Ex. PGS 1044
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`Protective Order Material – Subject to Protective Order
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`H!GHL Y CONF!DE\!T!AL !NFORMA T!ON-SUBJECT TO PROTECTIVE ORDER
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`Il\ THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`WESTERNGECO L.L.C.,
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`Plaintiff,
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`~
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`ION GEOPHYSICAL CORPORATION,
`FUGRO-GEOTEAM, INC., FUGRO-GEOTEAM
`AS, FUGRONORWAYMARINE SERVICES AS,
`FUGRO, INC., FUORO (USA), INC.,
`and FUGRO GEOSERVJCES, INC.,
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`Defendants.
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`Civil Action No. 4:09-CV -01827
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`Han. Keith P. Ellison
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`JURY TRIAL DEMANDED
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`REBUTTAL EXPERT REPORT OF MICHAELS. TRIANTAFYLLOU
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`HJGHL Y CONFIDENTIAL INFORMATION-SUBJECT TO PROTECTIVE ORDER
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`ACCESS RESTRICTED- ATTORNEYS ONLY- USDC SDTX
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`Ed€:,a
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`Exhibit No. 3
`Wo•·ldwidc Court
`Rcnorters, Jnc.
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`WG-PGS00040491
`WG-PGS00040491
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`Ex. PGS 1044
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`HIGHLY CONFIDENTIAL INFORMATION-SUBJECT TO PROTECTIVE ORDER
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`J.
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`Ellwlm '025
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`113. The Elholrn reference (EP Publication Number 0 613 025 AI) is a
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`European patent application that was published August 31, 1994.
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`(WG00023283) The Elholm '025 reference discloses a device that can be
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`used to position seismic equipment by creating tension at the front end of an
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`array (using a spreading device
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`also known as a paravace) wilhuul having
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`a connection to the surface. (WG00023283-84) The goal of the reference is
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`to replace old devices that relied on connections to the surface with floats or
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`vessels. (\\'000023284 at 2:16--49) Due to their connection to the surfac~
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`through floats or vessels the old devices created drag, increased the likelihood
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`oftangles with debris, and induced additional wave noise into the seismic
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`n1easurements. (Jd.) Fugro cites to the Elholm '025 reference and claims that
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`it anticipates Claims 1-3 and 16 of the '017 Patent. (Garris Report at 47) It is
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`my opinion that the Elholm '025 reference does not anticipate or render
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`obvious any claims of the "017 Patent. Tne Elholm "025 reference is cited on
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`the face of the '017 Patent and the '607 Palenl. ('017 Patent; '607 Patent)
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`114. Elholm '025 fails to disclose the use of multiple streamer positioning
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`devices. Rather~ Elhulm '025 leaches lhe use of only a single device attached
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`at lhe fronl of an anay. Elholm '025 fails to teach obtaining the predicted
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`position of the streamer positioning devices or using the predicted position
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`anu t:smnaL~u vewcny w catcmme nes1rea cnanges m wmg onentatwn.
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`Furthermore, while Elholm '025 does mention that a computer can send
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`control signals based on a variety of inputs- including speed- it fails to
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`HIGHLY CONFIDENTIAL INFORMA TION-SUB.JECT TO PROTECTIVE ORDER
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`connect the use of speed5 to any predicted position in order to determine a
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`wing angle for streamer positioning devices.
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`115.
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`For Claim 2 of the '017 Patent, rugro admits that Elholm '025 fails to
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`explicitly disclose obtaining an estimated velocity using a vessel speed
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`obtained from d1e vessel's navigation system. (Garris Report at 51) Rather,
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`Fugro claims that the limitation is inherent in Elholm '025. I disagree. In my
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`opinion, there is nothing in Elholm '025 that shows the use ofGPS, LORAN,
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`a vessel's pitot tubes, or transmitting vessel speed information from a vessel
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`navigation system for use in determining a desired wing m1gle change. Fugro
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`merely claims that GPS and LORAN are common. The fact that a vessel
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`might have GPS or LORAN (something that Fugro also fails to show beyond
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`its mere assertion) does not show that Elholm '025 inherently discloses the
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`use of vessel speed in detennining the desired wing angle for streamer
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`positioning devices.
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`116.
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`Similarly, for Claim 3 of the '0 17 Patent Fugro claims thot a person of
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`ordinary skill in the art would understand that "a pitot pressure transmitter is
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`used to estimate water-referenced towing velocity." (Garris Report at 51) But
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`even if that were true, Fugro fails to show any connection between a pitot
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`pressure measurement, compensating for the speed and direction of marine
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`currents, and the calculation of a desired wing angle.
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`117.
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`In addition, as Fugro points out in its report, a patent examiner at the
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`United States Patent and Trademark Office considered the Elholm '025
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`5 Additionally, Elbolm '025 does n-ot identifj \Vhat speed is being measured ---e.g, the devices, t'IJ.e vessel, the
`current speed, et cetera.
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`HIGHLY CONFIDENTIAL INFORMATION-SUBJECT TO PROTECTIVE ORDER
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`reference before granting the '017 Patent. (Garris Repmi at 48) Fugro claims
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`that the examiner made several mistakes when examining Elholm '025 and
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`the '017 Patent. First, Fugro claims that the '017 Patent does not disclose the
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`use of multiple streamer positoning devices on each seismic streamer.
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`(Garris Report at 48) I disagree_ Both the preamble and the claims6 of the
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`'017 Patent (e.g., Claims 1, 16) use the term "streamer positioning devices."
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`The '0 17 Patent claims the use of multiple streamer positioning devices on a
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`streamer. Second, Fngro claims that even if the '017 Patent recites the use of
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`multiple streamer positioning devices, Elholm '025 discloses the san1e thing
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`-contrary to the patent examiner's conclusion. (Ganis Report at 48) But
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`Elholm '025 docs not disclose the use of multiple streamer positioning
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`devices on a single streamer. Both of Fugro' s citations merely show that a
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`single device is used on individual streamers_ (WG00023285 at 4:45-49;
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`WG00023288 at Figure 1)
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`118.
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`Fugro also claims that Claims 1-9 and 15 of the '607 Patent are obvious
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`in view ofElholm '025. (Garris Report at 60) I understand that WesternGeco
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`is only asserting Claims 1-3 and 15 of the '607 Patent. I Vvill restrict my
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`discussion to those claims. My analysis in Paragraphs 113- 117 above applies
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`here as well.
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`119.
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`Fugro admits that Elholm '025 fails to disclose more than one streamer
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`positioning device on a seismic streamer. (Garris Report at 60) I agree. But I
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`6 I unC.erstand from counsel that Fugro's expert, Mr. Garris, improperly included legul conclusions and nrgument on
`this point in his report. I furl.he:r understand f::om counsel that the preamble to a p<!tent claim can add limitations to a
`pstent claim in c.ertain circ.umstances_ Fugro's report also specul;:ttes on the reasons for the '607 Patent containing
`different language than the '0 17. (Garris Repori at 49) But Fugro fails to cite anythir1g for its speculation.
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`disagree that adding additional control devices such as those disclosed in the
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`Elholm '025 reference would be obvious. As discussed above, the goal of the
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`Ejhoim ;025 reference was to provide a device withouL connection w the
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`ocean )s surface in order to induce "spread)' or tension at the head of a seismic
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`array. There is no indication or suggestion in Elholm '025 to add additional
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`devices along the seismic streamer. Indeed, the goals ofEihoim ·ozs were to
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`reduce drag and noise- attributes that would be increased if more devices
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`were added to the seismic streamers. Elholm '025 thus teaches away from
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`this aspect ofthe '607 Patent.
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`120. Fngro also claims that the patent examiner would have rejected the '607
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`and '017 Patents for obviousness if !he law as stated in KSR v. Teleflex had
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`existed at the time of the prosecution of the '017 and '607 Patents 7 (Garris
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`Report at 62-63) I note that while Fugro discusses this issue in its report
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`related to the '607 Patent, the examiner and prosecuting attomey had no
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`discussion about Elholm '025 during the prosecution ofthe '607 Patent.
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`121. Even during the prosecution of the '017 Patent, lhe prosecuting attorney
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`pointed out that Elholm '025 failed to create a prima facie case of obviousness
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`because it lacked all of the '017 Patent claim limitations. Furthermore, the
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`attomey went on to point out that Elholm '025 lacked any reference to
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`predicted positions and estimated velocities of the streamer positioning
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`devices to produce a desired change in wing orientation. Fugro fails to
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`provide any reason why any of the missing elements would have been obvious
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`1 I understand from counsel that this is again a legal argument that is inappropriate in an cxpc1t rcpm1 on technical
`issues. r..1creover, I understand that the KSR decision is not relevant to the presumption of validity that attar,he~ to
`patents that issued prior to KSR.
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`HIGHLY CONFIDENTIAL INFORMATION-SUB.TECT TO PROTECTIVE ORDER
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`to a person of ordinary skill in the art at the time. Indeed, Fugro merely relies
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`on a reference to a 2007 Supreme Court decision and a conclusory statement
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`claiming that the patent examiner would have done something different given
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`that decision in 2003. (Ganis Report at 62-63) I note that Fugro's expert is
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`not an expert on the law or the patent examiner's im1er reasoning.
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`k.
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`Eiholm ·uzs & Uoiengows!G '568
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`122. My analysis in Paragraphs 113-121 above applies here as well.
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`123.
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`Fugro claims that Claims I and 15 of the '967 Patent arc rendered obvious
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`by the combination ofElholm <025 and Dolengowski '568. I disagree.
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`124. Elholm '025 fails to disclose the use of multiple streamer positioning
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`devices. Rather, Elholm '025 teaches the use of only a single device attached
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`al the front of an anay. And contrary to Fugro 's assertions, Doiengowski
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`'568 and Lamb '053 do not disclose the use of multiple streamer positioning
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`devices. (See Paragraphs 87-112 above and Paragraphs 130-143 below) In
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`addiiion, Fugro merely asserts, without any support, that a person of ordinary
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`skill in the art at the time of the invcntio.n would have combined various
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`references. l disagree. Moreover, these references do not enable the control
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`of multiple streamer positioning devices as the iatera1 control of many
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`strean1er positioning devices is a much more complicated problem than
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`controlling mm1y depth control devices or a single lateral device, and the
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`references do not contain enough detaii to enable a global or local controi
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`system.
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`125. Elholm '025 also fails to disclose transmitting location information from
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`a global control system to a local contt·oi system. For all of these reasons the
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`Ex. PGS 1044