BOULT WADE TI-INNANT
`
`EUROPEAN PATENT OFFICE (MUNICH)
`80298 MUNICH
`
`Germany
`
`BY ELECTRONIC FILING ONLY
`
`18 August, 2014
`
`Dear Sir(s),
`
`European Patent and
`Trade Mark Attorneys
`Chartered Patent Attorneys
`
`Verulam Gardens
`70 Gray‘s Inn Road
`London WCIX 8I3T
`Unitea Kingdem
`
`I4£3I63pI"iOI”IE’
`+44 (0)20 7430 7500
`facsimile
`+44 (0)20 7430 7600
`email bouIt@hoi.iIt.c0rri
`website www.b<>i,.iI‘r.c<)m
`
`Offices also in Reading!
`O><tord and Cambridge
`
`Regulated by IPReg
`
`European Patent Number EP1850151 (Application number 07113031.4)
`
`of WesternGeco Seismic Holdings Limited
`
`and Services Pétroliers Schlumberger
`Our Ref: AJF/JAS/P124484EP00
`
`In preparation for Oral Proceedings, we tile herewith the Patentees’ submissions, along with a
`
`new Main Request and Auxiliary Requests 1 to 4 (both clean and “tracked changes” versions).
`
`Yours faithfully,
`
`SHORT; James
`
`BOULT WADE TENNANT, Association Number 505
`
`5305285; JAS; EMS
`
`PGS Exhibit 1104, pg. 1
`
`Partners
`Claire Baldock
`Tessa Bucks
`Anthony Péuckrose
`Nick Mcteish
`John Wallace‘
`Adrian Hayes
`i\/iattyn Draper
`
`Aiex R015?
`Rohan Setiia
`éonethan Palmer
`Nina White
`Emma Pitcher‘
`Feiicity Hide“
`I\/Iatthew Spencer
`
`Neil Thornsori
`Catherine WoIie”‘
`¥\/iicheiie Pratt
`Jason Peiiy
`Sarah I\/Ierritield
`Niqe! 'i"ui;I<er
`Daryl Penny
`
`Paul Hicks
`Howard Sand;
`10 Peliy
`Simon Kahn
`Danie? Weston
`Charlotte Du§y*
`James Short
`
`PGS V. Weste1‘nGec0 (IPR2014-00688)
`Attorneys
`Sarah Gibson
`Sara Len0*
`Josephine Taibot
`Ponsonby
`Heather PO$’1SIOi’d
`Susi Fish
`Laura Gariick
`
`Adam Capevvell
`Malcoém Elkin
`Lisa Oi’mroCi*
`Rachel Cioni'Gy'”
`Phiiip Hone:
`Jenniier O’Fai'ieII
`Nicholas \/VI{I(§OWS(>rI Edward i\/Iorac:
`OII\/€I’ Rutt
`Eoanria Peak
`Jemma Jacobs
`Aiiusha Ai'ima5a§am*
`A/IarI< Smith
`I\/iatthizw Ridtey
`
`riizede Mark Attorney
`
`jh‘-301
`
`PGS Exhibit 1104, pg. 1
`PGS v. WesternGeco (IPR2014-00688)
`
`

`
`P124484EP00
`
`European Patent Number EP1850151 of WesternGeco Seismic Holdings Limited and
`
`Services Pétroliers Schlumberger and Opposition thereto by ION Geophysical
`
`Corporation.
`
`OBSERVATIONS OF THE PATENTEES
`
`1. Introduction
`
`1.1
`
`In response to the Preliminary Opinion accompanying the Summons to Oral
`
`Proceedings, we file herewith a new Main Request, along with Auxiliary Requests 1 to 4
`
`to be considered in turn in the event that the Opposition Division decide not to maintain
`
`the Main Request.
`
`1.2
`
`Whilst four Auxiliary Requests are filed, it will be noted that Auxiliary Request 1
`
`represents a fallback positions in case the Opposition Division should consider the Main
`
`request to include added subject—matter, while Auxiliary Requests 2 to 4 represent
`
`fallback positions in case the Opposition Division should consider there to be a lack of
`
`inventive step in the Main Request or Auxiliary Request 1. As will be appreciated,
`
`depending on the Opposition Division’s conclusion regarding added subject—matter, it is
`
`likely that only one of Auxiliary Requests 2 or 3 will require consideration should any
`
`inventive step objection be maintained.
`
`2. Main Reguest
`
`2.1
`
`In the Main Request, the claims of the Patent have been amended based on paragraph
`
`[0016] of the “A” specification to specify that the method uses a control system distributed
`
`between a global control system located on or near a seismic survey vessel and a local
`
`control system located on each streamer positioning device. Commensurate
`
`amendments have been effected in the independent apparatus claim.
`
`2.2
`
`In addition, feature (a) has been amended to specify that “each” of the streamer
`
`positioning devices have a wing. This amendment finds basis in the “A” specification in
`
`paragraph [0015], which discloses the plurality of streamer positioning devices, and in
`
`paragraph [0023], which discloses the structure of a bird suitable for use as each
`
`streamer positioning device.
`
`2.3
`
`In addition, feature (0) has been amended to specify that the local control system adjusts
`
`the angle of the wing with a wing motor. This amendment finds basis in paragraph [0025]
`
`of the “A” specification.
`
`2.4
`
`Commensurate amendments have been effected in independent claim 15.
`
`3. Auxiliary Requests
`
`1
`
`PGS Exhibit 1104, pg. 2
`
`PGS V. Weste1‘nGec0 (IPR2014-00688)
`
`PGS Exhibit 1104, pg. 2
`PGS v. WesternGeco (IPR2014-00688)
`
`

`
`3.1
`
`In Auxiliary Request 1, instead of inserting the text from paragraph [0016] as in the Main
`
`request, the claims have been amended to specify that the method is for controlling
`
`streamer positioning devices using a distributed processing control architecture and
`
`behaviour—predictive model based control logic. Basis for this amendment can be found
`
`in paragraph [0017]. Commensurate amendments have been effected in the independent
`
`apparatus claim.
`
`3.2
`
`Auxiliary Request 2 is based on the Main Request. Additionally, the subject—matter of
`
`granted claim 2 has been introduced into claim 1. Similarly, the subject—matter of granted
`
`claim 16 has been incorporated into the independent apparatus claim, now renumbered
`
`as independent claim 14.
`
`3.3
`
`Auxiliary Request 3 is based on Auxiliary Request 1. Additionally, the subject—matter of
`
`granted claim 2 has been introduced into claim 1. Similarly, the subject—matter of granted
`
`claim 16 has been incorporated into the independent apparatus claim, now renumbered
`
`as independent claim 14.
`
`3.4
`
`In Auxiliary Request 4, the claims of Auxiliary Request 1 have been amended to specify
`
`that the control logic is part of the global control system. Basis for this amendment can be
`
`found in paragraph [0019] of the “A” specification. Whilst it is noted that [0019] refers to
`
`“a dynamic model” rather than “behaviour—predictive mode|—based control logic’’, it is
`
`noted that the model of paragraph [0017] is the only dynamic model described in the
`
`application and thus must be that referred to in paragraph [0019].
`
`3.5
`
`Indeed, in this regard, it is noted that paragraph [0020] also describes predictor software
`
`relating to the behaviour of the complete streamer array being located on the global
`
`control system. That is, behaviour prediction is carried out by the global control system.
`
`4. Article 100]c] EPC
`
`4.1
`
`In the Preliminary Opinion accompanying the Summons, the Opposition Division followed
`
`four of the Opponent’s objections in relation to claim 1, and followed equivalent
`
`objections in respect of claim 15. Three of these objections are dealt with by
`
`amendments in the Main Request, as follows.
`
`4.2
`
`In Section 3.2.1.4, the Opposition Division considers that there is added subject—matter in
`
`the recitation of “at least one of the streamer positioning devices having a wing”. In the
`
`Main Request, claim 1 has been amended to specify that E of the streamer
`
`positioning devices has a wing. Thus, the objection had been overcome. An equivalent
`
`amendment has been made in claim 15, thus overcoming the objection of Section
`3.2.2.5.
`
`4.3
`
`In Section 3.2.1.7, the Opposition Division considers that there is added subject—matter in
`
`the omission of the feature that it is the angle of the wing that is controlled by the local
`
`control system. In the Main Request, claim 1 has been amended to specify that the local
`
`control system adjusts the angle of the wing. Thus, the objection had been overcome. An
`
`equivalent amendment has been made in claim 15, thus overcoming the objection of
`Section 3.2.2.8.
`
`2
`
`PGS Exhibit 1104, pg. 3
`
`PGS V. Weste1‘nGeco (IPR2014-00688)
`
`PGS Exhibit 1104, pg. 3
`PGS v. WesternGeco (IPR2014-00688)
`
`

`
`4.4
`
`In Section 3.2.1.9, the Opposition Division considers that there is added subject—matter in
`
`the omission of the feature that the angle of the wing is actuated using a wing motor. In
`
`the Main Request, claim 1 has been amended to specify that the angle of the wing is
`
`adjusted with a wing motor. Thus, the objection had been overcome. An equivalent
`
`amendment has been made in claim 15, thus overcoming the objection of Section
`3.2.2.10.
`
`4.5
`
`In Section 3.2.1.5, the Opposition Division objects that the global control system is only
`
`disclosed in combination with a “distributed processing control architecture and
`
`behaviour—predictive model based control logic to properly control the streamer
`
`positioning devices”, suggesting that this feature should be incorporated into the
`
`independent claims. In this regard, the Patentees respectfully disagree for the following
`reasons.
`
`4.6
`
`The inventive feature of claim 1 to which the objection is directed is introduced, not in the
`
`final paragraph on page 6 (to which the Opposition Division refers), but in the preceding
`
`paragraph. This paragraph provides basis for distributing the control system between the
`
`global and local control systems. It is this passage which gives basis for granted claim 1.
`
`Thus, it is not correct that the global control system is disclosed fir in combination with
`
`the feature of “distributed processing control architecture and behaviour—predictive model
`
`based control logic to properly control the streamer positioning devices”; it is described
`
`separately from this feature when it is first introduced.
`
`4.7
`
`The question is therefore whether the Skilled Reader would find anything in the final
`
`paragraph on page 6 to suggest that such a feature is essential. In this regard, it is noted
`
`that the Skilled Reader would not seek to answer this question by analysing the passage
`
`in a linguistic way, but would instead look to the inherent technical and functional
`
`interrelationship between the claimed feature of distributed global and local control
`
`systems and the control architecture and model.
`
`4.8
`
`In this regard, there are two distinct and separate aspects to the omitted feature: (1) “a
`
`distributed processing control architecture”; and (2) “a behaviour—predictive model based
`
`control logic”. The Patentee has introduced the first of these into the independent claims.
`
`Furthermore, the hardware that provides the recited control systems is considered to be
`
`implicitly “processing control architecture”.
`
`4.9
`
`The second feature, a behaviour—predictive mode|—based control logic, is not only
`
`presented separately in a linguistic sense, but has no technical or function relationship
`
`with the distribution of processing between global and local control systems. Irrespective
`
`of whether control logic is used or whether it is implemented with such a model, the
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`separation of global and local control systems provides an entirely separate single
`
`general inventive concept.
`
`4.10
`
`It is inferred that the Opposition Division may have considered the second feature to be
`
`essential because the final paragraph on page 6 includes the phrases “the inventive
`
`control system” and “to properly control”. However, the Patentee submits that this form of
`
`linguistic analysis unfairly represents what is technically disclosed to the Skilled Person.
`
`That is, it is entirely incorrect to infer from that sentence that the Skilled Person would
`
`consider that it is not possible to “properly control the streamer positioning devices”
`
`3
`
`PGS Exhibit 1104, pg. 4
`
`PGS V. Weste1‘nGeco (IPR2014-00688)
`
`PGS Exhibit 1104, pg. 4
`PGS v. WesternGeco (IPR2014-00688)
`
`

`
`without a behaviour—predictive model; there is no technical reason why this would be the
`case.
`
`4.11
`
`Indeed, the first sentence of the second paragraph on page 7 explicitly states that a
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`dynamic model is merely preferable. This is a positive disclosure that a dynamic model,
`
`whether behaviour—predictive or otherwise, is not essential.
`
`4.12
`
`In any event, if a linguistic approach is to be used to construe the last sentence on page
`
`6, it can be seen even then that there is no suggestion that behaviour—predictive model
`
`based control logic is essential. The sentence presents one way in which streamer
`
`positioning devices may be “properly controlled”, and does not imply that no other way is
`
`possible. Whilst the sentence describes one way that E define an invention, this does
`
`not mean that is the mg invention disclosed in the description as originally filed.
`
`4.13
`
`It is thus submitted that the claims are allowable under Article 123(2) EPC.
`
`5. Article 100 (a) EPC — Novelty
`
`US 5200930 (E1)
`
`5.1
`
`The Patentee notes that the Opposition is of the preliminary opinion that E1 discloses all
`
`of the features of claim 1. This is respectfully disputed for the following reasons.
`
`(i) Lateral position
`
`5.2
`
`E1 fails to disclose birds that can control lateral position. Indeed, the birds are referred to
`
`as cab|e—|eve||ing birds (column 4, line 8 and 9). There is no basis for deriving any further
`
`functionality of the birds.
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`5.3
`
`The preliminary opinion suggests that there is imp/icitdisclosure of lateral control in
`
`column 4, lines 45 to 47, because the wings are controlled to control the depth of the
`
`bird. From this it has been understood that the wings must implicitly also control lateral
`
`position. The Opposition Division is reminded that an objection of implicit disclosure can
`
`only be raised “where there can be no reasonable doubt as to the practical effect of the
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`prior teaching” (GL—G—Vl—6). That is certainly not the case here, where every indication is
`
`contrary to the inferred disclosure for the following reasons.
`
`5.4
`
`The disclosure in column 4, on lines 22 to 25 explicitly states that the bird is used to
`
`control the depth of the streamer. Furthermore, lines 45 to 47 of column 4 explicitly state
`
`that the control signals control the depth of the bird.
`
`5.5
`
`As explained in paragraph [0005] of the Patent, prior art streamer control devices are
`
`only intended for, and only capable of, controlling depth. Lateral position was not
`
`controlled; the fonrvard motion of the towing vessel produced a tension in the streamer to
`
`pull it into line and this was considered sufficient at that time. Depth, on the other hand,
`
`required more accurate control owing to the problem of surface reflection noise and it
`
`was this that motivated the development of cab|e—levelling birds.
`
`4
`
`PGS Exhibit 1104, pg. 5
`
`PGS V. Weste1‘nGeco (IPR2014-00688)
`
`PGS Exhibit 1104, pg. 5
`PGS v. WesternGeco (IPR2014-00688)
`
`

`
`5.6
`
`Reference has also been made to column 3, lines 28 to 31, which discloses the scanning
`
`of streamer devices for cab|e—positioning data. The Patentee infers the Opposition
`
`Division has misunderstood the meaning of “cab|e—positioning data” in this passage. The
`
`cab|e—positioning data is received by the central controller so that it can know where each
`
`sensor was during each seismic shot interval. This disclosure amounts to position
`
`monitoring only, and does not disclose any form of positional control. This is supported
`
`by lines 25 to 28 of column 4, which describe the output of heading and depth data (not
`
`position data) from the birds for use in predicting (n_ot controlling) the shape of the
`streamer.
`
`5.7
`
`Accordingly, it is submitted that E1 fails to disclose the control of lateral position, as
`
`required by claim 1.
`
`(ii) Local control system
`
`5.8
`
`The preliminary opinion suggests that there is a disclosure of a local control system in
`
`column 4, lines 45 to 47, which state “control signals are received by the bird electronics
`
`50 to control the wings of the bird”.
`
`5.9
`
`However, bird electronics 50 is simply the actuating means for setting the bird wing angle
`
`and the sensing means for determining the bird wing angle. This can be seen from
`column 4, lines 45 to 47, and also lines 47 to 51, which disclose the bird electronics
`
`sending the wing angle to the controller on request. Thus, the bird electronics sends the
`
`controller the angle of the wing and the controller uses this angle and the depth data (see
`
`column 4, line 26) to determine a control signal for commanding the bird electronics 50 to
`
`set a particular wing angle.
`
`5.10
`
`Not only is there is no disclosure of the bird electronics determining an updated bird wing
`
`angle, but there is also implicit disclosure that the complete control system is
`
`implemented by the controller.
`
`5.11
`
`Accordingly, it is submitted that E1 fails to disclose a local control system, as required by
`claim 1.
`
`(iii) Location information
`
`5.12
`
`The preliminary opinion suggests that there is a disclosure of location information being
`
`transmitted from the controller to the bird. However, it is explicitly stated that the control
`
`signals received by the bird electronics are for controlling the wings of the bird, and this
`
`“thereby” achieves a desired depth (column 4, lines 45 to 47). This clearly means that the
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`“outbound commands” discussed in column 3, line 40, are control signals identifying the
`
`wing angle to be actuated and n_ot identifying the depth to be achieved.
`
`5.13
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`In other words, the depth is the result of setting the wing angle, and it is the wing angle
`
`that is commanded by the controller. There is no disclosure that the controller sends any
`outbound commands in the form of location information.
`
`5.14
`
`For completeness, it is noted that the claim requires location information to be sent from
`
`the global control system to the local control system. Thus, the communication of depth
`
`5
`
`PGS Exhibit 1104, pg. 6
`
`PGS V. Weste1‘nGeco (IPR2014-00688)
`
`PGS Exhibit 1104, pg. 6
`PGS v. WesternGeco (IPR2014-00688)
`
`

`
`data discussed on lines 25 to 28 of column 4 does not meet the requirement of the
`claims.
`
`5.15
`
`Accordingly, it is submitted that E1 fails to disclose a location information used in the
`
`manner required by claim 1.
`
`Summary
`
`5.16
`
`In summary, the Patentee submits that claim 1
`
`is novel over E1 by at least the following
`
`features: (i) the control of the e position of a streamer positioning device; (ii) a E
`
`control system on a streamer positioning device; and (iii) the transmission of location
`
`information from a global control system to a local control system.
`
`5.17
`
`It is further submitted that independent claim 15 is also novel over E1 for at least these
`reasons.
`
`6. Article 100(a) EPC — Inventive Step
`
`6.1
`
`In the preliminary opinion, inventive step is considered starting from document E2 as the
`
`closest prior art. The Patentee agrees that this document is the most appropriate starting
`
`point. (Contrary to the opinion given in paragraph 3.5.3, E4 is less relevant, since it
`
`discloses only a single streamer positioning device on each streamer).
`
`6.2
`
`The Patentee also agrees that E2 fails to disclose any global control system (indeed, this
`
`was acknowledged by the Opponent in the inventive step attack in the Notice of
`
`Opposition). In E2, each streamer is simply provided with a desired position.
`
`6.3
`
`For completeness, it is noted that since E2 fails to disclose a global control system, it
`
`must follow that the transmission of location information from a global control system to a
`
`local control system is also not disclosed.
`
`6.4
`
`The inventive step analysis given in paragraph 3.5.1 of the preliminary opinion makes
`
`reference to all four prior art documents. However, it is assumed that this is an error and
`
`that a prob|em—and—so|ution analysis combining E2 (as closest prior art) with E3 as a
`
`secondary document was intended.
`
`6.5
`
`The Patentees respectfully disagree with the Opposition Division’s analysis of the prior
`
`art, because it overlooks a feature of the independent claims that is fundamental to the
`
`invention and not known in the art — the distribution of a control system between global
`
`and local components. None of the prior art documents discloses a distributed control
`
`system. In every prior art document, a complete control system is provided, and is
`
`located in a single location.
`
`6.6
`
`When considering document E2, the Skilled Person learns of a complete control system
`
`— control circuit 34 takes sensor readings as inputs and provides motor commands as
`
`outputs. Thus, the Skilled Person is taught to locate a complete control system on a bird
`10.
`
`6
`
`PGS Exhibit 1104, pg. 7
`
`PGS V. Weste1‘nGeco (IPR2014-00688)
`
`PGS Exhibit 1104, pg. 7
`PGS v. WesternGeco (IPR2014-00688)
`
`

`
`6.7
`
`Similarly, when considering document E3, the Skilled Person again learns of a complete
`
`control system — a marine seismic data acquisition system 5 on a vessel 11 includes the
`
`streamer device controller 16. Thus, the Skilled Person is taught to locate a complete
`
`control system within a marine seismic data acquisition system 5 on a vessel 11.
`
`6.8
`
`In neither case is there disclosed a global or a local control system in the sense claimed.
`
`In both cases, there is simply disclosed unitary and complete control systems. The
`
`Skilled Person can only consider the prior art control systems as alternatives, since they
`
`are both functionally complete; either the control system is located on the vessel, or the
`
`control system is located on the bird.
`
`6.9
`
`The non-inventive Skilled Person is not provided with any hint to distribute the
`
`functionality of the control system of either document to the alternative location — this
`
`would go against the conventional approach of both prior art documents to provide a
`
`unitary, complete control system.
`
`6.10
`
`It is only with knowledge of the Patent that the Skilled Person is told to distribute the
`
`functionality in the manner claimed. Thus, the Opponent’s inventive step attack
`
`impermissibly applies hindsight. Without such guidance, he would find no motivation to
`arrive at the claimed invention.
`
`6.11
`
`The independent claims involve an inventive step.
`
`7. Prior art
`
`7.1.
`
`The Patentee has already noted that the Opponent has relied upon only documents E1 to
`
`E4 in its objections but has cited as many as eleven turther “supporting documents”, and
`
`it is noted that the Opponent has not provided any further objections based on
`documents E5 to E15.
`
`7.2.
`
`It is thought that the Opponent has not substantiated any further objections because
`
`there are not any, and it is expected that the Opponent will not raise new objections
`
`based upon E5 to E15 at the Oral Proceedings.
`
`8. Conclusion
`
`8.1
`
`The Patentees request maintenance of the Patent in the form of the amended Main
`
`Request.
`
`8.2
`
`The request for Oral proceedings is maintained in the event that the Opposition Division
`
`decides not to maintain the Patent as amended in the Main Request.
`
`8.3
`
`In the event that the Opponent’s Representatives wish to make submissions at any
`
`appointed Oral Proceedings in a language other than English,
`
`then the Patentee
`
`requests the provision of simultaneous translation into English of
`
`the Opponent’s
`
`Representative’s submissions.
`
`7
`
`PGS Exhibit 1104, pg. 8
`
`PGS V. Weste1‘nGeco (IPR2014-00688)
`
`PGS Exhibit 1104, pg. 8
`PGS v. WesternGeco (IPR2014-00688)
`
`

`
`SHORT; James
`
`Authorised Representative of the Patentees
`BOU LT WADE TENNANT
`
`Association No. 505
`
`5117502; JAS; JAS
`
`8
`
`PGS Exhibit 1104, pg. 9
`
`PGS V. Weste1‘nGec0 (IPR2014-00688)
`
`PGS Exhibit 1104, pg. 9
`PGS v. WesternGeco (IPR2014-00688)