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`Ex. PGS 1023
`EX. PGS 1023
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`Case 4:09-cv-01827 Document 345 Filed in TXSD on 06/11/12 Page 1 of 95
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`WESTERNGECO L.L.C.,
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` Plaintiff,
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`v.
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`ION GEOPHYSICAL CORPORATION,
`et al.,
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` Defendants.
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`§
`§
`§
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`§
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`§
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`§
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`CASE NO. 4:09-CV-1827
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`MEMORANDUM AND ORDER
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` number of motions for summary judgment are pending before the Court.
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` A
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`Broadly, those motions can be divided into two categories: (1) motions addressing patent
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`invalidity; and (2) motions addressing patent infringement. In this Memorandum and
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`Order, the Court considers first the invalidity motions, including Defendants’ Motion for
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`Summary Judgment of Patent Invalidity of the Bittleston Patents (Doc. No. 273), and
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`Defendants’ Motion for Summary Judgment of Patent Invalidity of the Zajac Patent
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`(Doc. No. 270). The Court also considers, in examining invalidity, the portion of
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`Plaintiff’s Motion for Summary Judgment of Willful Infringement of the ‘520 Patent
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`(Doc. No. 276) in which Plaintiff moves for summary judgment on patent validity. After
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`considering these three motions, all responses thereto, and the applicable law, the Court
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`concludes that each motion must be denied.
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`The second category of motions at issue, those that address patent infringement,
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`includes Defendants’ Motion for Summary Judgment of Non-Infringement of the
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`1
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`Ex. PGS 1023
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`Case 4:09-cv-01827 Document 345 Filed in TXSD on 06/11/12 Page 60 of 95
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`In urging their interpretation of claim 18, Defendants compare claim 18 to claim
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`1, which requires “a control system configured to operate in one or more control modes
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`selected from a feather angle mode, a turn control mode, and a streamer separation
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`mode.” (‘520 patent at claim 1 (emphasis added).) Defendants acknowledge that the
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`language in claim 1 “makes clear that the control system need only be configured to
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`operate in one control mode.” (Doc. No. 298 at 9.) However, they suggest that because
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`the “in one or more control modes” language is absent from claim 18, claim 18 requires
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`something different from claim 1—it requires the control system to be configured to
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`operate in all of the listed control modes.
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`Defendants are correct that, “[w]hen different words or phrases are used in
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`separate claims, a difference in meaning is presumed.” Nystrom v. TREX Co., Inc., 424
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`F.3d 1136, 1143 (Fed. Cir. 2005) (citing Tandon Corp. v. United States Int’l Trade
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`Comm’n, 831 F.2d 1017, 1023 (Fed. Cir. 1987)). However, “[d]ifferent terms or phrases
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`in separate claims may be construed to cover the same subject matter where the written
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`description and prosecution history indicate that such a reading of the terms or phrases is
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`proper.” Id. (citing Tandon, 831 F.2d at 1023-24). Here, the slightly different wording of
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`the two claims, when read in the context of the specification and in light of general
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`principles of claim construction, does not indicate that a difference in meaning was
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`intended.
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`First, it is important to note the context in which the ‘520 patent’s 34 claims are
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`provided. The claims are divided into 17 method claims and 17 apparatus claims. Each
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`method claim has a corresponding apparatus claim. Claim 1 is the method claim that
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`corresponds to the apparatus in claim 18; in examining these parallel claims, it seems
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`60
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`Ex. PGS 1023
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`Case 4:09-cv-01827 Document 345 Filed in TXSD on 06/11/12 Page 61 of 95
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`clear that the drafters intended them to require the same thing, that is, that the control
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`system could be configured to operate in at least one of the enumerated modes.
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`More importantly, this interpretation of the claim language is supported by
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`established principles of claim construction. The Federal Circuit has made clear that the
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`use of the indefinite article “a”, as used in claim 18 (“a control system configured to use a
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`control mode selected from”), denotes “one or more.” See Crystal Semiconductor Corp.
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`v. TriTech Microelectronics Int’l, Inc., 246 F.3d 1336, 1347 (Fed. Cir. 2001) (citing
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`cases). Although Crystal and the cases cited therein consider the meaning of “a” when it
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`is followed by open-ended transitional phrases, such as “comprising,” the Court finds the
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`same interpretation applicable to this claim. Because the Court reads “a” to mean “one or
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`more,” the Court reads claim 18 to mean “a control system configured to use one or more
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`control modes, selected from” the list of four. As such, claim 18 is construed to include
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`the same language that, when used in claim 1, convinced Defendants that the control
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`system needed to be configured to operate in only one control mode. The Court’s
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`interpretation of the indefinite article “a”, combined with Defendants’ interpretation of
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`claim 1, persuades the Court that only one of the four options must be practiced in order
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`for infringement to lie.
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`Finally, the use of the phrase “selected from” further supports this construction.
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`“Selected from” denotes one of several styles known in patent practice as “Markush
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`groups,” although the precise label is unimportant. A Markush group typically is
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`expressed in the form: “a member selected from the group consisting of A, B, and C.”
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`Abbott Labs. v. Baxter Pharm. Prods., Inc., 334 F.3d 1274, 1280 (Fed. Cir. 2003). Where
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`such a form is expressed, courts are to read the members of the Markush group as
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`61
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`Ex. PGS 1023
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