DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Responsive to the communication dated 04/20/2026
Claims 1, 4, 8, 12, 14, 16, 21, 23, 25, and 32-36 are presented for examination
Finality
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Response to Arguments - 112
Applicant’s arguments, see Page 9-10, filed 04/20/2026, with respect to the rejection of claims 21-23 under 112 have been fully considered and are persuasive. The rejection of claims 21-23 under 112 has been withdrawn.
Response to Arguments - 101
Applicant's arguments filed 04/20/2026 have been fully considered but they are not persuasive.
Applicant argues that the amendments to the claims successfully integrate the claims into a practical application/ provide significantly more.
Examiner responds by explaining that, although the new amendment adds some additional detail as to what is modified when making modifications, it is still not clear how this translates into any change to the actual oil recovery technique that would show integration into a practical application/ provide significantly more. The system calculates the trapping number and modifies a relative permeability curve and a residual oil saturation using a capillary desaturation curve of the model, but then the actual oil recovery technique does not use any of these, merely accounting for an estimated change in aqueous viscosity.
It should be noted that a positively recited limitation that shows use of the modified model to actually perform an enhanced oil recovery technique that is improved as a direct result of the modified model would likely integrate the claims into a practical application. As noted above, however, such a limitation is not present in the claims.
Further, the alleged increase in model accuracy is merely the result of performing the math calculation to determine the trapping number and, based on this calculation, modifying the data that is modeled. There is no apparent improvement or modification to the simulation mechanism itself in the claims, nor any specificity as to how this modification is actually carried out. This modification is akin to the modification described in MPEP 2106.05(f) and rejected under a similar rationale. (MPEP 2106.05(f)(1) “By way of example, in Intellectual Ventures I v. Capital One Fin. Corp., 850 F.3d 1332, 121 USPQ2d 1940 (Fed. Cir. 2017), the steps in the claims described "the creation of a dynamic document based upon ‘management record types’ and ‘primary record types.’" 850 F.3d at 1339-40; 121 USPQ2d at 1945-46. The claims were found to be directed to the abstract idea of "collecting, displaying, and manipulating data." 850 F.3d at 1340; 121 USPQ2d at 1946. In addition to the abstract idea, the claims also recited the additional element of modifying the underlying XML document in response to modifications made in the dynamic document. 850 F.3d at 1342; 121 USPQ2d at 1947-48. Although the claims purported to modify the underlying XML document in response to modifications made in the dynamic document, nothing in the claims indicated what specific steps were undertaken other than merely using the abstract idea in the context of XML documents. The court thus held the claims ineligible, because the additional limitations provided only a result-oriented solution and lacked details as to how the computer performed the modifications, which was equivalent to the words "apply it". 850 F.3d at 1341-42; 121 USPQ2d at 1947-48 (citing Electric Power Group., 830 F.3d at 1356, 1356, USPQ2d at 1743-44 (cautioning against claims "so result focused, so functional, as to effectively cover any solution to an identified problem"))”)
Claim Objections
Claim 4 objected to because of the following informalities:
Claim 4 recites “The method of claim 2, …” however claim 2 has been cancelled. It is clear that claim 4 is meant to depend on claim 1 rather than claim 2, and therefore, to prevent any potential issues with claim dependency, it is recommended to instead amend claim 4 to read “The method of claim 1, …”
Appropriate correction is required.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 4, 8, 12, 14, 16, 21, 23, 25, and 32-36 are rejected under 35 U.S.C. 101 because they are directed to an abstract idea without significantly more.
Claim 1 (Statutory Category – Process)
Step 2A – Prong 1: Judicial Exception Recited?
Yes, the claim recites a mental process, specifically:
A method of determining expected oil recovery from a carbonate reservoir induced by accomplishing an enhanced oil recovery technique that comprises injection of one or more fluids into the reservoir, the method comprising: providing input parameters, to a processor, representative of a carbonate reservoir substrate sample; generating a model of a carbonate reservoir in three dimensions and includes multiphase flow within the carbonate reservoir comprising input parameters of the carbonate reservoir substrate sample from the processor;
A person could perform this prediction process by first observing the sample and making certain judgments about the reservoir it is representative of. For example, if the sample was nearly identical to previous samples that indicated a rich reservoir, a person could reasonably predict that the reservoir this sample is representative of would have similar properties and be able to produce similarly. A person could then generate the model by drawing an image of it with a pencil and paper such that it conforms to the estimated properties related to the sample. This drawing could include indications of three-dimensional measurements and flow characteristics within the reservoir.
Performing this process in a true 3D computer environment amounts to no more than mere instructions to apply.
Should it be found that providing the input parameters from the sample is not part of the mental process, it is also an example of mere data gathering.
Should it be found that modelling the reservoir is not a mental process, it is also an example of mere data gathering and mere instructions to apply.
The use of generic computer components such as processors to accomplish this amounts to no more than mere instructions to apply.
inducing an injection of a first fluid into the model of the carbonate reservoir; … modifying a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the carbonate reservoir based on the trapping number the input parameters of the carbonate reservoir substrate sample: … account for an estimated change in aqueous viscosity induced by injection of the first fluid into real world carbonate reservoir.
A person could mentally model the operation of injecting a fluid into a reservoir by drawing images of such an injection procedure with a pencil and paper, drawing a different image for each step of the process. A person could then predict how much oil is recovered by this technique by making a guess as to how much oil would be displaced by the procedure. For example if previous usages of the technique on similar substrates recovered 100 gallons of oil, they could reasonably predict that a similar amount of oil would be recovered this time. The person could modify the model by altering the drawings. For example, if the estimated properties of the drawn model do not reflect the insight gained about those properties from calculating the trapping number, the person could redraw the model to better reflect these conditions. This redrawing could be reflective of the change in relative permeability and residual oil saturation in the reservoir. These drawings could also be accompanied by graphs and numbers representative of the various features of the reservoir. The person could also estimate the change in aqueous viscosity caused by injection of a material, for example a person could estimate that adding a gallon of partially dissolved cornstarch mixture to a small shot glass of water would result in a solution that is thicker and more viscous than water on its own. Finally, the full recovery could be modelled by once again drawing the steps of the full process, this time drawing in such a way that the imagery reflects the more accurate information gained from calculating the trapping number.
Note that actually calculating the trapping number is a math concept, as analyzed below.
Performing this process in a true 3D computer environment amounts to no more than mere instructions to apply.
Note that actually accomplishing the enhanced oil recovery is an example of insignificant post-solution activity.
Should it be found that modelling the reservoir is not a mental process, it is also an example of mere data gathering and mere instructions to apply.
The use of generic computer components such as processors to accomplish this amounts to no more than mere instructions to apply.
The claim also recites a mathematic process, specifically:
determining, after a first fluid injection, a trapping number (NT) for the carbonate reservoir that accounts for the first fluid within the carbonate reservoir, wherein the trapping number is defined as: ere v is a Darcy velocity of a core sample comprising the same or-- similar material as the carbonate reservoir, p is an aqueous phase viscosity, and o., is an interfacial tension between oil and water
Determining a number through a mathematic equation amounts to no more than a mathematic process.
Step 2A – Prong 2: Integrated into a Practical Solution?
Insignificant Extra-Solution Activity (MPEP 2106.05(g)) has found mere data gathering and post solution activity to be insignificant extra-solution activity.
Data gathering:
providing input parameters, to a processor, representative of a carbonate reservoir substrate sample;
Obtaining input parameters from the carbonate reservoir at such a high level of generality amounts to no more than mere data gathering.
generating a model of a carbonate reservoir in three dimensions and includes multiphase flow within the carbonate reservoir comprising input parameters of the carbonate reservoir substrate sample from the processor; inducing an injection of a first fluid into the model of the carbonate reservoir; …modifying a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the carbonate reservoir based on the trapping number and the input parameters of the carbonate reservoir substrate sample;
Without any specifics as to how this model is generated nor how it operates, the generation of the model and induction of an injection within that model amounts to no more than merely gathering data representative of that model. Similarly, modifying the model without any specificity as to how this modification is carried out amounts to no more than gathering data representative of an updated version of the model.
Should it be found that this is not an example of mere data gathering, it is also an example of mere instructions to apply.
Post-Solution Activity:
and accomplishing an enhanced oil recovery technique so as to account for an estimated change in aqueous viscosity induced by injection of the first fluid into real world carbonate reservoir.
Performing an oil recovery operation after setting up such an operation through abstract means, this abstract process being what the claims are directed to, amounts to no more than insignificant post-solution activity.
Mere Instructions to Apply (MPEP 2106.05(f)) has found that merely applying a judicial exception such as an abstract idea, as by performing it on a computer, does not integrate the claim into a practical solution.
Mere Instructions to Apply:
A method of determining expected oil recovery from a carbonate reservoir induced by accomplishing an enhanced oil recovery technique that comprises injection of one or more fluids into the reservoir, the method comprising: … ; generating a model of a carbonate reservoir in three dimensions and includes multiphase flow within the carbonate reservoir comprising input parameters of the carbonate reservoir substrate sample from the processor; inducing an injection of a first fluid into the model of the carbonate reservoir; … modifying a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the carbonate reservoir based on the trapping number and the input parameters of the carbonate reservoir substrate sample;
Applying a computer to perform a generic simulation at a high level of generality is simply the act of instructing a computer to perform generic functions to perform that simulation, which is merely an instruction to apply a computer to the judicial exception. The claim only recites the idea of a solution or outcome, i.e. that the reservoir and associated operations are “modelled” and “modified” and simulated fluids are “injected” without reciting how this modelling, modification, or simulated injection is actually accomplished. Further, the computer elements claimed are cited as merely generic tools to perform the operations; for additional clarity see ([Par 47] “. In various embodiments, the model can be or include a 3D multiphase-flow, transport, and chemical-flooding simulator and/or a carbonate core model.” [Par 44] “For example, computer system 100 may represent components of interconnected computer systems that are capable of communicating information between one another. In general, computer system 100 may include any appropriate combination of hardware and/or software suitable to provide the described functionality.”)
The courts have found that such mere instructions to apply are not indicative of integration into a practical application nor recitation of significantly more than the judicial exception (MPEP 2106.05(f) “Another consideration when determining whether a claim integrates a judicial exception into a practical application in Step 2A Prong Two or recites significantly more than a judicial exception in Step 2B is whether the additional elements amount to more than a recitation of the words "apply it" (or an equivalent) or are more than mere instructions to implement an abstract idea or other exception on a computer. As explained by the Supreme Court, in order to make a claim directed to a judicial exception patent-eligible, the additional element or combination of elements must do "‘more than simply stat[e] the [judicial exception] while adding the words ‘apply it’". Alice Corp. v. CLS Bank, 573 U.S. 208, 221, 110 USPQ2d 1976, 1982-83 (2014) (quoting Mayo Collaborative Servs. V. Prometheus Labs., Inc., 566 U.S. 66, 72, 101 USPQ2d 1961, 1965). Thus, for example, claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible. Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983”)
Moreover, Mere Instructions To Apply An Exception (MPEP 2106.05(f)) has found that simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more. In light of this, the additional generic computer component elements of “a processor, a model of a carbonate reservoir in three dimensions and includes multiphase flow within the carbonate reservoir” are not sufficient to integrate a judicial exception into a practical application nor provide evidence of an inventive concept.
Step 2B: Claim provides an Inventive Concept?
No, as discussed with respect to Step 2A, the additional limitations are insignificant extra-solution activity or mere instructions to apply. and do not impose any meaningful limits on practicing the abstract idea and therefore the claim does not provide an inventive concept in Step 2B.
Insignificant Extra-Solution Activity (MPEP 2106.05(g)) has found mere data gathering and post solution activity to be insignificant extra-solution activity.
Data gathering:
providing input parameters, to a processor, representative of a carbonate reservoir substrate sample;
Obtaining input parameters from the carbonate reservoir at such a high level of generality amounts to no more than mere data gathering.
A claim element that amounts to merely gathering data is not indicative of integration into a
practical solution nor evidence that the claim provides an inventive concept or significantly more, as exemplified by ((MPEP 2106.05)(g)(Mere Data Gathering) i. Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); iv. Obtaining information about transactions using the Internet to verify credit card transactions, CyberSource v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011);
generating a model of a carbonate reservoir in three dimensions and includes multiphase flow within the carbonate reservoir comprising input parameters of the carbonate reservoir substrate sample from the processor; inducing an injection of a first fluid into the model of the carbonate reservoir; …modifying a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the carbonate reservoir based on the trapping number and the input parameters of the carbonate reservoir substrate sample;
Without any specifics as to how this model is generated nor how it operates, the generation of the model and induction of an injection within that model amounts to no more than merely gathering data representative of that model. Similarly, modifying the model amounts to no more than gathering data representative of an updated version of the model.
Should it be found that this is not an example of mere data gathering, it is also an example of mere instructions to apply.
A claim element that amounts to merely gathering data is not indicative of integration into a
practical solution nor evidence that the claim provides an inventive concept or significantly more, as exemplified by ((MPEP 2106.05)(g)(Mere Data Gathering) i. Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); iv. Obtaining information about transactions using the Internet to verify credit card transactions, CyberSource v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011);
Post-Solution Activity:
and accomplishing an enhanced oil recovery technique so as to account for an estimated change in aqueous viscosity induced by injection of the first fluid into real world carbonate reservoir.
Performing an oil recovery operation after setting up such an operation through abstract means, this abstract process being what the claims are directed to, amounts to no more than insignificant post-solution activity.
This element merely acts on the results of the previous abstract steps. A claim element that merely acts on a series of previous abstract steps is not indicative of integration into a practical solution nor evidence that the claim provides an inventive concept, as exemplified by ((MPEP 2106.05)(g)(Insignificant application) i. Cutting hair after first determining the hair style, In re Brown, 645 Fed. App'x 1014, 1016-1017 (Fed. Cir. 2016) and ii. Printing or downloading generated menus, Ameranth, 842 F.3d at 1241-42, 120 USPQ2d at 1854-55.)
Mere Instructions to Apply (MPEP 2106.05(f)) has found that merely applying a judicial exception such as an abstract idea, as by performing it on a computer, does not integrate the claim into a practical solution.
Mere Instructions to Apply:
A method of determining expected oil recovery from a carbonate reservoir induced by accomplishing an enhanced oil recovery technique that comprises injection of one or more fluids into the reservoir, the method comprising: … ; generating a model of a carbonate reservoir in three dimensions and includes multiphase flow within the carbonate reservoir comprising input parameters of the carbonate reservoir substrate sample from the processor; inducing an injection of a first fluid into the model of the carbonate reservoir; … modifying a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the carbonate reservoir based on the trapping number and the input parameters of the carbonate reservoir substrate sample;
Applying a computer to perform a generic simulation at a high level of generality is simply the act of instructing a computer to perform generic functions to perform that simulation, which is merely an instruction to apply a computer to the judicial exception. The claim only recites the idea of a solution or outcome, i.e. that the reservoir and associated operations are “modelled” and “modified” and simulated fluids are “injected” without reciting how this modelling, modification, or simulated injection is actually accomplished. Further, the computer elements claimed are cited as merely generic tools to perform the operations; for additional clarity see ([Par 47] “. In various embodiments, the model can be or include a 3D multiphase-flow, transport, and chemical-flooding simulator and/or a carbonate core model.” [Par 44] “For example, computer system 100 may represent components of interconnected computer systems that are capable of communicating information between one another. In general, computer system 100 may include any appropriate combination of hardware and/or software suitable to provide the described functionality.”)
The courts have found that such mere instructions to apply are not indicative of integration into a practical application nor recitation of significantly more than the judicial exception (MPEP 2106.05(f) “Another consideration when determining whether a claim integrates a judicial exception into a practical application in Step 2A Prong Two or recites significantly more than a judicial exception in Step 2B is whether the additional elements amount to more than a recitation of the words "apply it" (or an equivalent) or are more than mere instructions to implement an abstract idea or other exception on a computer. As explained by the Supreme Court, in order to make a claim directed to a judicial exception patent-eligible, the additional element or combination of elements must do "‘more than simply stat[e] the [judicial exception] while adding the words ‘apply it’". Alice Corp. v. CLS Bank, 573 U.S. 208, 221, 110 USPQ2d 1976, 1982-83 (2014) (quoting Mayo Collaborative Servs. V. Prometheus Labs., Inc., 566 U.S. 66, 72, 101 USPQ2d 1961, 1965). Thus, for example, claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible. Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983”)
Moreover, Mere Instructions To Apply An Exception (MPEP 2106.05(f)) has found that simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more. In light of this, the additional generic computer component elements of “a processor, a model of a carbonate reservoir in three dimensions and includes multiphase flow within the carbonate reservoir” are not sufficient to integrate a judicial exception into a practical application nor provide evidence of an inventive concept.
The additional elements have been considered both individually and as an ordered combination in the consideration of whether they constitute significantly more, and have been determined not to constitute such.
The claim is ineligible.
Claim 4 recites “further comprising an injection of a second fluid into the model of the carbonate reservoir, optionally wherein the first fluid is injected into the model of the carbonate reservoir after the second fluid is injected into the model of the carbonate reservoir in the enhanced oil recovery technique, or the first fluid comprises a polymer and the second fluid comprises water.”
Modelling the injection of a second fluid into the reservoir could be modelled mentally in the same manner as the first model, i.e. a person could mentally model the operation of injecting a fluid into a reservoir by drawing images of such an injection procedure with a pencil and paper, drawing a different image for each step of the process. Injecting a second fluid would amount to merely drawing an additional step depicting the injection of an additional fluid.
Claim 8 (Statutory Category – Process)
Step 2A – Prong 1: Judicial Exception Recited?
Yes, the claim recites a mental process, specifically:
MPEP 2106.04(a)(2)(Ill): “Accordingly, the "mental processes" abstract idea grouping is defined as concepts performed in the human mind, and examples of mental processes include observations, evaluations, Judgments, and opinions.”
Further, the MPEP recites “The courts do not distinguish between mental processes that are performed entirely in the human mind and mental processes that require a human to use a physical aid (e.g., pen and paper or a slide rule) to perform the claim limitation.”
A method comprising: receiving, by a processor, input parameters representative of a hydrocarbon reservoir substrate sample; generating a model of a hydrocarbon reservoir in three dimensions and multiphase flow within the hydrocarbon reservoir comprising input parameters of the hydrocarbon reservoir substrate sample from the processor;
A person could perform this prediction process by first observing the sample and making certain judgments about the reservoir it is representative of. For example, if the sample was nearly identical to previous samples that indicated a rich reservoir, a person could reasonably predict that the reservoir this sample is representative of would have similar properties and be able to produce similarly. A person could then generate the model by drawing an image of it with a pencil and paper such that it conforms to the estimated properties related to the sample. The parameters that define this model could also be written out, for example in a table. This drawing could include indications of three-dimensional measurements and flow characteristics within the reservoir.
Performing this process in a true 3D computer environment amounts to no more than mere instructions to apply.
Should it be found that providing the input parameters from the sample is not part of the mental process, it is also an example of mere data gathering.
Should it be found that modelling the reservoir is not a mental process, it is also an example of mere data gathering and mere instructions to apply.
The use of generic computer components such as processors to accomplish this amounts to no more than mere instructions to apply.
determining a critical trapping number for the model of the hydrocarbon reservoir based in part on the hydrocarbon reservoir substrate sample;
It is clear from the specification that determining the critical trapping number is the process of either determining the type of rock, for example sandstone has a critical trapping number of 10-6 while carbonates have a critical trapping number of 10-8 or consulting a CDC chart. If the material method is used, this process consists of identifying the rock type. This is something professionals like geologists can do based on simple observation. The rock type corresponds to a critical trapping number specific to that type. If the CDC chart method is used, this process merely consists of observing the chart and, based on measurements of the material and the curve depicted in the chart, judge what the critical trapping number should be. ([Par 57] “For example, a critical trapping number can be determined based at least in part on a composition of a substrate of the reservoir. In various embodiments, the a critical trapping number can be determined for a sandstone reservoir and/or for a carbonate reservoir. The critical trapping number can be determined based on the properties of the reservoir and/or can be determined based on the capillary desaturation curve (CDC). For example, the critical trapping number of a sandstone reservoir can be determined to be about 10-6 and the critical trapping number for carbonates can be lower than the critical trapping number of sandstone (e.g., about 10-g”)
a first fluid injection … comparing, by the processor, the trapping number to the critical trapping number; modifying, based in part on the determination that the critical trapping number has been exceeded, a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the hydrocarbon reservoir … account for an estimated change in aqueous viscosity that would be induced by injection of the first fluid into a real world hydrocarbon reservoir.
A person could mentally model the operation of injecting a fluid into a reservoir by drawing images of such an injection procedure with a pencil and paper, drawing a different image for each step of the process. A person could then predict how much oil is recovered by this technique by making a guess as to how much oil would be displaced by the procedure. For example if previous usages of the technique on similar substrates recovered 100 gallons of oil, they could reasonably predict that a similar amount of oil would be recovered this time.
Determining whether a number exceeds the value of another number is a mental process equivalent to observing both numbers and judging whether one if bigger than the other. This type of basic numeric comparison is commonly taught to school children in elementary school.
Changing parameters or attributes of the model based on this determination is a mental process that is equivalent to merely changing the values in the written parameter table, for example erasing the value “carbonate” for the rock type parameter and writing “sandstone” in its place, or adjusting values relating to permeability. The drawing based on these parameters could then be updated to reflect these conditions. The person could also estimate the change in aqueous viscosity caused by injection of a material, for example a person could estimate that adding a gallon of partially dissolved cornstarch mixture to a small shot glass of water would result in a solution that is thicker and more viscous than water on its own. Finally, the full recovery could be modelled by once again drawing the steps of the full process, this time drawing in such a way that the imagery reflects the more accurate information gained from calculating the trapping number and making comparisons with the critical trapping number.
Note that actually calculating the trapping number is a math concept, as analyzed below.
Note that actually accomplishing the enhanced oil recovery is an example of insignificant post-solution activity.
Should it be found that modelling the reservoir is not a mental process, it is also an example of mere data gathering and mere instructions to apply.
The use of generic computer components such as processors to accomplish this amounts to no more than mere instructions to apply.
Further, the claim also includes a mathematic concept, specifically:
determining, after a first fluid injection, a trapping number (NT) for the hydrocarbon reservoir that accounts for the first fluid within the hydrocarbon reservoir, wherein the trapping number is defined as: ° where v is a Darcy velocity of a core sample comprising the same orUow similar material as the hydrocarbon reservoir, p is an aqueous phase viscosity, and o.- is an interfacial tension between oil and water;
Determining a number through a mathematic equation amounts to no more than a mathematic process.
Step 2A – Prong 2: Integrated into a Practical Solution?
Insignificant Extra-Solution Activity (MPEP 2106.05(g)) has found mere data gathering and post solution activity to be insignificant extra-solution activity.
Data gathering:
receiving, by a processor, input parameters representative of a hydrocarbon reservoir substrate sample;
Obtaining input parameters from the reservoir at such a high level of generality amounts to no more than mere data gathering.
generating a model of a hydrocarbon reservoir in three dimensions and multiphase flow within the hydrocarbon reservoir comprising input parameters of the hydrocarbon reservoir substrate sample from the processor;… a first fluid injection … modifying, based in part on the determination that the critical trapping number has been exceeded, a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the hydrocarbon reservoir;
Without any specifics as to how this model is generated nor how it operates, the generation of the model and induction of an injection within that model amounts to no more than merely gathering data representative of that model. Similarly, modifying the model without any specificity as to how this modification is carried out amounts to no more than gathering data representative of an updated version of the model.
Should it be found that this is not an example of mere data gathering, it is also an example of mere instructions to apply.
Post-Solution Activity:
accomplishing an enhanced oil recovery technique so as to account for an estimated change in aqueous viscosity induced by injection of the first fluid into a real world hydrocarbon reservoir.
Performing an oil recovery operation after setting up such an operation through abstract means, this abstract process being what the claims are directed to, amounts to no more than insignificant post-solution activity.
Mere Instructions to Apply (MPEP 2106.05(f)) has found that merely applying a judicial exception such as an abstract idea, as by performing it on a computer, does not integrate the claim into a practical solution.
Mere Instructions to Apply:
A method comprising: generating a model of a hydrocarbon reservoir comprising input parameters of the hydrocarbon reservoir substrate sample from the processor; … a first fluid injection … modifying, based in part on the determination that the critical trapping number has been exceeded, a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the hydrocarbon reservoir;
Applying a computer to perform a generic simulation at a high level of generality is simply the act of instructing a computer to perform generic functions to perform that simulation, which is merely an instruction to apply a computer to the judicial exception. The claim only recites the idea of a solution or outcome, i.e. that the reservoir and operations are “simulated” without reciting how this simulation is actually accomplished. Further, the computer elements claimed are cited as merely generic tools to perform the operations; for additional clarity see ([Par 47] “. In various embodiments, the model can be or include a 3D multiphase-flow, transport, and chemical-flooding simulator and/or a carbonate core model.” [Par 44] “For example, computer system 100 may represent components of interconnected computer systems that are capable of communicating information between one another. In general, computer system 100 may include any appropriate combination of hardware and/or software suitable to provide the described functionality.”)
The courts have found that such mere instructions to apply are not indicative of integration into a practical application nor recitation of significantly more than the judicial exception (MPEP 2106.05(f) “Another consideration when determining whether a claim integrates a judicial exception into a practical application in Step 2A Prong Two or recites significantly more than a judicial exception in Step 2B is whether the additional elements amount to more than a recitation of the words "apply it" (or an equivalent) or are more than mere instructions to implement an abstract idea or other exception on a computer. As explained by the Supreme Court, in order to make a claim directed to a judicial exception patent-eligible, the additional element or combination of elements must do "‘more than simply stat[e] the [judicial exception] while adding the words ‘apply it’". Alice Corp. v. CLS Bank, 573 U.S. 208, 221, 110 USPQ2d 1976, 1982-83 (2014) (quoting Mayo Collaborative Servs. V. Prometheus Labs., Inc., 566 U.S. 66, 72, 101 USPQ2d 1961, 1965). Thus, for example, claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible. Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983”)
Moreover, Mere Instructions To Apply An Exception (MPEP 2106.05(f)) has found that simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more. In light of this, the additional generic computer component elements of “a processor, a model of a hydrocarbon reservoir in three dimensions and multiphase flow within the hydrocarbon reservoir” are not sufficient to integrate a judicial exception into a practical application nor provide evidence of an inventive concept.
Step 2B: Claim provides an Inventive Concept?
No, as discussed with respect to Step 2A, the additional limitations are insignificant extra-solution activity or mere instructions to apply. and do not impose any meaningful limits on practicing the abstract idea and therefore the claim does not provide an inventive concept in Step 2B.
Insignificant Extra-Solution Activity (MPEP 2106.05(g)) has found mere data gathering and post solution activity to be insignificant extra-solution activity.
Data gathering:
receiving, by a processor, input parameters representative of a hydrocarbon reservoir substrate sample;
Obtaining input parameters from the reservoir at such a high level of generality amounts to no more than mere data gathering.
A claim element that amounts to merely gathering data is not indicative of integration into a
practical solution nor evidence that the claim provides an inventive concept or significantly more, as exemplified by ((MPEP 2106.05)(g)(Mere Data Gathering) i. Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); iv. Obtaining information about transactions using the Internet to verify credit card transactions, CyberSource v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011);
generating a model of a hydrocarbon reservoir in three dimensions and multiphase flow within the hydrocarbon reservoir comprising input parameters of the hydrocarbon reservoir substrate sample from the processor;… a first fluid injection … modifying, based in part on the determination that the critical trapping number has been exceeded, a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the hydrocarbon reservoir;
Without any specifics as to how this model is generated nor how it operates, the generation of the model and induction of an injection within that model amounts to no more than merely gathering data representative of that model. Similarly, modifying the model without any specificity as to how this modification is carried out amounts to no more than gathering data representative of an updated version of the model.
Should it be found that this is not an example of mere data gathering, it is also an example of mere instructions to apply.
A claim element that amounts to merely gathering data is not indicative of integration into a
practical solution nor evidence that the claim provides an inventive concept or significantly more, as exemplified by ((MPEP 2106.05)(g)(Mere Data Gathering) i. Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); iv. Obtaining information about transactions using the Internet to verify credit card transactions, CyberSource v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011);
Post-Solution Activity:
accomplishing an enhanced oil recovery technique so as to account for an estimated change in aqueous viscosity induced by injection of the first fluid into a real world hydrocarbon reservoir.
Performing an oil recovery operation after setting up such an operation through abstract means, this abstract process being what the claims are directed to, amounts to no more than insignificant post-solution activity.
This element merely acts on the results of the previous abstract steps. A claim element that merely acts on a series of previous abstract steps is not indicative of integration into a practical solution nor evidence that the claim provides an inventive concept, as exemplified by ((MPEP 2106.05)(g)(Insignificant application) i. Cutting hair after first determining the hair style, In re Brown, 645 Fed. App'x 1014, 1016-1017 (Fed. Cir. 2016) and ii. Printing or downloading generated menus, Ameranth, 842 F.3d at 1241-42, 120 USPQ2d at 1854-55.)
Mere Instructions to Apply (MPEP 2106.05(f)) has found that merely applying a judicial exception such as an abstract idea, as by performing it on a computer, does not integrate the claim into a practical solution.
Mere Instructions to Apply:
A method comprising: generating a model of a hydrocarbon reservoir comprising input parameters of the hydrocarbon reservoir substrate sample from the processor; … a first fluid injection … modifying, based in part on the determination that the critical trapping number has been exceeded, a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the hydrocarbon reservoir;
Applying a computer to perform a generic simulation at a high level of generality is simply the act of instructing a computer to perform generic functions to perform that simulation, which is merely an instruction to apply a computer to the judicial exception. The claim only recites the idea of a solution or outcome, i.e. that the reservoir and operations are “simulated” without reciting how this simulation is actually accomplished. Further, the computer elements claimed are cited as merely generic tools to perform the operations; for additional clarity see ([Par 47] “. In various embodiments, the model can be or include a 3D multiphase-flow, transport, and chemical-flooding simulator and/or a carbonate core model.” [Par 44] “For example, computer system 100 may represent components of interconnected computer systems that are capable of communicating information between one another. In general, computer system 100 may include any appropriate combination of hardware and/or software suitable to provide the described functionality.”)
The courts have found that such mere instructions to apply are not indicative of integration into a practical application nor recitation of significantly more than the judicial exception (MPEP 2106.05(f) “Another consideration when determining whether a claim integrates a judicial exception into a practical application in Step 2A Prong Two or recites significantly more than a judicial exception in Step 2B is whether the additional elements amount to more than a recitation of the words "apply it" (or an equivalent) or are more than mere instructions to implement an abstract idea or other exception on a computer. As explained by the Supreme Court, in order to make a claim directed to a judicial exception patent-eligible, the additional element or combination of elements must do "‘more than simply stat[e] the [judicial exception] while adding the words ‘apply it’". Alice Corp. v. CLS Bank, 573 U.S. 208, 221, 110 USPQ2d 1976, 1982-83 (2014) (quoting Mayo Collaborative Servs. V. Prometheus Labs., Inc., 566 U.S. 66, 72, 101 USPQ2d 1961, 1965). Thus, for example, claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible. Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983”)
Moreover, Mere Instructions To Apply An Exception (MPEP 2106.05(f)) has found that simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more. In light of this, the additional generic computer component elements of “a processor, a model of a hydrocarbon reservoir in three dimensions and multiphase flow within the hydrocarbon reservoir” are not sufficient to integrate a judicial exception into a practical application nor provide evidence of an inventive concept.
The additional elements have been considered both individually and as an ordered combination in the consideration of whether they constitute significantly more, and have been determined not to constitute such.
The claim is ineligible.
Claim 12 recites “wherein determining a trapping number of the hydrocarbon reservoir comprises an injection of a first fluid into the model of the hydrocarbon reservoir, optionally wherein the first fluid comprises a polymer.”
A person could mentally model the operation of injecting a fluid into a reservoir by drawing images of such an injection procedure with a pencil and paper, drawing a different image for each step of the process.
Doing this in a true 3D computer environment amounts to no more than mere instructions to apply.
Should it be found that modelling the injection into the reservoir is not a mental process, it is also an example of mere data gathering and mere instructions to apply.
Without any specifics as to how this model is generated nor how it operates, the generation of the model and induction of an injection within that model amounts to no more than merely gathering data representative of that model.
Should it be found that this is not an example of mere data gathering, it is also an example of mere instructions to apply.
Applying a computer to perform a generic simulation at a high level of generality is simply the act of instructing a computer to perform generic functions to perform that simulation, which is merely an instruction to apply a computer to the judicial exception. The claim only recites the idea of a solution or outcome, i.e. that the reservoir and associated operations are “modelled” and simulated fluids are “injected” without reciting how this modelling is actually accomplished. Further, the computer elements claimed are cited as merely generic tools to perform the operations; for additional clarity see ([Par 47] “. In various embodiments, the model can be or include a 3D multiphase-flow, transport, and chemical-flooding simulator and/or a carbonate core model.” [Par 44] “For example, computer system 100 may represent components of interconnected computer systems that are capable of communicating information between one another. In general, computer system 100 may include any appropriate combination of hardware and/or software suitable to provide the described functionality.”)
Claim 14 recites “further comprising, determining expected oil recovery for a second hydrocarbon reservoir having a substrate that is the same as or similar to the substrate of the model of a first hydrocarbon reservoir, optionally wherein determining the expected oil recovery comprises determining the expected oil recovery using an enhanced oil recovery technique.”
A person could predict how much oil is recovered by this technique by making a guess as to how much oil would be displaced by the procedure. For example if previous similar substrates recovered 100 gallons of oil under the same technique, they could reasonably predict that a similar amount of oil would be recovered this time.
Claim 16 (Statutory Category – Process)
Step 2A – Prong 1: Judicial Exception Recited?
Yes, the claim recites a mental process, specifically:
MPEP 2106.04(a)(2)(Ill): “Accordingly, the "mental processes" abstract idea grouping is defined as concepts performed in the human mind, and examples of mental processes include observations, evaluations, Judgments, and opinions.”
Further, the MPEP recites “The courts do not distinguish between mental processes that are performed entirely in the human mind and mental processes that require a human to use a physical aid (e.g., pen and paper or a slide rule) to perform the claim limitation.”
A method, the method comprising: receiving, by a processor, input parameters of a carbonate reservoir core sample; generating a model of a carbonate reservoir in three dimensions and includes multiphase flow within the hydrocarbon carbonate reservoir comprising input parameters of the carbonate reservoir core sample from the processor;
A person could perform this prediction process by first observing the sample and making certain judgments about the reservoir it is representative of. For example, if the sample was nearly identical to previous samples that indicated a rich reservoir, a person could reasonably predict that the reservoir this sample is representative of would have similar properties and be able to produce similarly. A person could then generate the model by drawing an image of it with a pencil and paper such that it conforms to the estimated properties related to the sample. The parameters that define this model could also be written out, for example in a table. This drawing could include indications of three-dimensional measurements and flow characteristics within the reservoir.
Performing this process in a true 3D computer environment amounts to no more than mere instructions to apply.
Should it be found that providing the input parameters from the sample is not part of the mental process, it is also an example of mere data gathering.
Should it be found that modelling the reservoir is not a mental process, it is also an example of mere data gathering and mere instructions to apply.
The use of generic computer components such as processors to accomplish this amounts to no more than mere instructions to apply.
determining a critical trapping number representative of the model of the carbonate reservoir based in part on a composition of the carbonate reservoir core sample;
It is clear from the specification that determining the critical trapping number is the process of either determining the type of rock, for example sandstone has a critical trapping number of 10-6 while carbonates have a critical trapping number of 10-8 or consulting a CDC chart. If the material method is used, this process consists of identifying the rock type. This is something professionals like geologists can do based on simple observation. The rock type corresponds to a critical trapping number specific to that type. If the CDC chart method is used, this process merely consists of observing the chart and, based on measurements of the material and the curve depicted in the chart, judge what the critical trapping number should be. ([Par 57] “For example, a critical trapping number can be determined based at least in part on a composition of a substrate of the reservoir. In various embodiments, the a critical trapping number can be determined for a sandstone reservoir and/or for a carbonate reservoir. The critical trapping number can be determined based on the properties of the reservoir and/or can be determined based on the capillary desaturation curve (CDC). For example, the critical trapping number of a sandstone reservoir can be determined to be about 10-6 and the critical trapping number for carbonates can be lower than the critical trapping number of sandstone (e.g., about 10-g”)
a first polymer flood… comparing, by the processor, the trapping number of the carbonate reservoir to the critical trapping number; modifying a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the carbonate reservoir based on the determination that the critical trapping number has been exceeded; … an estimated change in aqueous viscosity that would be induced by a first polymer flood into a real world carbonate reservoir.
A person could mentally model the operation of injecting a fluid into a reservoir by drawing images of such an injection procedure with a pencil and paper, drawing a different image for each step of the process. A person could then predict how much oil is recovered by this technique by making a guess as to how much oil would be displaced by the procedure. For example if previous usages of the technique on similar substrates recovered 100 gallons of oil, they could reasonably predict that a similar amount of oil would be recovered this time.
Determining whether a number exceeds the value of another number is a mental process equivalent to observing both numbers and judging whether one if bigger than the other. This type of basic numeric comparison is commonly taught to school children in elementary school.
Changing parameters or attributes of the model based on this determination is a mental process that is equivalent to merely changing the values in the written parameter table, for example erasing the value “carbonate” for the rock type parameter and writing “sandstone” in its place, or adjusting values relating to permeability. The drawing based on these parameters could then be updated to reflect these conditions. The person could also estimate the change in aqueous viscosity caused by injection of a material, for example a person could estimate that adding a gallon of partially dissolved cornstarch mixture to a small shot glass of water would result in a solution that is thicker and more viscous than water on its own. Finally, the full recovery could be modelled by once again drawing the steps of the full process, this time drawing in such a way that the imagery reflects the more accurate information gained from calculating the trapping number and making comparisons with the critical trapping number.
Note that actually calculating the trapping number is a math concept, as analyzed below.
Note that actually accomplishing the polymer flood is an example of insignificant post-solution activity.
Should it be found that modelling the reservoir is not a mental process, it is also an example of mere data gathering and mere instructions to apply.
The use of generic computer components such as processors to accomplish this amounts to no more than mere instructions to apply.
The claim also recites a mathematic process, specifically:
determining, after a first polymer flood, a trapping number (NT) for the carbonate reservoir that accounts for the first fluid within the carbonate reservoir, wherein the trapping number is defined as: ere v is a Darcy velocity of a core sample comprising the same or-- similar material as the carbonate reservoir, p is an aqueous phase viscosity, and o., is an interfacial tension between oil and water
Determining a number through a mathematic equation amounts to no more than a mathematic process.
Step 2A – Prong 2: Integrated into a Practical Solution?
Insignificant Extra-Solution Activity (MPEP 2106.05(g)) has found mere data gathering and post solution activity to be insignificant extra-solution activity.
Data gathering:
receiving, by a processor, input parameters of a carbonate reservoir core sample;
Obtaining input parameters from the carbonate reservoir at such a high level of generality amounts to no more than mere data gathering.
generating a model of a carbonate reservoir in three dimensions and includes multiphase flow within the hydrocarbon carbonate reservoir comprising input parameters of the carbonate reservoir core sample from the processor; … a first polymer flood, … modifying a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the carbonate reservoir based on the determination that the critical trapping number has been exceeded;
Without any specifics as to how this model is generated nor how it operates, the generation of the model and induction of an injection within that model amounts to no more than merely gathering data representative of that model. Similarly, modifying the model without any specificity as to how this modification is carried out amounts to no more than gathering data representative of an updated version of the model.
Should it be found that this is not an example of mere data gathering, it is also an example of mere instructions to apply.
Post-Solution Activity:
And accomplishing a polymer flood to account for an estimated change in aqueous viscosity induced by a first polymer flood into a real world carbonate reservoir.
Performing an oil recovery operation after setting up such an operation through abstract means, this abstract process being what the claims are directed to, amounts to no more than insignificant post-solution activity.
Mere Instructions to Apply (MPEP 2106.05(f)) has found that merely applying a judicial exception such as an abstract idea, as by performing it on a computer, does not integrate the claim into a practical solution.
Mere Instructions to Apply:
A method, the method comprising… generating a model of a carbonate reservoir comprising input parameters of the carbonate reservoir core sample from the processor; … a first polymer flood, … modifying a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the carbonate reservoir based on the determination that the critical trapping number has been exceeded;
Applying a computer to perform a generic simulation at a high level of generality is simply the act of instructing a computer to perform generic functions to perform that simulation, which is merely an instruction to apply a computer to the judicial exception. The claim only recites the idea of a solution or outcome, i.e. that the reservoir and operations are “simulated” without reciting how this simulation is actually accomplished. Further, the computer elements claimed are cited as merely generic tools to perform the operations; for additional clarity see ([Par 47] “. In various embodiments, the model can be or include a 3D multiphase-flow, transport, and chemical-flooding simulator and/or a carbonate core model.” [Par 44] “For example, computer system 100 may represent components of interconnected computer systems that are capable of communicating information between one another. In general, computer system 100 may include any appropriate combination of hardware and/or software suitable to provide the described functionality.”)
The courts have found that such mere instructions to apply are not indicative of integration into a practical application nor recitation of significantly more than the judicial exception (MPEP 2106.05(f) “Another consideration when determining whether a claim integrates a judicial exception into a practical application in Step 2A Prong Two or recites significantly more than a judicial exception in Step 2B is whether the additional elements amount to more than a recitation of the words "apply it" (or an equivalent) or are more than mere instructions to implement an abstract idea or other exception on a computer. As explained by the Supreme Court, in order to make a claim directed to a judicial exception patent-eligible, the additional element or combination of elements must do "‘more than simply stat[e] the [judicial exception] while adding the words ‘apply it’". Alice Corp. v. CLS Bank, 573 U.S. 208, 221, 110 USPQ2d 1976, 1982-83 (2014) (quoting Mayo Collaborative Servs. V. Prometheus Labs., Inc., 566 U.S. 66, 72, 101 USPQ2d 1961, 1965). Thus, for example, claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible. Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983”)
Moreover, Mere Instructions To Apply An Exception (MPEP 2106.05(f)) has found that simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more. In light of this, the additional generic computer component elements of “a processor, a model of a carbonate reservoir in three dimensions and includes multiphase flow” are not sufficient to integrate a judicial exception into a practical application nor provide evidence of an inventive concept.
Step 2B: Claim provides an Inventive Concept?
No, as discussed with respect to Step 2A, the additional limitations are insignificant extra-solution activity or mere instructions to apply. and do not impose any meaningful limits on practicing the abstract idea and therefore the claim does not provide an inventive concept in Step 2B.
Insignificant Extra-Solution Activity (MPEP 2106.05(g)) has found mere data gathering and post solution activity to be insignificant extra-solution activity.
Data gathering:
receiving, by a processor, input parameters of a carbonate reservoir core sample;
Obtaining input parameters from the carbonate reservoir at such a high level of generality amounts to no more than mere data gathering.
A claim element that amounts to merely gathering data is not indicative of integration into a
practical solution nor evidence that the claim provides an inventive concept or significantly more, as exemplified by ((MPEP 2106.05)(g)(Mere Data Gathering) i. Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); iv. Obtaining information about transactions using the Internet to verify credit card transactions, CyberSource v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011);
generating a model of a carbonate reservoir comprising input parameters of the carbonate reservoir core sample from the processor; … a first polymer flood, … modifying a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the carbonate reservoir based on the determination that the critical trapping number has been exceeded;
Without any specifics as to how this model is generated nor how it operates, the generation of the model and induction of an injection within that model amounts to no more than merely gathering data representative of that model. Similarly, modifying the model without any specificity as to how this modification is carried out amounts to no more than gathering data representative of an updated version of the model.
Should it be found that this is not an example of mere data gathering, it is also an example of mere instructions to apply.
A claim element that amounts to merely gathering data is not indicative of integration into a
practical solution nor evidence that the claim provides an inventive concept or significantly more, as exemplified by ((MPEP 2106.05)(g)(Mere Data Gathering) i. Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); iv. Obtaining information about transactions using the Internet to verify credit card transactions, CyberSource v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011);
Post-Solution Activity:
And accomplishing a polymer flood to account for an estimated change in aqueous induced by a first polymer flood into a real world carbonate reservoir.
Performing an oil recovery operation after setting up such an operation through abstract means, this abstract process being what the claims are directed to, amounts to no more than insignificant post-solution activity.
This element merely acts on the results of the previous abstract steps. A claim element that merely acts on a series of previous abstract steps is not indicative of integration into a practical solution nor evidence that the claim provides an inventive concept, as exemplified by ((MPEP 2106.05)(g)(Insignificant application) i. Cutting hair after first determining the hair style, In re Brown, 645 Fed. App'x 1014, 1016-1017 (Fed. Cir. 2016) and ii. Printing or downloading generated menus, Ameranth, 842 F.3d at 1241-42, 120 USPQ2d at 1854-55.)
Mere Instructions to Apply (MPEP 2106.05(f)) has found that merely applying a judicial exception such as an abstract idea, as by performing it on a computer, does not integrate the claim into a practical solution.
Mere Instructions to Apply:
A method, the method comprising… generating a model of a carbonate reservoir comprising input parameters of the carbonate reservoir core sample from the processor; … a first polymer flood, … modifying a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the carbonate reservoir based on the determination that the critical trapping number has been exceeded;
Applying a computer to perform a generic simulation at a high level of generality is simply the act of instructing a computer to perform generic functions to perform that simulation, which is merely an instruction to apply a computer to the judicial exception. The claim only recites the idea of a solution or outcome, i.e. that the reservoir and operations are “simulated” without reciting how this simulation is actually accomplished. Further, the computer elements claimed are cited as merely generic tools to perform the operations; for additional clarity see ([Par 47] “. In various embodiments, the model can be or include a 3D multiphase-flow, transport, and chemical-flooding simulator and/or a carbonate core model.” [Par 44] “For example, computer system 100 may represent components of interconnected computer systems that are capable of communicating information between one another. In general, computer system 100 may include any appropriate combination of hardware and/or software suitable to provide the described functionality.”)
The courts have found that such mere instructions to apply are not indicative of integration into a practical application nor recitation of significantly more than the judicial exception (MPEP 2106.05(f) “Another consideration when determining whether a claim integrates a judicial exception into a practical application in Step 2A Prong Two or recites significantly more than a judicial exception in Step 2B is whether the additional elements amount to more than a recitation of the words "apply it" (or an equivalent) or are more than mere instructions to implement an abstract idea or other exception on a computer. As explained by the Supreme Court, in order to make a claim directed to a judicial exception patent-eligible, the additional element or combination of elements must do "‘more than simply stat[e] the [judicial exception] while adding the words ‘apply it’". Alice Corp. v. CLS Bank, 573 U.S. 208, 221, 110 USPQ2d 1976, 1982-83 (2014) (quoting Mayo Collaborative Servs. V. Prometheus Labs., Inc., 566 U.S. 66, 72, 101 USPQ2d 1961, 1965). Thus, for example, claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible. Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983”)
Moreover, Mere Instructions To Apply An Exception (MPEP 2106.05(f)) has found that simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more. In light of this, the additional generic computer component elements of “a processor, a model of a carbonate reservoir in three dimensions and includes multiphase flow” are not sufficient to integrate a judicial exception into a practical application nor provide evidence of an inventive concept.
The additional elements have been considered both individually and as an ordered combination in the consideration of whether they constitute significantly more, and have been determined not to constitute such.
The claim is ineligible.
Claim 21 recites “wherein determining the trapping number comprises an injection of a first polymer flood into a model of a carbonate reservoir.
A person could mentally model a reservoir by drawing images of such a reservoir and depicting each step of the injection process with a pencil and paper. They could base these drawings on a table of written parameters, such as a parameter that signifies that the rock in the reservoir has a certain density.
Doing this in a true 3D computer environment amounts to no more than mere instructions to apply.
Should it be found that modelling the injection into the reservoir is not a mental process, it is also an example of mere data gathering and mere instructions to apply.
Without any specifics as to how this model is generated nor how it operates, the generation of the model and induction of an injection within that model amounts to no more than merely gathering data representative of that model.
Should it be found that this is not an example of mere data gathering, it is also an example of mere instructions to apply.
Applying a computer to perform a generic simulation at a high level of generality is simply the act of instructing a computer to perform generic functions to perform that simulation, which is merely an instruction to apply a computer to the judicial exception. The claim only recites the idea of a solution or outcome, i.e. that the reservoir and associated operations are “modelled” and simulated fluids are “injected” without reciting how this modelling is actually accomplished. Further, the computer elements claimed are cited as merely generic tools to perform the operations; for additional clarity see ([Par 47] “. In various embodiments, the model can be or include a 3D multiphase-flow, transport, and chemical-flooding simulator and/or a carbonate core model.” [Par 44] “For example, computer system 100 may represent components of interconnected computer systems that are capable of communicating information between one another. In general, computer system 100 may include any appropriate combination of hardware and/or software suitable to provide the described functionality.”)
Claim 23 recites “further comprising, determining expected oil recovery for a carbonate reservoir having a core sample that is the same as or similar to the core sample of the model of the carbonate reservoir, optionally wherein determining the expected oil recovery comprises determining the expected oil recovery using an enhanced oil recovery technique.”
A person could predict how much oil is recovered by this technique by making a guess as to how much oil would be displaced by the procedure. For example if previous usages of the technique on similar substrates recovered 100 gallons of oil, they could reasonably predict that a similar amount of oil would be recovered this time.
Claim 25 (Statutory Category – Machine)
Step 2A – Prong 1: Judicial Exception Recited?
Yes, the claim recites a mental process, specifically:
MPEP 2106.04(a)(2)(Ill): “Accordingly, the "mental processes" abstract idea grouping is defined as concepts performed in the human mind, and examples of mental processes include observations, evaluations, Judgments, and opinions.”
Further, the MPEP recites “The courts do not distinguish between mental processes that are performed entirely in the human mind and mental processes that require a human to use a physical aid (e.g., pen and paper or a slide rule) to perform the claim limitation.”
receive input parameters of a hydrocarbon reservoir substrate sample; generate a model of a hydrocarbon reservoir in three dimensions and includes multiphase flow within the hydrocarbon reservoir comprising input parameters of the hydrocarbon reservoir substrate sample;
A person could perform this prediction process by first observing the sample and making certain judgments about the reservoir it is representative of. For example, if the sample was nearly identical to previous samples that indicated a rich reservoir, a person could reasonably predict that the reservoir this sample is representative of would have similar properties and be able to produce similarly. A person could then generate the model by drawing an image of it with a pencil and paper such that it conforms to the estimated properties related to the sample. The parameters that define this model could also be written out, for example in a table. This drawing could include indications of three-dimensional measurements and flow characteristics within the reservoir.
Performing this process in a true 3D computer environment amounts to no more than mere instructions to apply.
Should it be found that providing the input parameters from the sample is not part of the mental process, it is also an example of mere data gathering.
Should it be found that modelling the reservoir is not a mental process, it is also an example of mere data gathering and mere instructions to apply.
The use of generic computer components such as processors to accomplish this amounts to no more than mere instructions to apply.
determine a critical trapping number representative of the model of the hydrocarbon reservoir based in part on a composition of the hydrocarbon reservoir substrate sample;
It is clear from the specification that determining the critical trapping number is the process of either determining the type of rock, for example sandstone has a critical trapping number of 10-6 while carbonates have a critical trapping number of 10-8 or consulting a CDC chart. If the material method is used, this process consists of identifying the rock type. This is something professionals like geologists can do based on simple observation. The rock type corresponds to a critical trapping number specific to that type. If the CDC chart method is used, this process merely consists of observing the chart and, based on measurements of the material and the curve depicted in the chart, judge what the critical trapping number should be. ([Par 57] “For example, a critical trapping number can be determined based at least in part on a composition of a substrate of the reservoir. In various embodiments, the a critical trapping number can be determined for a sandstone reservoir and/or for a carbonate reservoir. The critical trapping number can be determined based on the properties of the reservoir and/or can be determined based on the capillary desaturation curve (CDC). For example, the critical trapping number of a sandstone reservoir can be determined to be about 10-6 and the critical trapping number for carbonates can be lower than the critical trapping number of sandstone (e.g., about 10-g”)
a first fluid injection… compare the trapping number of the hydrocarbon reservoir to the critical trapping number; modify a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the hydrocarbon reservoir based on the determination that the critical trapping number has been exceeded; determine expected oil recovery for a reservoir having a substrate that is the same or similar to the substrate of the model of the hydrocarbon reservoir;
A person could mentally model the operation of injecting a fluid into a reservoir by drawing images of such an injection procedure with a pencil and paper, drawing a different image for each step of the process. A person could then predict how much oil is recovered by this technique by making a guess as to how much oil would be displaced by the procedure. For example if previous usages of the technique on similar substrates recovered 100 gallons of oil, they could reasonably predict that a similar amount of oil would be recovered this time.
Determining whether a number exceeds the value of another number is a mental process equivalent to observing both numbers and judging whether one if bigger than the other. This type of basic numeric comparison is commonly taught to school children in elementary school.
Changing parameters or attributes of the model based on this determination is a mental process that is equivalent to merely changing the values in the written parameter table, for example erasing the value “carbonate” for the rock type parameter and writing “sandstone” in its place, or adjusting values relating to permeability. The drawing based on these parameters could then be updated to reflect these conditions.
If a sample associated with a previous recovery is substantially similar to a new sample a person is looking at, they could reasonably conclude that a recovery done on the reservoir of which the new sample is representative would produce similar results to that of the one associated with the other sample.
Finally, the full recovery could be modelled by once again drawing the steps of the full process, this time drawing in such a way that the imagery reflects the more accurate information gained from calculating the trapping number and making comparisons with the critical trapping number.
Note that actually calculating the trapping number is a math concept, as analyzed below.
Note that actually accomplishing the enhanced oil recovery is an example of insignificant post-solution activity.
Performing this process in a true 3D computer environment amounts to no more than mere instructions to apply.
Should it be found that modelling the reservoir is not a mental process, it is also an example of mere data gathering and mere instructions to apply.
The use of generic computer components such as processors to accomplish this amounts to no more than mere data gathering and mere instructions to apply.
Further, the claim also includes a mathematic concept, specifically:
determine, after a first fluid injection, a trapping number (NT) for the hydrocarbon reservoir that accounts for the first fluid within the hydrocarbon reservoir, wherein the trapping number is defined as: ° where v is a Darcy velocity of a core sample comprising the same orUow similar material as the hydrocarbon reservoir, p is an aqueous phase viscosity, and o.- is an interfacial tension between oil and water;
Determining a number through a mathematic equation amounts to no more than a mathematic process.
Step 2A – Prong 2: Integrated into a Practical Solution?
Insignificant Extra-Solution Activity (MPEP 2106.05(g)) has found mere data gathering and post solution activity to be insignificant extra-solution activity.
Data gathering:
receive input parameters of a hydrocarbon reservoir substrate sample;
Obtaining input parameters from the reservoir at such a high level of generality amounts to no more than mere data gathering.
generate a model of a hydrocarbon reservoir in three dimensions and includes multiphase flow within the hydrocarbon reservoir comprising input parameters of the hydrocarbon reservoir substrate sample; … a first fluid injection… modify a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the hydrocarbon reservoir based on the determination that the critical trapping number has been exceeded;
Without any specifics as to how this model is generated nor how it operates, the generation of the model and induction of an injection within that model amounts to no more than merely gathering data representative of that model. Similarly, modifying the model without any specificity as to how this modification is carried out amounts to no more than gathering data representative of an updated version of the model.
Should it be found that this is not an example of mere data gathering, it is also an example of mere instructions to apply.
Post-Solution Activity:
accomplish an enhanced oil recovery technique in the reservoir having a substrate that is the same or similar to the substrate of the model of the hydrocarbon reservoir based on the expected oil recovery.
Performing an oil recovery operation after setting up such an operation through abstract means, this abstract process being what the claims are directed to, amounts to no more than insignificant post-solution activity.
Mere Instructions to Apply (MPEP 2106.05(f)) has found that merely applying a judicial exception such as an abstract idea, as by performing it on a computer, does not integrate the claim into a practical solution.
Mere Instructions to Apply:
A computer system comprising: rewritable memory; and a processor operable in response to execution instructions stored in the rewritable memory to: generate a model of a hydrocarbon reservoir comprising input parameters of the hydrocarbon reservoir substrate sample; … a first fluid injection … modify a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the hydrocarbon reservoir based on the determination that the critical trapping number has been exceeded;
Applying a computer to perform a generic simulation at a high level of generality is simply the act of instructing a computer to perform generic functions to perform that simulation, which is merely an instruction to apply a computer to the judicial exception. The claim only recites the idea of a solution or outcome, i.e. that the reservoir and operations are “simulated” without reciting how this simulation is actually accomplished. Further, the computer elements claimed are cited as merely generic tools to perform the operations; for additional clarity see ([Par 47] “. In various embodiments, the model can be or include a 3D multiphase-flow, transport, and chemical-flooding simulator and/or a carbonate core model.” [Par 44] “For example, computer system 100 may represent components of interconnected computer systems that are capable of communicating information between one another. In general, computer system 100 may include any appropriate combination of hardware and/or software suitable to provide the described functionality.”)
The courts have found that such mere instructions to apply are not indicative of integration into a practical application nor recitation of significantly more than the judicial exception (MPEP 2106.05(f) “Another consideration when determining whether a claim integrates a judicial exception into a practical application in Step 2A Prong Two or recites significantly more than a judicial exception in Step 2B is whether the additional elements amount to more than a recitation of the words "apply it" (or an equivalent) or are more than mere instructions to implement an abstract idea or other exception on a computer. As explained by the Supreme Court, in order to make a claim directed to a judicial exception patent-eligible, the additional element or combination of elements must do "‘more than simply stat[e] the [judicial exception] while adding the words ‘apply it’". Alice Corp. v. CLS Bank, 573 U.S. 208, 221, 110 USPQ2d 1976, 1982-83 (2014) (quoting Mayo Collaborative Servs. V. Prometheus Labs., Inc., 566 U.S. 66, 72, 101 USPQ2d 1961, 1965). Thus, for example, claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible. Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983”)
Step 2B: Claim provides an Inventive Concept?
No, as discussed with respect to Step 2A, the additional limitations are insignificant extra-solution activity or mere instructions to apply. and do not impose any meaningful limits on practicing the abstract idea and therefore the claim does not provide an inventive concept in Step 2B.
Insignificant Extra-Solution Activity (MPEP 2106.05(g)) has found mere data gathering and post solution activity to be insignificant extra-solution activity.
Data gathering:
receive input parameters of a hydrocarbon reservoir substrate sample;
Obtaining input parameters from the reservoir at such a high level of generality amounts to no more than mere data gathering.
A claim element that amounts to merely gathering data is not indicative of integration into a
practical solution nor evidence that the claim provides an inventive concept or significantly more, as exemplified by ((MPEP 2106.05)(g)(Mere Data Gathering) i. Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); iv. Obtaining information about transactions using the Internet to verify credit card transactions, CyberSource v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011);
generate a model of a hydrocarbon reservoir in three dimensions and includes multiphase flow within the hydrocarbon reservoir comprising input parameters of the hydrocarbon reservoir substrate sample; … a first fluid injection… modify a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the hydrocarbon reservoir based on the determination that the critical trapping number has been exceeded;
Without any specifics as to how this model is generated nor how it operates, the generation of the model and induction of an injection within that model amounts to no more than merely gathering data representative of that model. Similarly, modifying the model without any specificity as to how this modification is carried out amounts to no more than gathering data representative of an updated version of the model.
Should it be found that this is not an example of mere data gathering, it is also an example of mere instructions to apply.
A claim element that amounts to merely gathering data is not indicative of integration into a
practical solution nor evidence that the claim provides an inventive concept or significantly more, as exemplified by ((MPEP 2106.05)(g)(Mere Data Gathering) i. Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); iv. Obtaining information about transactions using the Internet to verify credit card transactions, CyberSource v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011);
Post-Solution Activity:
accomplish an enhanced oil recovery technique in the reservoir having a substrate that is the same or similar to the substrate of the model of the hydrocarbon reservoir based on the expected oil recovery.
Performing an oil recovery operation after setting up such an operation through abstract means, this abstract process being what the claims are directed to, amounts to no more than insignificant post-solution activity.
This element merely acts on the results of the previous abstract steps. A claim element that merely acts on a series of previous abstract steps is not indicative of integration into a practical solution nor evidence that the claim provides an inventive concept, as exemplified by ((MPEP 2106.05)(g)(Insignificant application) i. Cutting hair after first determining the hair style, In re Brown, 645 Fed. App'x 1014, 1016-1017 (Fed. Cir. 2016) and ii. Printing or downloading generated menus, Ameranth, 842 F.3d at 1241-42, 120 USPQ2d at 1854-55.)
Mere Instructions to Apply (MPEP 2106.05(f)) has found that merely applying a judicial exception such as an abstract idea, as by performing it on a computer, does not integrate the claim into a practical solution.
Mere Instructions to Apply:
A computer system comprising: rewritable memory; and a processor operable in response to execution instructions stored in the rewritable memory to: generate a model of a hydrocarbon reservoir comprising input parameters of the hydrocarbon reservoir substrate sample; … a first fluid injection … modify a relative permeability curve and a residual oil saturation using a capillary desaturation curve model of the hydrocarbon reservoir based on the determination that the critical trapping number has been exceeded;
Applying a computer to perform a generic simulation at a high level of generality is simply the act of instructing a computer to perform generic functions to perform that simulation, which is merely an instruction to apply a computer to the judicial exception. The claim only recites the idea of a solution or outcome, i.e. that the reservoir and operations are “simulated” without reciting how this simulation is actually accomplished. Further, the computer elements claimed are cited as merely generic tools to perform the operations; for additional clarity see ([Par 47] “. In various embodiments, the model can be or include a 3D multiphase-flow, transport, and chemical-flooding simulator and/or a carbonate core model.” [Par 44] “For example, computer system 100 may represent components of interconnected computer systems that are capable of communicating information between one another. In general, computer system 100 may include any appropriate combination of hardware and/or software suitable to provide the described functionality.”)
The courts have found that such mere instructions to apply are not indicative of integration into a practical application nor recitation of significantly more than the judicial exception (MPEP 2106.05(f) “Another consideration when determining whether a claim integrates a judicial exception into a practical application in Step 2A Prong Two or recites significantly more than a judicial exception in Step 2B is whether the additional elements amount to more than a recitation of the words "apply it" (or an equivalent) or are more than mere instructions to implement an abstract idea or other exception on a computer. As explained by the Supreme Court, in order to make a claim directed to a judicial exception patent-eligible, the additional element or combination of elements must do "‘more than simply stat[e] the [judicial exception] while adding the words ‘apply it’". Alice Corp. v. CLS Bank, 573 U.S. 208, 221, 110 USPQ2d 1976, 1982-83 (2014) (quoting Mayo Collaborative Servs. V. Prometheus Labs., Inc., 566 U.S. 66, 72, 101 USPQ2d 1961, 1965). Thus, for example, claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible. Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983”)
Moreover, Mere Instructions To Apply An Exception (MPEP 2106.05(f)) has found that simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more. In light of this, the additional generic computer component elements of “A computer system comprising: rewritable memory; and a processor operable in response to execution instructions stored in the rewritable memory to: … a model of a hydrocarbon reservoir in three dimensions and includes multiphase flow within the hydrocarbon reservoir” are not sufficient to integrate a judicial exception into a practical application nor provide evidence of an inventive concept.
The additional elements have been considered both individually and as an ordered combination in the consideration of whether they constitute significantly more, and have been determined not to constitute such.
The claim is ineligible.
Claim 32 “wherein the enhanced oil recovery technique comprises polymer flooding.”
This merely clarifies the form of the EOR and is therefore merely an extension of the mental process, post solution activity, and mere instructions to apply.
Claim 33 “wherein the enhanced oil recovery technique comprises polymer flooding.”
This merely clarifies the form of the EOR and is therefore merely an extension of the mental process, post solution activity, and mere instructions to apply.
Claim 34 “wherein the enhanced oil recovery technique comprises polymer flooding.”
This merely clarifies the form of the EOR and is therefore merely an extension of the mental process, post solution activity, and mere instructions to apply.
Claim 35 “wherein the hydrocarbon reservoir comprises a carbonate reservoir”
This merely clarifies the form of the reservoir and is therefore merely an extension of the math and mental process, data gathering, post solution activity, and mere instructions to apply.
Claim 36 “wherein the hydrocarbon reservoir comprises a carbonate reservoir”
This merely clarifies the form of the reservoir and is therefore merely an extension of the math and mental process, data gathering, post solution activity, and mere instructions to apply.
Conclusion
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/M.P.M./ Examiner, Art Unit 2187
/EMERSON C PUENTE/ Supervisory Patent Examiner, Art Unit 2187
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