Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 1 of 30
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`) Civil Action No. 4:09-CV-01827
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`Judge Keith P. Ellison
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`Jury Trial Demanded
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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,
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`Defendant.
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`WESTERNGECO’S OPPOSITION TO ION’S RENEWED MOTION
`FOR JUDGMENT AS A MATTER OF LAW AND ALTERNATIVE
`MOTION FOR NEW TRIAL REGARDING NON-INFRINGEMENT (D.I. 556)
`
`Lee L. Kaplan
`lkaplan@skv.com
`SMYSER KAPLAN
` & VESELKA, L.L.P.
`Bank of America Center
`700 Louisiana, Suite 2300
`Houston, TX 77002
`Tel: (713) 221-2323
`Fax: (713) 221-2320
`
`Attorneys for Plaintiff
`WesternGeco L.L.C.
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`
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`Of Counsel:
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`Gregg F. LoCascio, P.C.
`gregg.locascio@kirkland.com
`KIRKLAND & ELLIS LLP
`655 Fifteenth Street, N.W.
`Washington, D.C. 20005-5793
`Tel.: (202) 879-5000
`Fax: (202) 879-5200
`
`Timothy K. Gilman
`timothy.gilman@kirkland.com
`Ryan Kane
`ryan.kane@kirkland.com
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, New York 10022
`Tel.: (212) 446-4800
`Fax: (212) 446-4900
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`Dated: October 26, 2012
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`PGS Exhibit 1100, pg. 1
`PGS v. WesternGeco (IPR2014-00689)
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 2 of 30
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`TABLE OF CONTENTS
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`Page
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`SUMMARY OF THE ARGUMENT ..............................................................................................1
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`NATURE AND STAGE OF PROCEEDING .................................................................................2
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`LEGAL STANDARD ......................................................................................................................2
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`STATEMENT OF FACTS ..............................................................................................................3
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`ARGUMENT ...................................................................................................................................4
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`I.
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`The Jury’s Findings Of Infringement Are Supported By Substantial Evidence ..................4
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`A.
`B.
`C.
`D.
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`ION Infringes Claim 19 And Claim 23 Of The ’520 Patent ....................................5
`ION Infringes Claim 15 Of The ’607 Patent .........................................................11
`ION Infringes Claim 15 Of The ’967 Patent .........................................................16
`ION Infringes Claim 14 Of The ’038 Patent .........................................................18
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`II.
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`ION Waived Any Objection To The Verdict Form ...........................................................23
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`CONCLUSION ..............................................................................................................................24
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`i
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`PGS Exhibit 1100, pg. 2
`PGS v. WesternGeco (IPR2014-00689)
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 3 of 30
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`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Page
`
`Amgen Inc. v. Hoechst Marion Roussel, Inc.,
`314 F.3d 1313 (Fed. Cir. 2003)............................................................................................... 11
`
`Auster Oil & Gas, Inc. v. Stream,
`835 F.2d 597 (5th Cir. 1988) .............................................................................................. 3, 22
`
`Central Admixture Pharm. Servs., Inc. v. Advanced Cardiac Solns., P.C.,
`482 F.3d 1347 (Fed. Cir. 2007)............................................................................................... 16
`
`ClearValue, Inc. v. Pearl River Polymers, Inc.,
`735 F. Supp. 2d 560 (E.D. Tex. 2010) .................................................................................... 23
`
`Cordis Corp. v. Boston Scientific Corp.,
`658 F.3d 1347 (Fed. Cir. 2011)......................................................................................... 15, 16
`
`Corning Glass Works v. Sumitomo Elec. U.S.A., Inc.,
`868 F.2d 1251 (Fed. Cir. 1989)................................................................................................. 5
`
`Cummins-Allison Corp. v. SBM Co.,
`No. 2011-1049, 2012 WL 1890153 (Fed. Cir. May 25, 2012) ................................. 3, 6, 17, 20
`
`Dawson v. Wal-Mart Stores, Inc.,
`978 F.2d 205 (5th Cir. 1992) ...................................................................................... 3, 6, 9, 20
`
`E.E.O.C. v. Serv. Temps Inc.,
`679 F.3d 323 (5th Cir. 2012) .................................................................................................... 2
`
`Fenner Inv., Ltd. v. Microsoft Corp.,
`632 F. Supp. 2d 627 (E.D. Tex. 2009) .............................................................................. 15, 16
`
`Graver Tank & Mfg. Co. v. Linde Air Products Co.,
`339 U.S. 605 (1950) .................................................................................................................. 9
`
`Laryngeal Mask Co. v. Ambu A/S,
`618 F.3d 1367 (Fed. Cir. 2010)............................................................................................... 15
`
`Maryland Cas. Co. v. Acceptance Indem. Ins. Co.,
`639 F.3d 701 (5th Cir. 2011) .......................................................................................... 3, 5, 22
`
`Minn. Mining & Mfg. Co. v. Chemque, Inc.,
`303 F.3d 1294 (Fed. Cir. 2002)................................................................................................. 5
`
`
`
`ii
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`PGS Exhibit 1100, pg. 3
`PGS v. WesternGeco (IPR2014-00689)
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 4 of 30
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`TABLE OF AUTHORITIES (CONT’D)
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`Page
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`Nat’l Presto Indus., Inc. v. W. Bend Co.,
`76 F.3d 1185 (Fed. Cir. 1996)................................................................................................... 9
`
`Orion IP, LLC v. Mercedes-Benz USA, LLC,
`516 F. Supp. 2d 720 (E.D. Tex. 2007) .................................................................................... 15
`
`Paice LLC v. Toyota Motor Corp.,
`504 F.3d 1293 (Fed. Cir. 2007)................................................................................................. 9
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)......................................................................................... 12, 15
`
`Reeves v. Sanderson Plumbing Prods., Inc.,
`530 U.S. 133 (2000) .................................................................................................................. 2
`
`SMI Owen Steel Co. v. Marsh USA, Inc.,
`520 F.3d 432 (5th Cir. 2008) .................................................................................................... 2
`
`Spansion, Inc. v. Int’l Trade Comm’n,
`629 F.3d 1331 (Fed. Cir. 2010)............................................................................................... 23
`
`Teleflex, Inc. v. Ficosa N. Am. Corp.,
`299 F.3d 1313 (Fed. Cir. 2002)............................................................................................... 14
`
`Thorner v. Sony Computer Entm’t Am. LLC,
`669 F.3d 1362 (Fed. Cir. 2012)............................................................................................... 15
`
`Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co.,
`520 U.S. 17 (1997) .................................................................................................................... 8
`
`Statutes
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`35 U.S.C. § 271(f)(1) ........................................................................................................ 26, 27, 28
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`35 U.S.C. § 271(f)(2) ........................................................................................................ 26, 27, 28
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`Other Authorities
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`Matthews Annotated Patent Digest § 4:5 ...................................................................................... 18
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`iii
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`PGS Exhibit 1100, pg. 4
`PGS v. WesternGeco (IPR2014-00689)
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 5 of 30
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`WesternGeco L.L.C. (“WesternGeco”) opposes ION’s Renewed Motion for Judgment as
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`a Matter of Law and Alternative Motion for New Trial Regarding Non-Infringement (D.I. 556).
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`SUMMARY OF THE ARGUMENT
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`Following a three-and-a-half week jury trial, ION was found to willfully infringe four
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`valid WesternGeco patents under multiple sections of the Patent Act. Seeking to substitute its
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`own judgment for that of the jury, ION cherry-picks snippets of interested testimony to argue to
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`reverse or set aside the jury’s conclusions. In doing so, ION ignores record evidence—including
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`its own witnesses’ admissions—supporting, indeed confirming, the jury’s verdict. In arguing
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`that the jury erred on every infringement question it was asked, ION telegraphs its flawed
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`approach to post-trial motions: a demand that the Court wholesale substitute ION’s attorney
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`argument and chosen facts for the jury’s weighing of the full evidentiary record and witness
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`credibility over a three-and-a-half week trial.
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`ION’s approach is improper. On post-trial motions, the entire record must be considered
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`and the jury’s credibility and balancing determinations cannot be second-guessed or discarded as
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`ION suggests. Merely showing some evidence that purportedly supports ION’s trial arguments
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`is not sufficient—ION must prove that no reasonable jury could find infringement based on its
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`consideration of all of the record evidence. ION fails to apply the right test, fails to consider the
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`ample evidence of its willful infringement, and fails to call the jury’s verdict into question.
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`ION’s manuals, internal documents, witness testimony and expert testimony all confirm that
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`ION’s system meets each and every element of the asserted claims. Because a rational jury
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`could—and did—review the evidence and determine that ION infringes those claims, ION’s
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`motion must be denied.
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`PGS Exhibit 1100, pg. 5
`PGS v. WesternGeco (IPR2014-00689)
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 6 of 30
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`NATURE AND STAGE OF PROCEEDING
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`WesternGeco filed its Complaint on June 12, 2009, to halt ION’s willful infringement of
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`U.S. Patent Nos. 6,932,017 (“the ’017 patent”),1 7,080,607 (“the ’607 patent”), 7,162,967 (“the
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`’967 patent”), 7,293,520 (“the ’520 patent”) (collectively, “the Bittleston patents”), and U.S.
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`Patent No. 6,691,038 (“the ’038 Zajac patent”). (D.I. 1) WesternGeco filed its Complaint
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`against various Fugro entities (collectively, “Fugro”) on June 16, 2010 which was subsequently
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`consolidated with the present case. (D.I. 111; D.I. 119) Claim construction proceedings
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`regarding, inter alia, the term “predict” as used in the ’607 patent were held in 2011. (D.I. 190;
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`Ex. 2, Dec. 15, 2011 Hr’g Tr. at 7:14–8:9) The case proceeded to trial on July 23, 2012. (Trial
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`Tr. at 131) Fugro was dismissed from the case mid-trial by stipulation. (D.I. 525) On August
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`16, 2012, the jury returned a verdict that ION willfully infringed all of the asserted patents and
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`awarded WesternGeco $105.9 million in damages. (D.I. 536)
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`LEGAL STANDARD
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`Judgment as a matter of law is appropriate only if “the facts and inferences point so
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`strongly in favor of the movant that a rational jury could not reach a contrary verdict.” SMI
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`Owen Steel Co. v. Marsh USA, Inc., 520 F.3d 432, 437 (5th Cir. 2008). In the face of a jury
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`verdict, this standard is “especially deferential.” E.E.O.C. v. Serv. Temps Inc., 679 F.3d 323 (5th
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`Cir. 2012). “[I]n entertaining a motion for judgment as a matter of law, the court should review
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`all of the evidence in the record” and “must draw all reasonable inferences in favor of the
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`nonmoving party.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). “In
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`reviewing a jury verdict where the underlying facts are disputed, the court must ‘presume that the
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`jury resolved the underlying factual disputes in favor of the verdict winner and leave those
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`1 The ’017 patent was dismissed from this case prior to trial to streamline the presentation to the
`jury. (Ex. 1, Email from G. LoCascio to J. Emerson dated 7/22/2012)
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`2
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`PGS Exhibit 1100, pg. 6
`PGS v. WesternGeco (IPR2014-00689)
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 7 of 30
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`presumed findings undisturbed if they are supported by substantial evidence.’” Cummins-Allison
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`Corp. v. SBM Co., No. 2011-1049, 2012 WL 1890153, at *7 (Fed. Cir. May 25, 2012).
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`Moreover, “[i]f a party fails to move for judgment as a matter of law under [Rule] 50(a) on an
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`issue at the conclusion of all of the evidence, that party waives both its right to file a renewed
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`post-verdict Rule 50(b) motion and also its right to challenge the sufficiency of the evidence on
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`that issue on appeal.” Maryland Cas. Co. v. Acceptance Indem. Ins. Co., 639 F.3d 701, 707–08
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`(5th Cir. 2011).
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` A motion for a “[n]ew trial[] should not be granted . . . unless, at a minimum, the verdict
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`is against the great weight of the evidence.” Dawson v. Wal-Mart Stores, Inc., 978 F.2d 205,
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`208 (5th Cir. 1992). The Court must again view the evidence “in a light most favorable to the
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`jury’s verdict, and the verdict must be affirmed unless the evidence points so strongly and
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`overwhelmingly in favor of one party that the court believes that reasonable [jurors] could not
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`arrive at a contrary conclusion.” Id. “Where the jury could have reached a number of different
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`conclusions, all of which would have sufficient support based on the evidence, the jury’s
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`findings will be upheld.” Dawson, 978 F.2d at 208. Likewise, if an issue is raised for the first
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`time on a motion for a new trial, the issue is waived. Auster Oil & Gas, Inc. v. Stream, 835 F.2d
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`597, 601 (5th Cir. 1988) (“The issue was not squarely posed until the filing of appellants’ motion
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`for new trial, which was too late.”).
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`STATEMENT OF FACTS
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`Marine seismic streamers are cables up to many miles in length that are towed behind
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`ships. (Trial Tr. at 248:25–253:17) The streamers use sound waves to map the subsurface
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`geology for the purpose of exploring, exploiting, and managing natural resources of the seabed
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`and subsoil. (Id.)
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`3
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`PGS Exhibit 1100, pg. 7
`PGS v. WesternGeco (IPR2014-00689)
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 8 of 30
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`WesternGeco’s Bittleston patents teach laterally steering of streamer arrays, including
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`apportionment of the lateral control system between a shipboard global controller and local
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`controllers on streamer positioning devices, using “position predictor software” to overcome the
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`signal latency and uncertainty in steering miles-long arrays, and using steering control modes to
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`achieve better mapping and operational benefits. (PTX 1 at 3:62–4:3, 4:21–25, 4:57–61, 10:27–
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`65; see also Trial Tr. at 497:24–501:10, 511:16–517:7)
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`WesternGeco’s Zajac ’038 patent builds on the Bittleston Patents and teaches “seismic
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`streamer array tracking and positioning systems” that record prior survey positions of the miles-
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`long array and attempt to repeat them over time to monitor changes in oil formations, i.e., a 4-D
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`survey. (PTX 5 at 3:15–19, 41–42, 11:14–26)
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`ION’s DigiFIN system includes both DigiFIN streamer positioning devices (also known
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`as “birds”) and the Lateral Controller shipboard system that controls the DigiFIN. (PTX 9 at
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`ION 15133–15134) DigiFIN’s control system includes “[g]lobal and local control system
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`capability.” and DigiFIN “is adjusted by the shipboard Lateral Controller Software to control the
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`lateral movement of the streamer at the location of the device.” (PTX 9 at ION 15133, ION
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`15172) Because DigiFIN affects depth, it can also use the “Fin Backoff Control Algorithm”
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`“when precise depth control is important.” (Id. at ION 15158; see also Trial Tr. at 1509:12–
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`1510:24)
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`ARGUMENT
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`I.
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`The Jury’s Findings Of Infringement Are Supported By Substantial Evidence
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`ION’s product manuals and technical documentation—as well as the admissions of its
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`engineers and technical experts—confirm that ION’s DigiFIN and Lateral Controller infringe the
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`asserted claims of WesternGeco’s patents-in-suit. Cherry-picking snippets from biased
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`witnesses that purportedly question this record evidence, ION demands that the jury’s verdict be
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`4
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`PGS Exhibit 1100, pg. 8
`PGS v. WesternGeco (IPR2014-00689)
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 9 of 30
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`disregarded. This applies the wrong standard and fails to call the jury’s verdict into doubt.
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`Substantial evidence supports the verdict of not only infringement, but willful infringement, and
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`the great weight of the evidence confirms ION’s violation of WesternGeco’s patent rights.
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`A.
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`ION Infringes Claim 19 And Claim 23 Of The ’520 Patent
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`To infringe, ION’s accused DigiFIN system must practice all of the limitations of the
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`claimed invention. Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1258
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`(Fed. Cir. 1989). In order to infringe a dependent claim, a defendant must infringe the
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`limitations of the independent claim, as well as the additional limitations added by the dependent
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`claim. Minn. Mining & Mfg. Co. v. Chemque, Inc., 303 F.3d 1294, 1302 (Fed. Cir. 2002).
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`Claims 19 and 23 of the ’520 patent depend from independent claim 18, which covers:
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`18. An apparatus comprising: (a) an array of streamers each having a plurality of
`streamer positioning devices there along; (b) a control system configured to use a
`control mode selected from a feather angle mode, a turn control mode, a streamer
`separation mode, and two or more of these modes.
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`(PTX 1) As the Court previously found, no genuine dispute existed as to any material fact, and
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`ION’s DigiFIN system infringed all of the limitations of Claim 18 as a matter of law. (D.I. 365;
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`D.I. 372) Claims 19 and 23, as dependent claims, further limit the control mode to “feather
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`angle mode” and “turn control mode,” respectively, and the jury found that ION infringes these
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`dependent claims as well.
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`i.
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`ION Waived Its Objections To Literal Infringement
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`ION failed to move for judgment as a matter of law under Rule 50(a) on literal
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`infringement for claims 19 and 23 of the ’520 patent. (D.I. 510) Having failed to do so, ION
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`cannot now move under Rule 50(b). Maryland Cas., 639 F.3d at 707–08. The jury’s general
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`verdict of infringement can be supported by evidence of either literal infringement or doctrine of
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`equivalents (“DOE”), and the jury was properly instructed to consider both forms of
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`5
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`PGS Exhibit 1100, pg. 9
`PGS v. WesternGeco (IPR2014-00689)
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 10 of 30
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`infringement. Dawson, 978 F.2d at 208 (“Where the jury could have reached a number of
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`different conclusions, all of which would have sufficient support based on the evidence, the
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`jury’s findings will be upheld.”); see also Cummins-Allison, 2012 WL 1890153 at *4; D.I. 530 at
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`Instructions 8–10. Because ION never disputed the record evidence of literal infringement, it
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`cannot seek judgment as a matter of law on “infringement”—which subsumes literal
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`infringement—for the first time post-trial. But in any event, as discussed below, WesternGeco
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`adduced ample evidence at trial supporting the jury’s verdict under literal and DOE
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`infringement.
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`ii.
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`ION Literally Infringes Claim 19 Of The ’520 patent
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`The Court construed “feather angle mode” as “a control mode that attempts to set and
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`maintain each streamer in a straight line offset from the towing direction by a certain feather
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`angle.” (D.I. 120 at 45) As shown at trial, when ION’s system is operating in “ghost mode,” the
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`lateral controller sets the “ghost” or virtual streamer to a specific feather angle and then drives
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`one of the actual streamers to achieve that feather angle. (Trial Tr. at 1286:24–1287:10,
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`1425:12–24, 3435:16–3436:6) The remaining streamers then align themselves with the reference
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`streamer at that same feather angle. (Trial Tr. at 1323:1–23, 1324:1–17, 1423:17–1424:16,
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`1425:3–24, 1430:20–1431:5 (testimony of WesternGeco’s expert Dr. Michael Triantafyllou); id.
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`at 1524:1–6, 1525:20–1526:15 (testimony of WesternGeco’s expert Dr. John Leonard); id. at
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`3781:3–3782:5, 3782:22–24, 3897:13–21, 3908:18–22 (testimony of ION’s expert Robert
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`Brune)) This is illustrated in ION’s product literature:
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`6
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`PGS Exhibit 1100, pg. 10
`PGS v. WesternGeco (IPR2014-00689)
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 11 of 30
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`(PTX 44 at WG 806; see also PTX 8 at ION 1443) All of ION’s streamers are “in a straight line
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`offset from the towing direction by a certain feather angle,” as required by the Court’s
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`construction. (See D.I. 120 at 25) ION’s motion fails to even address this evidence, which is
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`dispositive.
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`Fugro’s and ION’s employees and customers confirmed that ION’s system operates in
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`feather mode. (Trial Tr. at 3468:25–3469:8, 3474:19–25 (Daniel Seale, ION’s senior systems
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`engineer); id. at 2055:12–15, 2062:7–9, 3340:17–3342:1, 3353:2–11, 3362:14–23, 3433:15–24,
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`3435:3–3436:6 (Crawford Macnab, ION’s Orca software project manager); id. at 1008:5–7,
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`1009:4–8, 1013:22–1014:19, 1024:21–1025:10, 1028:18–22, 1030:1–3 (Leif Morten By, Fugro’s
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`former Navigation Manager); id. at 3025:8–13 (David Moffat, ION’s Senior Vice President))
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`At trial, ION tried to use the demonstrative below to contest infringement:
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`7
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`PGS Exhibit 1100, pg. 11
`PGS v. WesternGeco (IPR2014-00689)
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 12 of 30
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`(Ex. 3, Brune 21; see also D.I. 556 at 10) But this demonstrative is essentially the same “before”
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`picture without DigiFIN from PTX 44, shown above. The actual trial exhibits in evidence
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`support the jury’s verdict, and the jury was free to reject ION’s contradictory attorney arguments
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`and demonstrative. The jury was also free to discredit the testimony of Mr. Brune, ION’s expert,
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`when it was exposed on cross-examination that his testimony was based on the non-DigiFIN
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`picture. (Trial Tr. at 3894:18–3898:5) A rational jury could find literal infringement on this
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`record, the verdict is not against the great weight of the evidence, and the jury’s verdict should
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`not be disturbed.
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`iii.
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`At A Minimum, ION Infringes Claim 19 Under DOE
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`If a claim is not literally infringed, it can still be infringed under the doctrine of
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`equivalents. Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 21 (1997). To
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`infringe under DOE, the accused system must be insubstantially different from the claimed
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`invention, e.g., it must perform substantially the same function as the claimed invention in
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`substantially the same way to achieve substantially the same result. Id. at 40–41. As shown in
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`ION’s product manuals, the lateral controller “positions the streamers at an even separation along
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`their length from the reference streamer and each other while simultaneously driving the
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`reference streamer to the desired feather value.” (PTX 206 at ION 1549) The net effect is that
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`the reference streamer is set and maintained at a given feather angle, and the remaining streamers
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`in the array—by being evenly separated from the reference streamer—mimic this same feather
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`angle, as illustrated above. ION’s expert, Mr. Brune, admitted during cross-examination that this
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`produces the same result as the claimed feather angle mode, i.e., setting a particular feather angle
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`for the spread. (See, e.g., Trial Tr. at 3898:1–5, 3899:22–24, 3901:3–10 (“Q. Sir, ION’s own
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`document is talking about steering [the] spread to match a feather angle, right? A. To drive the
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`spread to correct feather, yes.”); see also id. at 3902:25–3903:4) ION’s method of setting the
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`8
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`PGS Exhibit 1100, pg. 12
`PGS v. WesternGeco (IPR2014-00689)
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 13 of 30
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`feather angle—inputting a specific angle from the survey operator or from a prior survey being
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`repeated—mirrors that of the Bittleston patents as well. (Compare PTX 206 at ION 1548–1550
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`with PTX 1 at 10:32–34) A reasonable jury, viewing this evidence, could properly conclude that
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`ION infringes claim 19 of the ’520 patent both literally and under the DOE.
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`ION fails to address this record evidence. Instead, ION argues that WesternGeco “failed
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`to present any particularized testimony supporting its allegations of infringement under the
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`doctrine of equivalents.” (D.I. 556 at 13, 20) But “[e]quivalence . . . is not the prisoner of a
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`formula. . . .” Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 609 (1950).
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`“[N]o specific formulation of evidence and argument is required” to prove infringement under
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`the DOE. See Nat’l Presto Indus., Inc. v. W. Bend Co., 76 F.3d 1185, 1191 (Fed. Cir. 1996)
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`(rejecting defendant’s argument that plaintiff “did not provide sufficiently explicit witness
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`testimony and ‘linking attorney argument’”). To prove equivalents, WesternGeco’s expert Dr.
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`Triantafyllou was not required to “re-start his testimony at square one when transitioning to a
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`doctrine of equivalents analysis.” Paice LLC v. Toyota Motor Corp., 504 F.3d 1293, 1305 (Fed.
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`Cir. 2007). The jury was free to apply all of the record evidence to evaluate both literal
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`infringement and DOE infringement—either of which is sufficient to support the verdict.
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`Dawson, 978 F.2d at 208. ION fails to address, let alone rebut, any of the DOE evidence
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`presented by Dr. Triantafyllou, Dr. Leonard or ION’s own expert, Mr. Brune, fails to prove that
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`no reasonable juror could have found DOE infringement or that such a finding would be against
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`the great weight of the evidence, and fails to justify its demand that the jury’s verdict be
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`overturned.
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`iv.
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`ION Infringes Claim 23 of the ’520 Patent
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`Claim 23 specifies that the control system operate in a “turn control mode,” which the
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`Court construed to mean a control “mode wherein streamer positioning device(s) generate a
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`9
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`PGS Exhibit 1100, pg. 13
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`force in the opposite direction of a turn and then directing each streamer positioning device to the
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`position defined in the feather angle mode.” (D.I. 120 at 45) Dale Lambert, ION’s Vice
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`President of Engineering, testified generally that DigiFIN can control the streamers in a turn.
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`(Trial Tr. at 2042:23–2043:7) Jeffrey Cunkelman, ION’s Director of Marketing, more
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`specifically testified that DigiFIN’s “ghost mode on a turn” was “a turn control mode.” (Trial
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`Tr. at 2226:20–2227:10) Mr. Macnab, an ION software engineer, confirmed that this is the same
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`“turn control mode” as construed by the Court:
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`Q. So if a user sort of selects that mode to start at the beginning of the turn,
`essentially what the mode would be doing was -- would be to push the streamers
`in the opposite direction to the turn and then eventually put them into the target
`feather?
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`A. Yes.
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`(Trial Tr. at 2063:5–10 (emphasis added); see also id. at 3356:17–23) Mr. Seale, another ION
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`software engineer, similarly confirmed that “all the DigiFIN units are pushing on the opposite
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`direction of the turn.” (Id. at 3477:4–24) ION’s expert Mr. Brune testified similarly. (Id. at
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`3913:21–24, 3916:4–6) ION’s product literature shows examples with all of the DigiFIN units
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`generating forces in the opposite direction of the turn. (PTX 206 at ION1552 (right); see also id.
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`at ION1551; PTX 45 at WG834, WG837)
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`This testimony confirms the expert opinion
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`of Dr. Triantafyllou, who concluded that
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`ION’s system operates in a turn control
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`mode. (Id. at 1327:4–7, 1327:8–1330:17,
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`1331:3–10)
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`ION argues that because a system
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`could
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`include DigiBIRDs,
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`i.e., depth-
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`10
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`PGS Exhibit 1100, pg. 14
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`leveling devices that do not generate lateral forces, ION cannot infringe because not “all”
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`streamer positioning devices contribute to turning. (D.I. 556 at 11–12) This argument fails for
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`at least three independent reasons. First, neither the claim language nor the Court’s construction
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`requires that all of the “streamer positioning devices” participate in the turn control mode.
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`Rather the Court required only that “streamer positioning device(s),” i.e., one or more, generate
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`the force opposite the turn and that these devices then enter the feather angle mode. (D.I. 120 at
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`45) Mr. Brune, ION’s expert, confirmed this fact. (Trial Tr. at 3913:9–20, 3914:5–10) Second,
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`it is not clear the DigiBIRDs are even “streamer positioning devices” as claimed in the Bittleston
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`patents. As the Court previously noted, a purely depth-control device is likely not within the
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`scope of the claims. (See D.I. 120 at 14) Therefore, the presence or absence of DigiBIRDs is
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`irrelevant. And third, claim 18 of the ’520 patent is a “comprising” claim, i.e., it is infringed if
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`all of the limitations are satisfied even if there are additional elements in the accused product.
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`Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1344–45 (Fed. Cir. 2003). Because
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`ION’s DigiFIN operates in a “turn control mode,” it is irrelevant to the infringement question
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`whether a user additionally attaches DigiBIRD devices to its streamers. ION fails to address the
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`record evidence supporting the jury’s verdict, and instead pushes arguments that disregard the
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`claim language, the Court’s claim construction and the admissions of ION’s own witnesses. The
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`jury’s verdict is amply supported by evidence of infringement, and ION’s motion accordingly
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`must fail.
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`B.
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`ION Infringes Claim 15 Of The ’607 Patent
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`The sole basis for ION’s contention that it does not infringe claim 15 of the ’607 patent is
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`its argument for a new claim construction of “predict”—previously rejected by the Court—that
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`limits “prediction” to future “wall-clock” times. There is no dispute that this limited definition
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`of “predict” is not the plain and ordinary meaning of “predict” to a person of ordinary skill in the
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`11
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`PGS Exhibit 1100, pg. 15
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`art, nor is it the construction the Court reached during claim construction proceedings. It is
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`undisputed that ION infringes under the ordinary meaning of “predict” to one of skill in the art,
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`which fact is dispositive. Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005).
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`i.
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`WesternGeco Presented Considerable Evidence of Infringement
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`WesternGeco’s ’607 patent claims a control system including a “prediction unit,” e.g.,
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`“position predictor software to estimate the actual locations of the [streamer positioning
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`devices].” (PTX 3 at 4:53–55 (emphasis added)) Because the size of the array being
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`steeredleads to delay and error with location measurements, past data is projected forward in
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`time to predict later positions. It is undisputed that ION’s DigiFIN system runs a “Kalman filter”
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`that predicts the actual positions of the DigiFINs in this exact manner. (Trial Tr. at 1549:14–16
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`(“MR. PIERCE: All the -- they keep referring to the prediction in our code, which is a Kalman
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`filter, as Your Honor has heard a lot about.”)) As ION agrees, the Kalman filter “uses a past
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`measurement to ‘predict’ the present position of the DigiFINs.” (D.I. 470 at 8) WesternGeco’s
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`technical experts—Dr Triantafyllou and Dr. Leonard—testified how ION’s Kalman filter
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`predicts the positions of DigiFIN devices. (See, e.g., Trial Tr. at 1273:25–1280:4, 1345:9–
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`1354:13, 1512:2–1523:1) And the record evidence confirms that the term “predict,” as used in
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`the art of control systems, merely means moving a past measured position forward to a later
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`time. (Trial Tr. at 1403:17–19, 1407:8–14, 1408:21–1409:16, 1530:7–13, 1539:11–1540:8) It
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`does not require—nor does it preclude—that the prediction be in the “future” based on a “wall
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`clock.” ION’s expert, Mr. Brune, confirmed this usage of “prediction,” as well as Dr. Leonard’s
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`testimony. (See Trial