and
Surveys or International Encyclopedia.
II. 	CONCLUSION
The only grounds of unpatentability asserted by Petitioners against the
’193 patent in the Petition rely upon Li; and, as discussed above, Petitioners
have not presented sufficient persuasive information in the Petition and
accompanying evidence to show a reasonable likelihood that Li is a prior art
printed publication. Accordingly, for the foregoing reasons, the information
presented in the Petition and accompanying evidence does not establish a
reasonable likelihood that Petitioners would prevail in showing the
unpatentability of any challenged claim of the ’193 patent.
III. 	ORDER
For the reasons given, it is
ORDERED that the Petition is denied and no inter partes review is
instituted.
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PETITIONERS:
William P. Jensen
James E. Hudson
CRAIN, CATON & JAMES
wjensen@craincaton.com
jhudson@craincaton.com
PATENT OWNER:
Dion M. Bregman
Rick L. Rambo
MORGAN, LEWIS & BOCKIUS LLP
dion.bregman@morganlewis.com
rick.rambo@morganlewis.com
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