IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`PETROLEUM GEO-SERVICES INC.
`Petitioner
`v.
`
`WESTERNGECO LLC
`Patent Owner
`
`
`
`CASE IPR: Unassigned
`Patent 7,080,607 B2
`
`
`DECLARATION OF DR. BRIAN J. EVANS, PhD.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`PGS v. WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2061, pg. 1
`
`

`
`
`
`INTRODUCTION ............................................................................................... 2
`I.
`QUALIFICATIONS ........................................................................................ 3
`II.
`III. COMPENSATION AND RELATIONSHIP TO THE PARTIES .................. 8
`IV. LEGAL STANDARDS ................................................................................... 9
`A.
`Claim Construction ...................................................................................... 9
`B.
`Anticipation .................................................................................................. 9
`C.
`Obviousness ............................................................................................... 10
`D.
`Person of Ordinary Skill in the Art ............................................................ 10
`V.
`SUMMARY OF OPINION ........................................................................... 11
`VI. TECHNICAL BACKGROUND ................................................................... 12
`B.
`Streamer Steering Overview ...................................................................... 20
`C.
`The Workman Patent .................................................................................. 44
`VII. THE ’607 PATENT ....................................................................................... 46
`A.
`Brief Description of the Relevant File History .......................................... 46
`B.
`Relevant Time Frame for Analysis of the ’607 Patent .............................. 48
`C.
`The Specification of the ’607 Patent .......................................................... 48
`VIII. DETAILED OPINION ............................................................................... 50
`A.
`The Challenged Claims – Claims 1 and 15 of the ’607 Patent .................. 50
`B.
`Construction of Relevant Claim Terms ..................................................... 51
`C.
`Admitted Prior Art in the ’607 Patent ........................................................ 57
`D.
`Claims 1 and 15 are Anticipated by Workman .......................................... 59
`E.
` Claims 1 and 15 are Obvious over Workman ............................................ 74
`F.
` Claims 1 and 15 are Obvious over Workman in view of Elholm .............. 77
`G.
`Claims 1 and 15 are Obvious over Gikas in view of the ’636 PCT ........... 81
`H.
`Claims 1 and 15 are Obvious over Gikas in view of Elholm .................... 94
`
`
`
`
`
`1
`
`PGS v. WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2061, pg. 2
`
`

`
`
`
`I, Dr. Brian Evans, hereby state the following:
`
`
`I. INTRODUCTION
`1.
`I have been retained by Petroleum Geo-Services, Inc. (“PGS”) to
`
`provide technical assistance related to the filing of a Petition for Inter Partes
`
`Review of U.S. Patent No. 7,080,607 B2 (“the ’607 Patent”) (Ex. 1001). I am
`
`working as a private consultant on this matter and the opinions presented here are
`
`my own.
`
`2.
`
`I have been asked to prepare a written report, including comments
`
`related to whether Claims 1 and 15 of the ’607 Patent are unpatentable because
`
`they are anticipated or would have been obvious to one of ordinary skill in view of
`
`the prior art. I have reviewed the documents set forth in the attached Appendix of
`
`Exhibits below and relied on my decades of knowledge and experience in the field
`
`of seismic marine surveys (detailed in Section II) in reaching my opinions
`
`regarding validity. This report sets forth the bases and reasons for my opinions,
`
`including the materials and information relied upon in forming those opinions and
`
`conclusions.
`
`3.
`
`This report is based on information currently available to me. I reserve
`
`the right to continue my investigation and analysis, which may include a review of
`
`documents and information not yet produced. I further reserve the right to expand
`
`or otherwise modify my opinions and conclusions as my investigation and study
`
`
`
`2
`
`PGS v. WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2061, pg. 3
`
`

`
`
`
`123. Claim 1 is a method claim substantially identical to Claim 15 in that
`
`its limitations (a) through (c) are substantively equivalent to limitations (a) through
`
`(c) of Claim 1. These limitations of Claim 1 are therefore disclosed by Workman
`
`for the same reasons explained with respect to Claim 15. However, Claim 1 adds
`
`the limitation that the method “implement[s] at least some of the desired changes”
`
`in position.
`
`124. Workman meets this additional limitation of Claim 1, because it
`
`discloses that the desired position corrections calculated by the “streamer control
`
`processor” are “sent to the streamer device controller 16 for adjusting the streamer
`
`positioning devices 14 to reposition the streamer cables 13.” Ex. 1004 (Workman)
`
`at 5:27-29. It is clear from Workman’s disclosure that the “streamer cable
`
`controller 16” receives the repositioning signals because its function is to
`
`“control[] the streamer positioning devices 14.” Id. at 3:42-43. Thus, Workman
`
`implements the desired changes and meets all of the limitations of Claim 1.
`
`* * *
`
`125. I understand that in the ION District Court litigation, WesternGeco
`
`argued that Workman does not anticipate Claim 15 of the ‘607 Patent because
`
`Workman does not enable lateral steering. Initially, this argument is inapplicable
`
`to this proceeding because, under the broadest reasonable interpretation that
`
`governs here, a “streamer positioning device” need not be capable of lateral
`
`
`
`71
`
`PGS v. WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2061, pg. 4
`
`

`
`
`
`steering. See supra ¶ 96. In any event, I disagree with WesternGeco’s assertion
`
`that Workman did not disclose and enable lateral steering. In addition to
`
`Workman’s disclosure of lateral steering, the prior art—including, as I understand,
`
`prior art not considered in the prosecution or litigation—discloses and enables
`
`lateral steering. See, e.g., Ex. 1004 (Workman) at 1:45-58; Ex. 1007 (Hedberg) at
`
`1:71-2:11; Ex. 1008 (Weese) at 6:47-50; Ex. 1011 (Waters) at Abstract; Ex. 1010
`
`(Zachariadis) at 3:2-42; Ex. 1005 (Elholm) at 5:56-67; Ex. 1013 (‘636 PCT) at 2-3;
`
`Ex. 1042 (Ambs) at 2:56-63, 3:3-7; see supra ¶¶ 42-54, 61-65 (explaining these
`
`references).
`
`126. WesternGeco’s arguments and evidence from the district court
`
`litigation further demonstrate that lateral steering was long known and practiced
`
`before the priority date.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` Also, one of the named inventors of the ’607 Patent testified in
`
`the ION district court litigation that lateral steering was being done as early as
`
`World War II and that his patents, including the ’607 Patent, did not invent lateral
`
`
`
`72
`
`PGS v. WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2061, pg. 5
`
`

`
`
`
`steering. Ex. 1030 (Bittleston Tr.) at 509, 578. By the time of the priority date,
`
`lateral steering was long known and practiced.
`
`127. I also understand
`
`that
`
`in
`
`the ION District Court
`
`litigation,
`
`WesternGeco argued that Workman did not disclose the “predict” limitation of
`
`Claim 15 of the ‘607 Patent because “no disclosure exists as to what type of
`
`Kalman filter is intended, what measurements it receives, or what, if any,
`
`prediction it performs.” Ex. 1027 (WesternGeco’s Opposition to ION’s Motion for
`
`a New Trial on Invalidity)) at 12 n.2. This assertion is simply incorrect, as
`
`Workman disclosed that the network solution to the Kalman filter is computed “as
`
`disclosed by U.S. Pat. No. 5,353,223” (Norton), which describes a Kalman filter in
`
`detail and expressly refers to “predicted value[s]” in estimating the positions of
`
`points along streamers, as I have explained above. See Ex. 1029 (U.S. Patent No.
`
`5,353,223) (“Norton”) at Abstract; 5:5. As also discussed above in ¶¶ 72-77 supra,
`
`prior art references I understand were not cited in the ION district court litigation
`
`specifically discuss how a Kalman filter operates to predict positions of elements
`
`in a marine seismic array. See, e.g., Ex. 1041 (Gikas Thesis); Ex. 1006 (Gikas); Ex.
`
`1014 (Loweth); Ex. 1009 (Counselman). Moreover, as WesternGeco’s experts
`
`testified, every Kalman filter has a predictor. See supra ¶ 73. Based on the above
`
`disclosures, it would have been clear to a person of ordinary skill in the art at the
`
`
`
`73
`
`PGS v. WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2061, pg. 6
`
`

`
`
`
`priority date that the Kalman filter disclosed in Workman predicts positions as
`
`described in Claim 15.
`
`E. Claims 1 and 15 are Obvious Over Workman.
`128. Based on the foregoing, a person of ordinary skill would have
`
`understood that Workman teaches the limitations of Claims 1 and 15 of the ’607
`
`patent that “predict” the locations of streamer positioning devices and calculate
`
`desired changes to their positions. To the extent that Workman does not teach these
`
`limitations, a person of ordinary skill at the priority date would have been
`
`motivated to modify Workman so that it performed these “predicting” and
`
`“calculating” functions and thereby addressed the well known lag problem
`
`identified in the art. Indeed, Kalman filters, which had been disclosed repeatedly
`
`for use to predict positions in marine seismic surveys, would have been an obvious
`
`solution to this problem, even had they not been disclosed by Workman. See supra
`
`¶¶ 72-77; See, e.g., Ex. 1041 (Gikas Thesis); Ex.1006 (Gikas); Ex.1014(Loweth);
`
`Ex.1009 (Counselman); Ex. 1029 (Norton).
`
`129. To the extent that Workman is interpreted (wrongly, in my view) to
`
`predict the positions of the streamers (rather than the streamer positioning devices)
`
`and makes calculations on that basis, it would have been a trivial and obvious
`
`modification to practice the claim so that it “predicted” the locations of the various
`
`streamer positioning devices.
`
`
`
`74
`
`PGS v. WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2061, pg. 7
`
`

`
`
`
`130. A person of ordinary skill in the art would have been motivated to
`
`obtain real-time information about the location of streamer positioning devices
`
`(assuming for purposes of this argument that it is not taught already by Workman).
`
`As explained above, for the decades in which streamer steering had been known in
`
`the field, ascertaining the “predicted” positions of the streamer positioning devices
`
`was part of that process. See Ex. 1010 (Zachariadis); Ex. 1008 (Weese). For
`
`example, the Rouquette Patent, published in 1993, discloses that a bird
`
`“communicate[s]heading and depth data to the on-board controller,” and the on-
`
`board controller uses that information “in predicting the shape of the streamer.”
`
`Ex. 1032 (Rouquette) at 4:25-28. Before predicting the shape of a streamer, a
`
`global controller predicts the location of the birds and other defined points along
`
`the streamer array first—because the data used for predicting originates from
`
`positioning data derived from the streamer array, including the birds—and then
`
`extrapolates that data to determine the overall shape of the streamer. Simply put,
`
`in order to know where a streamer positioning device should be moved—the
`
`purpose of streamer steering—it is desirable to know where it is.
`
`131. There are additional reasons that a person of ordinary skill would have
`
`been motivated to make this trivial change. For example, by being able to
`
`accurately predict the shapes of streamer positioning devices so that they may be
`
`steered properly, a person of ordinary skill in the art would be able to more
`
`
`
`75
`
`PGS v. WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2061, pg. 8
`
`

`
`
`
`accurately reposition streamers to facilitate binning and the collection of seismic
`
`data. See supra ¶ 37. Moreover, such positioning data can be used to determine
`
`those bins that were inadequately filled with common mid-point traces during a
`
`survey line, facilitating later in-fill operations in order to optimize survey
`
`operations.
`
`132. With respect to the “calculating” step, a person of ordinary skill in the
`
`art would have also sought to use the predicted positions of streamer positioning
`
`devices to calculate desired changes in their positions for the same reasons. As
`
`discussed above, moreover, the streamer control processor 40 of Workman, as
`
`shown in Figure 3, takes “signals from 10” (i.e., the “predicted” positions of the
`
`streamers), compares those signals to threshold parameters (for example,
`
`separation distance), and calculates position corrections when necessary. To the
`
`extent it did not do so already, it would have been trivial for a person of ordinary
`
`skill to modify this streamer control processor to calculate the same position
`
`corrections with respect
`
`to streamer positioning devices. Moreover, both
`
`“predicting” positions of streamer positioning devices and calculating their desired
`
`“position corrections” would have been an obvious solution to the known problem,
`
`as disclosed in Workman and other patents described above, of steering streamers
`
`to maintain their shape. Thus, Claims 1 and 15 of the ’607 patent would have been
`
`obvious in light of Workman.
`
`
`
`76
`
`PGS v. WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2061, pg. 9
`
`

`
`
`
`F. Claims 1 and 15 are Obvious over Workman in view of Elholm
`133. As discussed above, Workman meets every limitation of Claims 1 and
`
`15 of the ’607 patent. That Workman makes “predictions” is made clear by the
`
`Kalman filter and its disclosure of “predict[ing] the shape of streamer” language,
`
`and Workman contains a control system that calculates desired changes in
`
`positions of the streamers based on the predicted data. There is no doubt that
`
`Workman, at a minimum, discloses those limitations with respect to streamers
`
`themselves. And, as discussed above, such “predictions” and “calculations” would
`
`be predictions and calculations with respect to streamer positioning devices as
`
`well. See supra ¶ 118. Moreover, even if Workman did not anticipate the claim,
`
`such “predictions” and “calculations” would have been obvious in view of
`
`Workman alone given the motivations and disclosures given above. See supra
`
`¶¶128-32.
`
`134. To the extent that one concludes that Workman alone does not render
`
`Claims 1 and 15 of the ’607 patent anticipated or obvious, however, it would have
`
`also been obvious to a person of ordinary skill to modify Workman to perform the
`
`required functionality in view of U.S. Patent 5,532,975 (Ex. 1005) (“Elholm”).
`
`Elholm was filed on February 8, 1994 and published July 2, 1996. The
`
`combination of Workman and Elholm was not presented at trial in the ION
`
`litigation.
`
`
`
`77
`
`PGS v. WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2061, pg. 10
`
`

`
`
`
`135. Elholm discloses the motivation for “predicting” and “calculating” the
`
`positions of streamer positioning devices explicitly. Specifically, Elholm discloses
`
`that it contains a “computer programme” that sends control signals to its streamer
`
`positioning devices6 to guide them to a “correct position.” Elholm specifically
`
`discloses that:
`
`On the basis of given parameters concerning depth,
`pressure, speed, separation out to the side, etc., a
`computer programme will be able to calculate which
`control signals should be transmitted to the vessel in
`order to guide [the vessel] into the correct position. The
`calculation of the optimum position for the device can
`also be performed internally in the vessel. Ex. 1005
`(Elholm) at 3:37-41.
`
`
`6 Elholm describes the “streamer positioning device” disclosed in his patent as a
`
`“positioning unit or vessel, which comprises a body part to which are attached at
`
`least two fairly large wings with a balance rudder or a large wing called a main
`
`wing.” Ex. 1005 (Elholm) at 2:61-63. The disclosure explains that this vessel is
`
`“able to position the . . . [streamer] cables.” Id. at 3:31-32. Therefore, the
`
`“positioning unit or vessel” described by Elholm is a “streamer positioning device”
`
`according to the broadest reasonable interpretation of that claim term. It is
`
`different from the “vessel” that refers to the ship used in the seismic survey.
`
`
`
`78
`
`PGS v. WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2061, pg. 11
`
`

`
`
`
`
`This disclosure makes clear that, when repositioning cables, it is important to know
`
`the desired position of the streamer positioning device specifically, as opposed to
`
`the cables generally. Accordingly, a person of ordinary skill in the art would have
`
`been motivated to ascertain the “predicted” position of such streamer positioning
`
`devices. Indeed, Elholm refers to calculations of the “distances between the units
`
`in the towing equipment,” which—like the “predictions” of the ’607 patent—
`
`estimates the locations of the “positioning units” or “vessels.” Id. at 4:37-38.
`
`136. Beyond these disclosures, a person of ordinary skill in the art would
`
`have been motivated to obtain real-time information about the location of streamer
`
`positions, as explained above with respect to Workman. As noted above, for the
`
`decades in which streamer steering had been known in the field, ascertaining the
`
`position of the streamer positioning devices was part of that process. See supra ¶¶
`
`66-77. Knowledge of the precise position of streamer positioning devices would
`
`provide a person of ordinary skill with detailed information with regard to the
`
`shapes and positions of the larger streamers, facilitating the desired positioning of
`
`the streamer positioning devices and the cables to which they are attached. See id.
`
`Repositioning of the streamer positioning devices, as a matter of simple science
`
`and logic, necessarily will be more precise if the locations of the streamer
`
`positioning devices are known.
`
`
`
`79
`
`PGS v. WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2061, pg. 12
`
`

`
`
`
`137. A person of ordinary skill in the art who had knowledge of Workman
`
`and Elholm, therefore, would have considered it obvious to combine the references
`
`to practice the invention of Claims 1 and 15 of the ’607 patent. That is, even if
`
`Workman did not disclose that the positions of the streamer positioning devices
`
`themselves could have been predicted and desired changes calculated, a person of
`
`ordinary skill would have seen the value of including such a feature in Workman.
`
`G. Claims 1 and 15 are Obvious over Gikas (Hydrographic Journal
`Article) in view of the ’636 PCT
`138. Claims 1 and 15 are also obvious over Gikas in view of the ’636 PCT.
`
`The Gikas reference, which is published in the July 1995 edition of The
`
`Hydrographic Journal, is entitled “A Rigorous and Integrated Approach to
`
`Hydrophone and Source Positioning during Multi-Streamer Offshore Seismic
`
`Exploration” (Ex. 1006). This reference was neither before the Examiner nor
`
`before the court in the ION litigation. Designed to address the well known problem
`
`of determining the positions of source guns, hydrophones, and other streamer array
`
`elements, Gikas discloses a Kalman filter solution that predicts the positions of
`
`elements at every point along a streamer.
`
`139. Gikas disclosed his Kalman filter as an improvement over the least
`
`squares method that had been used in the prior art. As discussed above, “least
`
`squares” was a different method that had been used to estimate the positions of
`
`points on a streamer. See supra ¶¶ 70-72. Recognizing that, as of 1995, some in the
`
`
`
`80
`
`PGS v. WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2061, pg. 13
`
`

`
`
`
`obvious, Claim 1 would have been obvious for substantially the same reasons as
`
`Claim 15.
`
`* * *
`
`168. I understand that, in signing this Declaration, the Declaration will be
`
`used as evidence in an inter partes dispute before the Patent Trial and Appeal
`
`Board concerning the validity of the ’607 patent. I understand that I may be subject
`
`to examination or cross-examination in the proceeding. I will appear for such
`
`examination or cross-examination at a time and location convenient for myself and
`
`the parties.
`
`169. I hereby declare that all statements made herein of my own
`
`knowledge are true, and that all statements made on information and belief are
`
`believed to be true and that such statements are made with the knowledge that
`
`willful false statements and the like are punishable by fine or imprisonment, or
`
`both, under Section 1001 of Title 18 of the United States Code.
`
`Respectfully Submitted,
`
`Dr. Brian J. Evans
`
`
`
`Date: April 17, 2014
`
`
`
`100
`
`PGS v. WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2061, pg. 14