Case 4:09-cv-01827 Document 593 Filed in TXSD on 11/09/12 Page 1 of 14
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`§
`§
`§
`§ CIVIL ACTION NO. 4:09-cv-01827
`§
`§ JURY TRIAL DEMANDED
`§
`§
`§
`§
`
`
`
`
`
`WESTERNGECO L.L.C.,
`
`
`
`v.
`
`ION GEOPHYSICAL CORPORATION,
`
`
`
`
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`DEFENDANT‟S REPLY IN SUPPORT OF MOTION FOR JUDGMENT AS A MATTER
`OF LAW AND FOR NEW TRIAL DUE TO INCORRECT CLAIM CONSTRUCTION
`
`
`
`
`David L. Burgert
`ATTORNEY IN CHARGE
`State Bar No. 03378300
`Federal I.D. No. 2084
`dburgert@porterhedges.com
`Ray T. Torgerson
`State Bar No. 24003067
`Federal I.D. No. 22846
`rtorgerson@porterhedges.com
`Jonathan M. Pierce
`State Bar No. 24027744
`Federal I.D. No. 23801
`jpierce@porterhedges.com
`PORTER HEDGES LLP
`1000 Main Street, 36th Floor
`Houston, Texas 77002-6341
`Telephone: (713) 226-6668
`Facsimile: (713) 226-6268
`
`ATTORNEYS FOR DEFENDANT
`ION GEOPHYSICAL CORPORATION
`
`
`
`
`
`OF COUNSEL:
`
`David J. Healey
`State Bar No. 09327980
`Federal I.D. No. 000035021
`Frank Porcelli
`Pro hac vice
`FISH & RICHARDSON, P.C.
`1 Houston Center
`1221 McKinney Street, 28th Floor
`Houston, Texas 77010
`Telephone: (713) 654-5310
`Facsimile: (713) 652-0109
`healey@fr.com
`
`
`
`PGS v WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2152, pg. 1
`
`

`
`Case 4:09-cv-01827 Document 593 Filed in TXSD on 11/09/12 Page 2 of 14
`
`
`
`I.
`
`II.
`
`SUMMARY OF THE ARGUMENT ..................................................................................1
`
`ARGUMENT .......................................................................................................................1
`
`A.
`
`B.
`
`ION‘s Motion Is Procedurally Proper. .....................................................................1
`
`The Correct Claim Constructions Urged by ION Require Judgment
`in Favor of ION or a New Trial ...............................................................................4
`
`1.
`
`2.
`
`The Bittleston Patents ..................................................................................4
`
`The Zajac Patent ..........................................................................................8
`
`C.
`
`The Damages Award Improperly Aggregates Damages for All
`Patents. ...................................................................................................................10
`
`III.
`
`CONCLUSION ..................................................................................................................10
`
`
`
`i
`
`
`
`PGS v WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2152, pg. 2
`
`

`
`Case 4:09-cv-01827 Document 593 Filed in TXSD on 11/09/12 Page 3 of 14
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`
`
`WESTERNGECO L.L.C.,
`
`
`
`v.
`
`ION GEOPHYSICAL CORPORATION,
`
`
`
`
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`§
`§
`§
`§ CIVIL ACTION NO. 4:09-cv-01827
`§
`§ JURY TRIAL DEMANDED
`§
`§
`§
`§
`
`
`DEFENDANT‟S REPLY IN SUPPORT OF MOTION FOR JUDGMENT AS A MATTER
`OF LAW AND FOR NEW TRIAL DUE TO INCORRECT CLAIM CONSTRUCTION
`
`ION Geophysical Corporation (―ION‖) submits its Reply in Support of Motion for
`
`Judgment as a Matter of Law and for a New Trial (D.I. 561).
`
`I.
`
`SUMMARY OF THE ARGUMENT
`
`ION‘s motion is both procedurally proper and substantively establishes that a reasonable
`
`jury would not have found for WesternGeco LLC (―WG‖) had the jury been given the correct
`
`construction for a streamer positioning device (―SPD‖) and an active streamer positioning device
`
`(―ASPD‖), as there is neither infringement nor intent required for 271(f) liability. ION is entitled
`
`to a verdict of non-infringement on all asserted claims or a new trial.
`
`A.
`
`ION‟s Motion Is Procedurally Proper.
`
`II.
`
`ARGUMENT
`
`It is axiomatic that judgment as a matter of law (―JMOL‖) is appropriate if the court finds
`
`that a ―reasonable jury would not have a legally sufficient evidentiary basis to find for the party
`
`on that issue.‖ FED. R. CIV. P. 50(a)(1). Such a ―legally sufficient evidentiary basis‖ cannot
`
`exist if the jury did not interpret the evidence under the correct claim construction which was
`
`
`
`1
`
`PGS v WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2152, pg. 3
`
`

`
`Case 4:09-cv-01827 Document 593 Filed in TXSD on 11/09/12 Page 4 of 14
`
`
`
`never submitted to the jury.
`
`Chief Judge Rader of the Federal Circuit specifically stressed the key role of claim
`
`construction and the resulting right to challenge it throughout the case up to a JMOL: ―the
`
`procedural law of patents as administered by the Federal Circuit entitles litigants to challenge an
`
`objectionable claim construction throughout the proceedings [including] with a motion for
`
`JMOL... Thus, this court is permitted to, and indeed must, consider [Defendant‘s] claim
`
`construction arguments on JMOL.‖ Cornell v. Hewlett-Packard, 654 F. Supp. 2d 119, 128
`
`(N.D.N.Y. 2009) (Rader, R. Ch. J. Fed. Cir., sitting by designation). Judge Rader‘s mandate
`
`follows the long-established precedent that ―[d]istrict courts may engage in a rolling claim
`
`construction, in which the court revisits and alters its interpretation of the claim terms as its
`
`understanding of the technology evolves.‖ Jack Guttman v. Kopykake Enterprises, Inc., 302 F.3d
`
`1352, 1361 (Fed. Cir. 2002). And it definitely encompasses the raising of it on JMOL, as the
`
`Chief Judge wrote when he was writing for the Federal Circuit as Judge Rader in Moba v
`
`Diamond, 325 F.3d 1306 (Fed. Cir. 2003) .
`
`It is not surprising that WG fails to cite a single case prohibiting consideration of claim
`
`construction issues on a JMOL, since the law of the Federal Circuit is directly to the contrary. At
`
`most, the caselaw cited by WG acknowledges that the parties should not reserve claim
`
`construction issues until the JMOL. See D.I. 570, WG‘s Opp. at 3 (citing Hewlett-Packard Co.
`
`v. Mustek Systems, Inc., 340 F.3d 1314, 1319 (Fed. Cir. 2003)). In contrast, ION diligently
`
`litigated the claim construction issues throughout the case, as was the case in Moba, supra, and
`
`now, at its last opportunity to do so before this Court, once again urges this Court to adopt ION‘s
`
`construction. Resolving this issue on a JMOL or through a new trial now instead of forcing ION
`
`to appeal will save both the Court and the parties substantial time and resources.
`
`
`
`2
`
`PGS v WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2152, pg. 4
`
`

`
`Case 4:09-cv-01827 Document 593 Filed in TXSD on 11/09/12 Page 5 of 14
`
`
`
`At the close of its case, ION moved for JMOL of non-infringement on each of the
`
`patents, including on Claims 19 and 23 of the ‘520 patent under the doctrine of equivalents.
`
`[D.I. 510-521.] Infringement on claim 18 was decided on summary judgment. ION now properly
`
`renews its non-infringement JMOL and timely seeks a new trial under Rule 59. See Fed. R. Civ.
`
`P. 50(b), 59(b), (e).
`
`To the extent that ION‘s motion may be interpreted as a motion for reconsideration, the
`
`standard of review is the same as under Rule 59. Such motion may be granted even where the
`
`Court has already considered all the recited claim language and expert testimony. See Lighting
`
`Ballast Control, 2010 WL 4946343, at *10 (granting a motion for reconsideration of claim
`
`construction because ―[t]he Court‘s prior ruling unduly discounted the unchallenged expert
`
`testimony, in light of Federal Circuit precedent on the issue, offered by Bobel and Dr. Roberts
`
`regarding the knowledge of one of ordinary skill in the electronic ballast field‖).
`
`
`
`The Court has diligently reviewed, analyzed, and ruled on many complex issues,
`
`including claim construction. Now, however, is the first time the Court has the benefit of the full
`
`trial record to consider the practical impact and the legal propriety of its past claim construction.
`
`Here, the grounds for reconsideration are even more compelling than in Lighting Ballast,
`
`because in addition to the evidence that the Court reviewed at claim construction, the Court
`
`recently heard evidence supporting ION‘s construction of ASPD in claim 14 of the ‘038 patent at
`
`trial—e.g., that a DigiFIN is used for lateral movement while ION sells a different device to
`
`move a streamer vertically, i.e., the DigiBIRD. Ex. A, Tr. 3499:21-3500:2. DigiFIN does not
`
`have the components that are sources for data for lateral and depth manipulation and control of
`
`the streamer by the system (id. at 3312:7-13 & 3313:9-14). This is key not only to the correct
`
`interpretation of claim 14 of the‘038 patent, but also to the lack of intent required by 271(f)—
`
`
`
`3
`
`PGS v WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2152, pg. 5
`
`

`
`Case 4:09-cv-01827 Document 593 Filed in TXSD on 11/09/12 Page 6 of 14
`
`
`
`ION sells a different device for vertical movement and does not market or sell DigiFIN for depth
`
`control of a streamer.
`
`Likewise, the trial made clearer what the Bittleston patents themselves disclose: lateral
`
`steering of streamers automatically controlled by a system are prior art and not the invention in
`
`the Bittleston patents. Further, the Bittleston patents do not teach how to control a system of
`
`multiple ―birds‖ where some move only either horizontally or vertically. Accordingly, ION‘s
`
`motion is procedurally proper, necessary, and, as shown in more detail below, should be granted.
`
`B.
`
`The Correct Claim Constructions Urged by ION Require Judgment in Favor
`of ION or a New Trial
`1.
`The Bittleston Patents
`a.
`
`ION‟s Construction Is the Only One to Accomplish the
`Purpose of the Invention and Distinguish It from Prior Art
`
`ION‘s construction, requiring both a horizontal and lateral movement in an SPD, is the
`
`only conceivable construction that achieves the purpose of the invention and distinguishes it
`
`from the prior art. The primary purpose of the invention was to prevent entanglements of the
`
`streamers submerged in water. See ‘017, col. 10, 11-23, Cl. 10; ‘520, Cls. 18, 27-34. Neither
`
`horizontal nor lateral movement on their own would accomplish maximizing separation by depth
`
`and lateral position. Nor would an SPD without turn control achieve this during turns.
`
`Further, the specification makes clear that birds with either horizontal or lateral
`
`movement subject to automatic control were well-known in prior art. See, e.g., ‘017, col. 1, lns.
`
`35-47 (―birds‖ used to control the depth of a streamer); col. 1, lns. 47-66 (―birds‖ used in the past
`
`to control horizontal movement of a streamer); col. 2, lns. 5-16, 17-32 (preexisting systems for
`
`manual control of birds, moving either vertically or horizontally, and systems that automated
`
`birds‘ control). WG fails to explain how the Bittleston patents could issue if they added nothing
`
`to the prior art.
`
`
`
`4
`
`PGS v WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2152, pg. 6
`
`

`
`Case 4:09-cv-01827 Document 593 Filed in TXSD on 11/09/12 Page 7 of 14
`
`
`
`b.
`
`ION‟s Construction Is the Only One Consistent with the Claim
`Language
`
`The language of Claims 27 and 28 and Claims 32-34, which depend from Claim 18,
`
`clarifies that an SPD must move the streamer both horizontally and vertically. As WG admits,
`
`dependent claims refer back to independent claims. D. I. 570 at 17. The dependent claims
`
`include all limitations in Claim 18 and clarify their functionality. Claims 27-28 recite ―separating
`
`adjacent streamers by depth during the turning mode.‖ Claims 32-34 reference control of the
`
`streamers‘ depth. If the SPD in Claim 18 did not have both vertical and horizontal movement, it
`
`would be impossible for the dependent claims to refer back to these features.
`
`c.
`
`ION‟s Construction is the Only One Supported by the
`Specification
`
`The specification discloses only an SPD that moves both horizontally and vertically. The
`
`vague reference in describing birds that are both vertically and horizontally steerable as
`
`“preferable” is immediately replaced by the limiting language ―[t]he vertically and horizontally
`
`steerable birds.‖ ‘017, col. 3, lns. 33-34. The only figure that depicts a bird—Figure 2—shows a
`
`bird with both horizontal and vertical movement. See, e.g., ‘017, Fig. 2, and col. 5, lns. 3-5.
`
`Figures 3 and 4 then refer only to the bird depicted in Figure 2. The only system the
`
`specification describes is a system that is intended to process data and issue commands to birds
`
`with both horizontal and vertical movement. Id. at col. 5, lns. 35-64; col. 4, lns. 44-48; col. 5,
`
`lines 37-67; col. 7, lns. 53-69. The specification lacks any disclosure of a novel SPD or system
`
`that would have only horizontal or vertical movement; such mentions are limited to the prior art.1
`
`―The present invention‖ language coupled with a single-minded focus on an SPD with both
`
`
`1 The words that WG holds out as referring to the claimed invention (‘520, col. 1 lns. 10, col. 10 lns.
`66 – col. 11 lns. 6) do not permit for an SPD capable of lateral-only movement of a streamer. In the
`context of the invention, they simply disclose that the lateral movement capability must be included.
`ION‘s expert testimony stated nothing different. Dkt. 570 at 10.
`
`
`
`5
`
`PGS v WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2152, pg. 7
`
`

`
`Case 4:09-cv-01827 Document 593 Filed in TXSD on 11/09/12 Page 8 of 14
`
`
`
`lateral and horizontal movement limit the invention to a device with both lateral and horizontal
`
`movement. It is not the preferred embodiment, but the only disclosed invention.
`
`d.
`
`ION‟s Construction Is the Only One Supported by the
`Prosecution History
`
`As ION explained in detail in the opening brief, Claim 18 of the ‘520 patent necessarily
`
`includes both vertical and lateral movement by an SPD because it was rejected for double-
`
`patenting over Claim 10 of the ‘017 patent, which already included a feather angle mode, a turn
`
`control mode and a streamer separation mode and depth control,2 with none of these modes used
`
`on their own (but always in combination). See D. I. 561. at 13-14 (citing Ex. H, ‘520 Patent File
`
`history, Office Action mailed August 18, 2006, at pp. WG00000744, 745, 757, 759). ―A
`
`rejection for obvious-type double patenting means that the claims of a later patent application are
`
`deemed obvious from the claims of an earlier patent.‖ Quad Environmental v. Union Sanitary
`
`Dist., 946 F.2d 870, 873 (Fed. Cir. 1991). Contrary to WG‘s opposition, ION does not argue that
`
`Claim 18 of the ‗520 Patent and Claim 10 of the ‗017 Patent are identical—to the contrary, ION
`
`emphasized that to have been allowed, Claim 18 must be an improvement over Claim 10. But
`
`this improvement, to have been rejected, must have included all of the subject matter of Claim
`
`10, for to have dropped functionality by requiring either vertical or horizontal but not both would
`
`have run the rejected claims smack into the systems admitted to be prior art in the specification,
`
`see, supra. This alone necessitates the conclusion that Claim 18 requires both vertical and
`
`horizontal movement. The same is true when Claims 18 and 19 of the ‗520 patent are viewed in
`
`light of Claims 7 and 8 of the ‗017 patent.
`
`e.
`
`Under ION‟s Correct Claim Construction of “Streamer
`Positioning Device,” No Infringement Liability Exists
`
`
`2 The specification makes clear that depth control of a streamer is necessary for any SPD. See ‘520 at
`col. 1, lns.50-53 (―The streamers are typically towed at a constant depth of approximately ten meters,
`in order to facilitate the removal of undesired ‗ghost‘ reflections from the surface of the water.‖).
`
`
`
`6
`
`PGS v WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2152, pg. 8
`
`

`
`Case 4:09-cv-01827 Document 593 Filed in TXSD on 11/09/12 Page 9 of 14
`
`
`
`The evidence at trial established that DigiFIN lacks the ability to control the depth of a
`
`streamer and, further, that ION lacks the intent required for liability under § 271(f).
`
`The evidence at trial showed that DigiFIN is incapable of operating in turn control mode.
`
`See, e.g.,’017, col. 9 ln. 63 – col. 10, ln. 11, col. 53-63, Claim 7; ‘520, Claims 18 and 23; ‘017
`
`col. 9, lns. 64-67, Claims 7 and 8, ‘520, Claims 18, 32-34. DigiFIN has only limited vertical
`
`movement for correction of the DigiFIN‘s own positioning, not for positioning or maintaining
`
`the depth of a streamer. This limited vertical movement of the DigiFIN itself is engaged so that
`
`the device can ―right itself‖ if it goes more than a few degrees out of its setting. See, e.g., Ex. F,
`
`Brune Proffer at ¶ 20; Ex. A, Tr. at 3498:3-3499:20; 3726:15-19; 3728:8-14. The proffered
`
`evidence also confirmed that the DigiFIN cannot otherwise move the streamer vertically and thus
`
`lacks sufficient force and range to ―control‖ the depth of the streamer. See generally Ex. F,
`
`Brune Proffer; Ex. A, Tr. at 3310:7-14 & 3499:21-3500:2.
`
`In contrast, Q-Fin, which undisputedly practices the patents, uses ―one bird that controls
`
`both lateral and vertical depth.‖ Ex. A, Trial Tr. at 330:23-31:9; see also 331:20-32:2.
`
`Further, liability under § 271(f)(1) and § 271(f)(2) fails as a matter of law under the
`
`correct application of the construction under Claim 14 of the ‗038 Patent and ―SPD‖ in the
`
`Bittleston patents because ION did not intend for the DigiFIN to perform as the sole movement
`
`device for a streamer. See § 271(f)(1) (―intending that such component will be combined … in a
`
`manner that would infringe‖); §271(f)(2), see Liquid Dynamics v. Vaughan Co., 449 F.3d 1209,
`
`1222 (Fed. Cir. 2006) (―A finding of inducement requires … a requisite showing of intent.‖).
`
`It is undisputed that ION does not advertise or sell DigiFIN as having vertical movement
`
`sufficient to maneuver and control the streamer depth. To the contrary, for that functionality
`
`ION sells a different device—DigiBIRD. Further, under § 271(f)(1) DigiFIN has a
`
`
`
`7
`
`PGS v WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2152, pg. 9
`
`

`
`Case 4:09-cv-01827 Document 593 Filed in TXSD on 11/09/12 Page 10 of 14
`
`
`
`noninfringing use under the correct claim construction as it should be applied in this case—
`
`horizontal movement of the streamer while a different device performs vertical movement (at
`
`least as to Claim 14 of the ‗038 patent, but also the relevant claims of the Bittleston patents when
`
`properly construed). Regardless of any vertical movement capability of DigiFIN, liability under
`
`§271(f) is impossible as a matter of law for Claim 14 of the ‗038 patent even under the current
`
`construction—and the claims of the Bittleston patents under the correct construction of SPD.
`
`f.
`
`ION‟s Construction Calls for Reversal of Summary Judgment
`on Claim 18 of the ‟520 Patent and the Rule 56(g) finding on
`Claim 14 of the „038 Patent as to DigiFIN
`
`As ION explained in the opening brief, the construction of SPD that was used in granting
`
`summary judgment of infringement of Claim 18 of the ‘520 patent is not disclosed or enabled by
`
`the specification except as prior art (and should invalidate the claims). ION‘s construction of an
`
`SPD as ―a device used to steer/position the streamer both vertically and horizontally‖ means a
`
`device that has sufficient vertical movement capability to control the depth of a streamer.
`
`DigiFIN lacks that capability. See, generally Ex. F, Brune Proffer; Ex. A, Tr. at 3310:7-14 &
`
`3499:21-3500:2. Similarly, DigiFIN lacks capability to operate in ―turn control mode.‖ Id. at
`
`3786:13-3787:25. The incidental vertical movement of the DigiFIN itself, is not the same as
`
`vertical movement to control the depth of a streamer. Summary judgment was based on the
`
`wrong construction of an SPD. The same is true for the same reasons in regard to the Rule 56(g)
`
`finding on DigiFIN as an ASPD for Claim 14 of the ‗038 patent.
`
`2.
`
`The Zajac Patent
`a.
`The Construction of ASPD in Claim 14 of the ‟038 Patent Was
`Misapplied
`
`The evidence at trial and proffered evidence showed that under the Court‘s construction
`
`of ASPD as a device capable of vertical and horizontal movement of the streamer, if properly
`
`applied, DigiFIN cannot infringe or alternatively has a non-infringing use (horizontal only
`
`
`
`8
`
`PGS v WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2152, pg. 10
`
`

`
`Case 4:09-cv-01827 Document 593 Filed in TXSD on 11/09/12 Page 11 of 14
`
`
`
`movement with another device providing vertical movement of the streamer). DigiFIN does not
`
`have the required capability for vertical movement of the streamer to control its depth, and
`
`cannot serve as a single ASPD.
`
`WG misinterprets or ignores ION‘s expert‘s proffered trial testimony explaining that
`
`DigiFIN does not have sufficient vertical movement to control the depth position of the entire
`
`streamer, but only the limited ability to right itself if it has rolled at least 12 degrees to the right
`
`or left or nosed up or down over 7.5 degrees. Ex. A, Tr. at 3725:20-3726:14.3 The expert
`
`specifically clarified that this does not qualify as vertical steering of the streamer:
`
`But one key concept also is that the DigiFIN will never exert a force in the proper direction
`to correct any depth errors at the location on the streamer where the fin is. It will only
`reduce the amount of erroneous, spurious vertical force that may come from a tilted fin.
`
`
`Ex. A, Tr. at 3726:15-19 (emphasis added).
`
`Q.: And again, is it only when these out-of-bounds roll or pitch conditions occur that there is
`an opportunity for the backoff algorithm to change the fin angle of the DigiFIN?
`A.: Correct. It is only in those cases and, again, it will never actually change the fin angle
`enough to push it up or down correctly. It will only reduce the amount of force going in the
`wrong direction.
`
`Ex. A, Tr. at 3728:8-14 (emphasis added). The expert then expressly stated that the DigiF IN
`
`does not meet the limitations of Claim 14. Ex. A, Tr. at 3729:6-19. Based on the proffered
`
`evidence showing that DigiFIN cannot control the vertical movement of a streamer, had the jury
`
`been given the correct construction of ASPD, infringement could not have been found.
`
`Moreover, the undisputed fact that DigiFIN can be used only for lateral movement, and
`
`
`3 Although WG cites to cherry-picked language from ION‘s produced documents stating that
`―[the DigiFIN back-off control algorithm] should be enabled when precise depth control is
`important,‖ WG is unable to cite to any language that enabling this algorithm will actually
`control the depth of the streamer. PTX 9 at ION 15158-59. Although the algorithm may add
`some limited vertical mobility, it cannot move the streamer up or down, much less offer any
`measure of ―control.‖ Moreover, the statement makes perfect sense when considered in the
`context that ION is promoting only the DigiBird to accomplish the important vertical depth
`control.
`
`
`
`9
`
`PGS v WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2152, pg. 11
`
`

`
`Case 4:09-cv-01827 Document 593 Filed in TXSD on 11/09/12 Page 12 of 14
`
`
`
`DigiBIRD is sold for vertical movement of the streamers shows both a non-infringing use and
`
`lack of 271(f) intent.
`
`C.
`
`The Damages Award Improperly Aggregates Damages for All Patents.
`
`Assuming the award has any basis, it should be set aside or re-tried because it improperly
`
`lumps the damages for all claims of all 4 patents under unjustified application of the entire
`
`market value rule and will lose its support if any claim of any patent is found not infringed.
`
`ION preserved its objection to the aggregation of damages. D. I. 504. ION objected in
`
`writing to the final version of the charge, including to the submission of aggregated damages
`
`questions for commingled liability theories. See D. I. 508 at 6-7.
`
`The lost profits award was based on the entire commingled value of the Bittleston
`
`claimed inventions used in a survey with the necessary functionality to achieve the purpose of
`
`the invention, combined with the value of Claim 14 of the Zajac patent. The Bittleston and Zajac
`
`patents are distinct. WG recognized the distinction when seeking royalty of an incremental five
`
`percent as the ―value-add‖ of the Zajac ‘038 patent over the Bittleston patents in its reasonable
`
`royalty analysis, but failed to draw any distinction in its verdict form.4 Further, WG did not
`
`prove that any claim or feature of the Bittleston patents or the Zajac ‗038 patent would drive the
`
`demand and justify the application of the entire market value rule. Accordingly, a reversal on
`
`any claim would require a reversal of the entire award.
`
`III. CONCLUSION
`
`For the reasons above, ION‘s motion should be granted. ION should receive either
`
`judgment as a matter of law in its favor or a new trial.
`
`
`4 WG misquotes the law to ask that ION pay an inflated award for four patents of two distinct groups,
`even if the infringement is reduced to a single claim in a single patent. (Dkt. 570 at 19-20 (citing
`CollegeNet v. ApplyYourself, Inc., 418 F.3d 1225, 1236 (Fed. Cir. 2005) (―After all, infringement of
`even a single claim entitles a patentee to damages.‖)). Here, the issue is not whether ION should pay
`damages in principle if it infringes, but the potential amount.
`
`
`
`10
`
`PGS v WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2152, pg. 12
`
`

`
`Case 4:09-cv-01827 Document 593 Filed in TXSD on 11/09/12 Page 13 of 14
`
`
`
`Dated: November 9, 2012
`
`
`
`
`
`Respectfully submitted
`
`/s/ David J. Healey____________
`David L. Burgert
`ATTORNEY IN CHARGE
`State Bar No. 03378300
`Federal I.D. No. 2084
`dburgert@porterhedges.com
`Ray T. Torgerson
`State Bar No. 24003067
`Federal I.D. No. 22846
`rtorgerson@porterhedges.com
`Jonathan M. Pierce
`State Bar No. 24027744
`Federal I.D. No. 23801
`jpierce@porterhedges.com
`PORTER HEDGES LLP
`1000 Main Street, 36th Floor
`Houston, Texas 77002-6341
`Telephone: (713) 226-6668
`Facsimile: (713) 226-6268
`
`David J. Healey
`State Bar No. 09327980
`Federal ID No. 000035021
`FISH & RICHARDSON, P.C.
`1 Houston Center
`1221 McKinney Street, 28th Floor
`Houston, Texas 77010
`Telephone: (713) 654-5310
`Facsimile: (713) 652-0109
`healey@fr.com
`
`ATTORNEYS FOR DEFENDANT
`ION GEOPHYSICAL CORPORATION
`
`
`
`11
`
`
`
`
`
`PGS v WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2152, pg. 13
`
`

`
`Case 4:09-cv-01827 Document 593 Filed in TXSD on 11/09/12 Page 14 of 14
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on the 9th day of November 2012, the foregoing
`was electronically filed with the Clerk of Court using the CM/ECF system which will send
`notification of such filing to the following:
`
`
`
`Lee L. Kaplan, Esq.
`SMYSER KAPLAN & VESELKA, L.L.P.
`700 Louisiana, Suite 2300
`Houston, TX 77002
`Tel: 713-221-2323
`Fax: 713-221-2320
`E-mail: lkaplan@skv.com
`
`Timothy K. Gilman, Esq.
`Simeon G. Papacostas, Esq.
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, NY 10022
`Tel: 212-446-4689
`Main: 212-446-4800
`Fax: 212-446-4900
`E-mail: tgilman@kirkland.com
`E-mail: spapacostas@kirkland.com
`
`Gregg F. LoCascio, P.C.
`KIRKLAND & ELLIS LLP
`655 Fifteenth Street, N.W.
`Washington, D.C. 20005
`Tel: 202-879-5290
`Fax: 202-879-5200
`E-mail: glocascio@kirkland.com
`
`ATTORNEYS FOR PLAINTIFF
`WESTERNGECO L.L.C.
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ David J. Healey
`David J. Healey
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`2939137v1
`
`
`
`12
`
`PGS v WESTERNGECO (IPR2014-00689)
`WESTERNGECO Exhibit 2152, pg. 14