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`Ex. PGS 1053
`(EXCERPTED)
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`Protective Order Material – Subject to Protective Order
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`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
`
`FILED UNDER SEAL
`
`JURY TRIAL DEMANDED
`
`§
`§
`§
`§
`§
`§
`
`§ §
`
`§
`
`ION GEOPHYSICAL CORPORATION,
`FUGRO-GEOTEAM, INC., FUGRO-
`GEOTEAM AS, FUGRO NORWAY
`MARINE SERVICES AS, FUGRO, INC.,
`FUGRO (USA), INC. and FUGRO
`GEOSERVICES, INC.,
`
`Defendants.
`
`DEFENDANTS’ AlVIENDED RESPONSE IN OPPOSITION TO
`
`WESTERNGECO L.L.C.’S MOTION FOR SUMMARY JUDGMENT
`
`OF WILLFUL INFRINGEMENT OF VALID CLAIMS OF THE ‘520 PATENT
`
`David L. Burgert
`ATTORNEY IN CHARGE
`Texas Bar No. 03378300
`S.D. Texas No. 2084
`
`dburgerti’ciporterhedges.com
`Ray T. Torgerson
`Texas Bar No. 24003067
`S.D. Texas No. 22846
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`rtorgersorfiébporterhedges.com
`Jonathan M. Pierce
`Texas Bar No. 24027744
`S.D. Texas No. 23801
`iereer’ii? orterhed eseom
`‘
`Porter Hedges LLP
`1000 Main Street, 36th Floor
`Houston, Texas 77002-6336
`Telephone: (713) 226-6668
`Facsimile: (713) 226—6268
`
`Gordon Arnold
`ATTORNEY IN CHARGE
`Texas Bar No. 01342410
`
`gamold@amold—iplaweom
`Jason A. Saunders
`Texas Bar No. 24042406
`
`j saundersKED arnold—iplaw .eom
`Arnold & Knobloch, LLP.
`4900 Woodway, Suite 900
`Houston, Texas 77056
`Telephone: (713) 972-1649
`
`John M. Elsley
`Texas Bar No. 06591950
`
`Royston, Rayzor, Vickery & Williams, LLP.
`711 Louisiana, Suite 500
`Houston, Texas 77002-6418
`Telephone: (713) 890—32 1 8
`
`
`
`ATTORNEYS FOR DEFENDANT
`
`ION GEOPHYSICAL CORPORATION
`
`ATTORNEYS FOR DEFENDANTS,
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`FUGRO-GEOTEAM, INC., FUGRO, INC.,
`
`FUGRO (USA), INC., FUGRO NORWAY
`MARINE SERVICES AS, FUGRO
`
`GEOSERVICES, INC., AND
`FUGRO-GEOTEAM AS
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`275725 1 V2
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`ACCESS RESTRICTED - ATTORNEYS ONLY - USDC SDTX
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`WG-PG800095203
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`Ex. PGS 1053
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`Ex. PGS 1053
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`

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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`
`HOUSTON DIVISION
`
`§ §
`
`§ §
`
`Judge Keith P. Ellison
`
`§ CIVIL ACTION NO. 4:09-cv-01827
`§
`§
`§
`§
`§
`§
`
`FILED UNDER SEAL
`
`JURY TRIAL DEMANDED
`
`§ §
`
`§
`
`WESTERNGECO L.L.C.,
`
`Plaintiff,
`
`V.
`
`ION GEOPHYSICAL CORPORATION,
`FUGRO-GEOTEAM, INC., FUGRO-
`GEOTEAM AS, FUGRO NORWAY
`MARINE SERVICES AS, FUGRO, INC.,
`FUGRO (USA), INC. and FUGRO
`GEOSERVICES, INC.,
`
`Defendants.
`
`DEFENDANTS’ AIVIENDED RESPONSE IN OPPOSITION TO
`
`WESTERNGECO L.L.C.’S MOTION FOR SUMMARY JUDGMENT
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`OF WILLFUL INFRINGEMENT OF VALID CLAIMS OF THE ‘520 PATENT1
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`Defendants
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`ION Geophysical Corporation (“ION”), Fugro-Geoteam,
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`Inc, Fugro-
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`Geoteam AS, Fugro Norway Marine Services AS, Fugro, lnc., Fugro (USA), lnc., and Fugro
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`Geoservices, Inc. (“the Fugro Defendants”) (collectively “Defendants”) file this Response in
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`Opposition to Plaintiff WesternGeco L.L.C.’s (“WesternGeco”) Motion for Summary Judgment
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`of Willful Infringement of Valid Claims of the ‘520 Patent (Doc. No. 276) (the “‘520 Motion),
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`and respectfully show as follows:
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`RELEVANT PROCEDURAL HISTORY
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`Before the Court is WesternGeco’s action against Defendants for patent infringement of
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`five of its patents.
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`(Doc. Nos. 1, 145). WestemGeco’s US. Patent No. 7,293,520 (the “‘520
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`Patent”) is the only patent relevant to this motion.
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`1 Defendants amend their response brief per the Court” s request to limit the brief to 50 pages.
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`2757251v2
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`ACCESS RESTRICTED — ATTORNEYS ONLY — USDC SDTX
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`WG—PGS00095212
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`Ex. PGS 1053
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`Ex. PGS 1053
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`'CLAI‘M'IERM'
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`' CGURT’S CGNSTRUCTION '
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`“streamer positioning device(s)”; “the
`positioning device”
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`a device that controls the position of a streamer
`as it is towed (e. g., a “bird”)
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`the feather angle mode
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`“feather angle mode”
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`“turn control mode”
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`to set and
`a control mode that attempts
`maintain each streamer in a straight line offset
`from the towing direction by a certain feather
`angle
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`mode wherein streamer positioning device(s)
`generate a force in the opposite direction of a
`turn
`and
`then
`directing
`each
`streamer
`positioning device to the position defined in
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`“streamer separation mode”
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`to set and
`a control mode that attempts
`maintain
`the
`spacing
`between
`adjacent
`streamers
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`Also at issue in this motion, and yet to be construed by the Court, is the phrase “a control system
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`configured to use a control mode selected from [the listed modes].”
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`Courts examine the patent’s intrinsic evidence to define the patented invention’s scope.
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`Phillips v. AWH Corp, 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). This intrinsic evidence
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`includes the claims themselves, the specification, and the prosecution history. See id at 1314;
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`CR. Bard, Inc. v. US. Surgical Corp, 388 F.3d 858, 861 (Fed. Cir. 2001).
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`“[T]he claims themselves provide substantial guidance in determining the meaning of
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`particular claim terms.” Phillips, 415 F.3d at 1314. A term’s context in the asserted claim can
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`be very instructive.
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`Id. Other asserted or unasserted claims can also aid in determining the
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`claim’s meaning because claim terms are typically used consistently throughout the patent.
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`Id.
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`Differences among the claim terms can also assist in understanding a term’s meaning. Id.
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`1.
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`Claim 18 of the ‘520 Patent requires a control system configured to
`use a feather angle mode, a turn control mode, a streamer separation
`mode, and two or more of these modes.
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`Claim 18 requires “a control system configured to use a control mode selected from a
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`2757251v2
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`Ex. PGS 1053
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`Ex. PGS 1053
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`feather angle mode, a turn control mode, a streamer separation mode, fl two or more of these
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`modes.” EX. A, ‘520 Patent (emphasis added). The use of the term “and” to separate the control
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`modes connotes a conjunctive list, which requires the claimed invention to comprise each mode
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`listed. See SuperGuia’e Corp. v. DirecTVEnters., Inc., 358 F.3d 870, 886-87 (Fed. Cir. 2004).
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`WestemGeco ignores the literal wording of the claim, arguing that the claim could be
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`satisfied if a control system were configured to use only one of the modes. Effectively,
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`WestemGeco asks the court to replace the word “and” with the word “or.” As the Federal
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`Circuit explained in Chef America, Inc. v. Lamb Weston, Inc., a patent must be interpreted “as
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`written, not as the patentees wish they had written it.” 358 F .3d 1371, 1374 (Fed. Cir. 2004).
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`Any ambiguity arising from the claim language that WestemGeco chose to use should be
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`resolved against the patentee by choosing the narrower interpretation. See Athletic Alternatives,
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`Inc. v. Prince Mfg, Inc., 73 F.3d 1573, 1581 (Fed. Cir. 1996).
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`The plain language of the limitation comports with the understanding that the control
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`system of Claim 18 must be capable of operation in each of the listed modes such that the
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`system’s operator may select from the listed control modes the particular control mode for use.
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`The purpose of having selectable control modes is to permit the system operator to select the
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`mode of operation best suited for the operating conditions. Without a control system that is
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`designed to operate in each of these modes, the control system cannot be configured to use a
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`control mode selected from these modes. After all, the mode must be available in the control
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`system for the mode to be selected.
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`This understanding of Claim 18 is perfectly consistent with the patent’s specification.
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`The specification notes that “[t]he inventive control system will primarily operate in two
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`different control modes: a feather angle control mode and a turn control mode.” EX. A, ‘520
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`2757251v2
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`Ex. PGS 1053
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`Ex. PGS 1053
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`Patent, col. 10:27-29 (emphasis added).
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`It further notes that “[i]n extreme weather conditions,
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`the inventive control system may also operate in a streamer separation mode.” Id. at col. 10:54-
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`55 (emphasis added). Thus, the inventive control system claimed in the patent is operable in
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`more than one mode and supports the conclusion that Claim 18’s plain language requires a
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`control system capable of operating in each of the listed modes.
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`This reading of the apparatus claims of the ‘520 Patent is further supported by the
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`comparison of the language used in Claim 1 to the language used in Claim 18. Claim 1 requires
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`“a control system configured to operate in one or more control modes selected from a feather
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`angle mode, a turn control mode, and a streamer separation mode.”
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`EX. A,
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`‘520 Patent
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`(emphasis added). Thus, unlike Claim 18, Claim 1’s language makes clear that the control
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`system need only be configured to operate in one control mode. Ifthe patentee desired a similar
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`system in Claim 18, the patentee simply could have used the same language to claim that
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`limitation. “[D]ifferent words or phrases used in separate claims are presumed to indicate that
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`the claims have different meanings and scope.” Seachcmge Int’l, Inc. v. C-COR, Inc, 413 F.3d
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`1361, 1368 (Fed. Cir. 2005).
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`Thus,
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`the doctrine of claim differentiation militates against
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`identically construing Claim 18’s “a control system configured to use a control mode selected
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`from” and Claim 1’s “a control system configured to operate in one or more control modes
`7
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`selected from.’ As a result of this different phrasing—carefully drafted and voluntarily chosen
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`by WestemGeco—Claim 18 requires a control system operable in each of the listed modes.
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`2.
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`Claim 18 of the ‘520 Patent is not drafted as a Markush group.
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`WestemGeco contends that the control system of Claim 18 need only be configured to
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`perform one of the listed modes on the theory that the limitation reciting the modes is a
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`“Markush group.” See ‘520 Motion, at >“14. WesternGeco is wrong. As explained below, Claim
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`2757251v2
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`Ex. PGS 1053
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`Ex. PGS 1053
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