`
`
`Ex. PGS 1027
`EX. PGS 1027
`(EXCERPTED)
`(EXCERPTED)
`
`
`
`
`
`
`
`
`
`

`

`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 1 of 31
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`WESTERNGECO L.L.C.,
`
`Plaintiff,
`
`v.
`
`)
`)
`)
`)
`)
`) Civil Action No. 4:09-CV-01827
`)
`) Judge Keith P. Ellison
`)
`) Jury Trial Demanded
`)
`)
`)
`)
`- - - - - - - - - - - - - - - - - - - )
`
`ION GEOPHYSICAL CORPORATION,
`
`Defendant.
`
`WESTERNGECO'S OPPOSITION TO ION'S MOTION FOR A NEW TRIAL
`ON INVALIDITY UNDER 35 U.S.C. §§ 102 AND 103 (D.I. 550)
`
`Lee L. Kaplan
`lkaplan@skv .com
`SMYSER KAPLAN
`& VESELKA, L.L.P.
`Bank of America Center
`700 Louisiana, Suite 2300
`Houston, TX 77002
`Tel: (713) 221-2323
`Fax: (713) 221-2320
`
`Attorneys for Plaintiff
`WesternGeco L.L. C.
`
`Of Counsel:
`
`Gregg F. LoCascio, P.C.
`gregg.locascio@kirkland.com
`KIRKLAND & ELLIS LLP
`655 Fifteenth Street, N.W.
`Washington, D.C. 20005-5793
`Tel.: (202) 879-5000
`Fax: (202) 879-5200
`
`Timothy K. Gilman
`timothy. gilman@kirkland. com
`Simeon G. Papacostas
`simeon. papacostas@kirkland. com
`KIRKLAND & ELLIS LLP
`601 Lexington A venue
`New York, New York 10022
`Tel.: (212) 446-4800
`Fax: (212) 446-4900
`
`Dated: October 26, 2012
`
`Ex. PGS 1027
`
`

`

`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 6 of 31
`
`majority of ION's other invalidity defenses were dismissed as a matter of law at trial. (D.I. 533)
`
`On August 16, 2012 the jury returned a verdict in WesternGeco' s favor on all remaining issues,
`
`finding all of the asserted patent claims willfully infringed, not anticipated and not obvious, and
`
`awarding WesternGeco $105.9 million in damages for ION's past infringement. (D.I. 536)
`
`BACKGROUND
`
`Marine seismic streamers are cables up to many miles in length that are towed behind
`
`ships. (Trial Tr. at 248:25-253: 17) An acoustic source, such as an air gun, is used to generate
`
`an acoustic signal towards the ocean floor. Id. Seismic sensors, such as hydrophones, are spaced
`
`along the length of each streamer and are used to detect the reflected acoustic signal. Id. The
`
`resulting data can be used to map the subsurface geology for the purpose of exploring,
`
`exploiting, and managing natural resources of the seabed and subsoil. I d.
`
`In 1992, Dr. Simon Bittleston began developing methods and systems for lateral streamer
`
`steering for Geco-Prakla, AS ("Geco"), a predecessor to WesternGeco.
`
`(Trial Tr. at 497:12-
`
`501:10, 518:13-519:22, 521:2-527:13)
`
`For example, Dr. Bittleston invented a streamer
`
`positioning device, or "bird," to steer the streamer both laterally and in depth, as reflected in his
`
`December 20, 1996 patent application. (ION 18, the '"636 application")
`
`In order to implement a workable steering system, Dr. Bittleston also recognized the need
`
`for sophisticated control systems for steering across the miles-long streamer array. (Trial Tr. at
`
`509:11-517:7, 532:19-534:3, 536:5-539:23) As Dr. Bittleston explained at trial, this was akin to
`
`trying to steer 200 separate airplanes on auto-pilot simultaneously, while dealing with the
`
`unpredictable forces of currents and waves in the deepwater ocean and in light of the many
`
`millions of dollars of equipment that could be destroyed or lost with any error. (I d. at 497:12-
`
`501:10, 507:11-508:3) Working with Oyvind Hillesund, another Geco engineer, Dr. Bittleston's
`
`research led to the International Patent Application WO 00/20895 (ION 19, the "'895
`
`2
`
`Ex. PGS 1027
`
`

`

`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 10 of 31
`
`the Zajac '038 patent-ION's invalidity arguments were thoroughly vetted and dismissed by the
`
`PTO before granting the '038 patent.
`
`A. Workman Does Not Teach or Enable Lateral Steering or the "Streamer
`Positioning Devices" Claimed in the Bittleston Patents
`
`The Court construed "streamer positioning device" to mean "a device that controls the
`
`position of a streamer as it is towed (e.g., a 'bird')," noting evidence that "each streamer-
`
`positioning device must be capable of steering horizontally." (D.I. 120 at 14) Workman does
`
`not enable such laterally steerable streamer positioning devices-or any lateral steering
`
`technology-and therefore cannot anticipate any of the Bittleston patent claims. The Workman
`
`patent-now owned by WesternGeco-stems from the work of Rick Workman at Western
`
`Geophysical in the 1990s before it merged with Geco in 2000 to form WesternGeco. As
`
`confirmed by multiple co-workers of Mr. Workman from this time-including ION trial witness
`
`Kenneth Williamson-Western Geophysical in general, and Mr. Workman in particular, never
`
`worked on or invented any lateral steering technology. (See, e.g., Trial Tr. at 289:20-291:12,
`
`838:7-9,4014:20-4015:6, 4110:15-23).
`
`Rather, Workman focused on noise thresholds that affect the acoustic signals used to map
`
`subsurface formations.
`
`(ION 266 at 4:37-40 ("[T]he present invention controls the use of
`
`position correction by determining when the hydrophone noise level should prevent the
`
`repositioning of the streamer cable."); see also id. at 4:61-5:31 (discussing noise thresholds))
`
`ION's expert, Mr. Brune confitmed this fact.
`
`(Id. at 3949:23-24 ("Q. The key focus of the
`
`Workman patent is noise reduction? A. Correct.")) As he admitted on cross-examination,
`
`Workman "basically presupposes that there is a working steering system" already in place.
`
`(Trial Tr. at 3950:15-19; see also id. at 3950:22-3951:5) 1 The mere reference to "lateral
`
`Unless otherwise indicated, all emphases are added.
`
`6
`
`Ex. PGS 1027
`
`

`

`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 11 of 31
`
`steering" is insufficient to enable one of ordinary skill in the art to actually practice lateral
`
`steering. Id. at 3949:4-8 ("Q. You would agree, sir, that just mentioning lateral steering in a
`
`reference does not anticipate the claims in this case, correct? A. The mere mention of it, without
`
`some disclosure at some level of detail, certainly would not."); see also Impax Labs., 545 F.3d at
`
`1314 (stating that an anticipatory reference must "enable one of ordinary skill in the art to make
`
`the invention without undue experimentation").
`
`Accordingly, Mr. Workman's '472 patent cannot anticipate WesternGeco's lateral
`
`steering inventions, because Workman never invented or enabled such technology. See Forest
`
`Labs., Inc. v. Ivax Pharms., Inc., 501 F.3d 1263, 1268 (Fed. Cir. 2007) ("A reference that is not
`
`enabling is not anticipating."); Elan Pharms., Inc. v. Mayo Found. forMed. Educ. & Research,
`
`346 F.3d 1051, 1055 (Fed. Cir. 2003) ("The disclosure in an assertedly anticipating reference
`
`must be adequate to enable possession of the desired subject matter); Fiers v. Revel, 984 F.2d
`
`1164 (Fed. Cir. 1993) ("[O]ne cannot describe what one has not conceived.").
`
`Although Workman
`
`includes references
`
`to "streamer positioning devices,"
`
`the
`
`specification makes clear that the term largely refers to depth control devices whose noise can
`
`affect the seismic survey:
`
`The use of streamer positioning devices comes at the price of introducing
`increased noise onto the seismic streamer and hence into the hydrophones. The
`areas of greatest noise are from those hydrophones which are adjacent to
`externally attached streamer positioning devices, such as depth controlling birds.
`
`(ION 266 at 1 :62-67) Such depth birds do not satisfy the horizontal steering required by the term
`
`"streamer positioning devices" as used in the Bittleston patents. (D.I. 120 at 14)
`
`At most, Workman discloses only two devices in its discussion of lateral positions-
`
`Waters '278 and Owsley '027, neither of which were ever built, or would work in the invention
`
`claimed in the '520 patent. As Mr. Brune admitted, the Waters '278 device was described in
`
`7
`
`Ex. PGS 1027
`
`

`

`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 15 of 31
`
`distance between adjacent streamers. ld. at 3970:8-12 ("Q. But if the Court's construction, set
`
`and maintain spacing, requires the streamers to each be equidistant from one another, both in a
`
`minimum and a maximum setting, then Workman doesn't disclose that, agreed? A. That's a
`
`different case, yes."); see also id. at 3967:3-14. Significantly, Mr. Brune did not include any
`
`opinion that Workman infringed Claim 18 of the '520 patent in his expert report during
`
`discovery, nor did ION include such a theory in its Preliminary or Final Invalidity Contentions.
`
`(D.I. 308 at 10-11). Workman was only raised after ION's principal defenses failed as a matter
`
`oflaw.
`
`Because Workman fails to disclose all of the limitations of WesternGeco's claimed
`
`invention, ION's invalidity defense fails as a matter of law. Sanofi, 550 F.3d at 1082. And to
`
`the extent ION attempts to cobble together evidence of anticipation with cherry-picked snippets
`
`of testimony, ION fails to address the entire evidentiary record-including the portions discussed
`
`above-or to credit the jury's balancing of any conflicting evidence or evaluation of witness
`
`credibility.
`
`ION fails to apply the proper analysis in seeking a new trial post-verdict, under
`
`which ION's motion must fail.
`
`C. Workman Does Not Anticipate Claim 15 of the '607 Patent
`
`Claim 15 ofthe '607 patent provides:
`
`15. An array of seismic streamers towed by a towing vessel compnsmg:
`(a) a plurality of streamer positioning devices on or inline with each streamer;
`(b) a prediction unit adapted to predict positions of at least some of the streamer
`positioning devices; and (c) a control unit adapted to use the predicted positions to
`calculate desired changes in positions of one or more of the streamer positioning
`devices.
`
`(PTX 3). As Mr. Brune admitted, Claim 15 of the '607 patent requires lateral steering. (See,
`
`e.g., Trial Tr. at 3977:20-3978:3) And as explained above, Workman does not enable lateral
`
`steering or the claimed "streamer positioning devices" capable of steering a streamer
`
`11
`
`Ex. PGS 1027
`
`

`

`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 16 of 31
`
`horizontally. (See Argument § I.A, supra; D.l. 120 at 14) Workman does not teach and enable
`
`all of the claim limitations of Claim 15 of the '607 patent, and therefore cannot anticipate as a
`
`matter of law. Sanoji, 550 F.3d at 1082.
`
`Notably, Mr. Brune also did not discuss whether or not Workman met the separate claim
`
`limitations of a "prediction unit" and "control unit" in his testimony.
`
`(Trial Tr. at 3979:21-
`
`3980:13 ("I didn't talk about that in detail, no.")2
`
`; Id. at 3982:23-3983:3 ("Q. [Y]ou never looked
`
`at or analyzed in your presentation the specific pieces of Claim 15, did you? A. No, I did not.").
`
`If anything, ION's failure to offer any evidence or testimony that Workman discloses all of the
`
`limitations of Claim 15 warrants judgment as a matter of law against ION's defense. Sanoji, 550
`
`F.3d at 1082. ION was unable to present sufficient evidence for a jury to properly find in its
`
`favor. On ION's post-trial motion, where it seeks to reverse a jury verdict of validity, ION's
`
`shortcomings doom its motion to failure.
`
`D.
`
`The '895 Application Does Not Anticipate Claim 14 of the '038 Patent
`
`The '895 application is the original application that led to the Bittleston patents-in-suit.
`
`As discussed above, the Zajac '038 patent built on this foundation and invented a system to
`
`repeat surveys over time to produce 4D images.
`
`It was undisputed at trial that the '895
`
`application did not disclose the 4D inventions of the Zajac '038 patent. The jury's verdict to that
`
`2
`
`ION argues that because the Bittleston patents recite "parallel method and apparatus
`claims," Mr. Brune merely addressed the method claims and conclusorily imported those
`(D.I. 550 at 6 n.l) But for the '607 patent, the asserted
`analyses for the apparatus claims.
`apparatus Claim 15 recites a limitation-the prediction unit-absent from method Claim 1 and
`therefore never addressed by Mr. Brune. Additionally, Workman fails to disclose or enable the
`required "prediction unit" or "to use the predicted positions to calculate desired changes in
`positions." Although ION points to Workman's vague recitation of a "Kalman filter," no
`disclosure exists as to what type of Kalman filter is intended, what measurements it receives, or
`what, if any, prediction it performs. And even if a predicted position had been disclosed,
`Workman fails to teach how that prediction would be used to calculate positioning commands as
`required by Claim 15 of the '607 patent.
`
`12
`
`Ex. PGS 1027
`
`

`

`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 22 of 31
`
`failure of the prior art to disclose the claimed inventions, whether the prior art taught away from
`
`the claimed inventions and whether secondary considerations confirm the non-obviousness ofthe
`
`inventions-must be accepted based on the record evidence.
`
`B.
`
`Claim 15 of the '607 Patent is Not Obvious
`
`As discussed above, the Workman reference fails to enable any lateral steering, the
`
`claimed "streamer positioning device," "prediction unit," or using predicted positions to
`
`calculate steering commands. ION's attempts to ameliorate these shortcomings by meshing the
`
`Workman reference with the '636 application fail to prove invalidity, as found by both the PTO,
`
`which considered both pieces of art before allowing the '607 patent to issue, and the jury, which
`
`rejected ION's defense in its verdict. ION fails to explain how the combination could disclose
`
`and enable all of these limitations, how the differing approaches of Workman and Bittleston's
`
`'636 application would be harmonized, or why the secondary considerations of non-obviousness
`
`should have been ignored by the jury. Ample evidence supports the jury's verdict that Claim 15
`
`of the '607 patent is not rendered obvious over the combination of Workman and the '636
`
`application, and ION's motion is properly denied.
`
`Claim 15 of the '607 patent requires "a control unit adapted to use the predicted
`
`positions." Mr. Brune admitted that the '636 application does not disclose such a control unit.
`
`(Trial Tr. at 3982:16-22 ("Q. The '636 application that you rely on has localized control on each
`
`bird, correct? A. It has a local control unit on or near the individual birds. Q. That's different
`
`than what we see in [claim element] 15C, isn't it? A. Yeah, I believe so. That's -- this control
`
`unit is referring to what would be onboard."); id. at 3978:25-3979:4 ("Q. Sir, the '636 discussion
`
`that is in the actual '607 patent distinguishes the '607 work from '636 by describing that as
`
`having a local control system within the birds to adjust wing angles. Do you see that? A. Yes, I
`
`do."). Thus, neither the '636 application nor the Workman reference teaches the requisite
`
`18
`
`Ex. PGS 1027
`
`

`

`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 23 of 31
`
`prediction claimed in the '607 patent, and ION's obviousness defense fails as a matter of law, let
`
`alone was properly rejected by the jury on this record. Sanofi, 550 F.3d at 1 085-86; In re Kumar,
`
`418 F.3d at 1369.
`
`As Mr. Brune admitted, the approach of the '636 application specifically teaches away
`
`from the inventive control system of the Bittleston '607 patent, whose specification notes that
`
`"while this ['636] type of system allows for more automatic adjustment of the bird wing angles,
`
`the delay period and the relatively long cycle time between position measurements, prevents this
`
`type of control system from rapidly and efficiently controlling the horizontal position of the
`
`bird." (PTX 3 at 2:38-43; Trial Tr. at 3977:8-14; see also Trial Tr. at 3978:4-7 ("Q. And the
`
`'607 patent talks about the ['636 application] and says it works differently than the '607 patent,
`
`fair? A. Yes."). As distinguished in the '607 patent, the '636 application uses actual
`
`measurements rather than the position prediction taught and claimed by the '607 patent. To the
`
`extent that Workman's vague reference to a Kalman filter comprises a disclosure of"prediction,"
`
`it teaches away from the "actual measurement" approach of the '63 6 application, rendering
`
`ION's proposed combination improper. See Tee Air, Inc. v. Denso Mfg. Michigan Inc., 192 F.3d
`
`1353, 1360 (Fed. Cir. 1999) ("There is no suggestion to combine, however, if a reference teaches
`
`away from its combination with another source"). Workman offers no explanation why
`
`"prediction" would be beneficial over the "actual measurement" approach of the '636 patent, and
`
`no credible record evidence exists regarding how this tension between approaches would be
`
`resolved by a person of ordinary skill in the art, let alone resolved in a manner so as to arrive at
`
`the invention of the '607 patent.
`
`Moreover, no record evidence exists that a person of ordinary skill in the art would have
`
`"selected and combined [the] prior art elements [i.e., those in Workman and the '63 6 application]
`
`19
`
`Ex. PGS 1027
`
`