`
`
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`___________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`
`PETROLEUM GEO-SERVICES INC.
`and
`ION GEOPHYSICAL CORPORATION
`AND ION INTERNATIONAL S.A.R.L.
`Petitioners
`
`v.
`
`WESTERNGECO LLC
`Patent Owner
`___________________
`
`Case No. IPR2014-006891
`U.S. Patent No. 7,293,520
`
`
`
`
`
`PETITIONER PETROLEUM GEO-SERVICES INC.’S REPLY
`
`
`David I. Berl, Reg. No. 72,751
`Jessamyn S. Berniker, Reg. No. 72,328
`Thomas S. Fletcher, Reg. No. 72,383
`Christopher A. Suarez, Reg. No. 72,553
`WILLIAMS & CONNOLLY LLP
`725 12th St., NW
`Washington, DC 20005
`Telephone:
`202-434-5000
`Fax:
`202-434-5029
`
`Counsel for Petitioner, Petroleum Geo-Services Inc.
`
`
`1 Case IPR2015-00565 has been joined with this proceeding.
`
`
`
`

`

`
`
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ................................................................................... iii
`
`I.
`
`CLAIM CONSTRUCTION ............................................................................ 2
`
`A.
`
`B.
`
`C.
`
`“Control Mode” ..................................................................................... 4
`
`“Streamer Separation Mode” ................................................................ 5
`
`“Feather Angle Mode” .......................................................................... 7
`
`II. WORKMAN (EX. 1004) ................................................................................. 9
`
`A.
`
`The Experts Agree About How Workman Functions—And
`Disagree With WesternGeco. ................................................................ 9
`
`B. Workman Anticipates “Streamer Separation Mode.” ......................... 11
`
`C. Workman is Presumed To Be Enabled and Was Enabled as of
`the Priority Date. ................................................................................. 14
`
`1. WesternGeco Cannot Rebut the Presumption that
`Workman is Enabled. ................................................................ 14
`
`2. WesternGeco’s Eleventh-Hour Evidence is Inapposite. ........... 17
`
`D.
`
`The Claims Do Not Require the Other Features that
`WesternGeco Identifies. ...................................................................... 19
`
`E. Workman Renders a Feather Angle Mode Obvious. .......................... 22
`
`1.
`
`2.
`
`3.
`
`The POSA Must Have Marine Seismic Experience. ................ 22
`
`The Unrebutted Evidence Shows that a POSA Had
`Several Reasons to Implement a Feather Angle Mode. ............ 25
`
`The POSA Could Have Implemented Feather Angle
`Mode. ........................................................................................ 28
`
`4. WesternGeco’s Attacks on Dr. Evans are Baseless. ................. 29
`
`5.
`
`There Is No Credible Evidence of Objective Indicia. ............... 31
`
`III. HEDBERG (EX. 1005) ................................................................................. 36
`
`i
`
`

`

`
`
`A. Hedberg’s Relative Positioning System Anticipates Both
`Modes. ................................................................................................. 36
`
`IV. THIS IPR IS NOT TIME-BARRED ............................................................. 38
`
`V.
`
`CONCLUSION .............................................................................................. 40
`
`
`
`
`
`ii
`
`

`

`
`
`TABLE OF AUTHORITIES
`
`CASES
`
`AllVoice Computing PLC v. Nuance Commc’ns, Inc., 504 F.3d 1236
`(Fed. Cir. 2007) ..................................................................................................... 3
`
`Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313
`(Fed. Cir. 2003) ................................................................................................... 14
`
`Amkor Tech., Inc. v. Tessera, Inc., IPR2013-00242 ................................................ 40
`
`Apple, Inc. v. Achates Reference Publ’g, Inc., IPR2013-00080 .............................. 39
`
`Arthrocare Corp. v. Smith & Nephew, Inc., 406 F.3d 1365
`(Fed. Cir. 2005) ................................................................................................... 19
`
`Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281
`(Fed. Cir. 1985) ................................................................................................... 31
`
`Bristol-Myers Squibb Co. v. Ben Venue Labs., Inc., 246 F.3d 1368
`(Fed. Cir. 2001) ................................................................................................... 15
`
`CSR, PLC v. Skullcandy, Inc., 594 F. App’x 672 (Fed. Cir. 2014) ......................... 38
`
`Daiichi Sankyo Co. v. Apotex, Inc., 501 F.3d 1254 (Fed. Cir. 2007) ................ 23, 24
`
`Facebook, Inc. v. Pragmatus AV, LLC, 582 F. App’x 864
`(Fed. Cir. 2014) ..................................................................................................... 3
`
`Galderma Labs., L.P. v. Tolmar, Inc., 737 F.3d 731 (Fed. Cir. 2013) .................... 27
`
`GE Lighting Solutions, LLC v. AgiLight, Inc., 750 F.3d 1304
`(Fed. Cir. 2014) ..................................................................................................... 7
`
`Gemstar-TV Guide Int’l, Inc. v. ITC, 383 F.3d 1352 (Fed. Cir. 2004) ...................... 3
`
`Google, Inc. v. Whitserve LLC, IPR2013-00249 ....................................................... 7
`
`In re Cuozzo Speed Techs., LLC, 778 F.3d 1271 (Fed. Cir. 2015) ................ 3, 39, 40
`
`In re Schreiber, 128 F.3d 1473 (Fed. Cir. 1997) ..................................................... 11
`
`iii
`
`

`

`
`
`Innovention Toys, LLC v. MGA Entm’t, Inc., 637 F.3d 1314
`(Fed. Cir. 2011) ................................................................................................... 25
`
`Int’l Nutrition Co. v. Horphag Research, Ltd., 220 F.3d 1325
`(Fed. Cir. 2000) ................................................................................................... 40
`
`Kennametal, Inc. v. Ingersoll Cutting Tool Co., 780 F.3d 1376
`(Fed. Cir. 2015) ................................................................................................... 33
`
`Linear Tech. Corp. v. ITC, 566 F.3d 1049 (Fed. Cir. 2009) ...................................... 3
`
`MEHL/Biophile Int’l Corp. v. Milgraum, 192 F.3d 1362
`(Fed. Cir. 1999) ................................................................................................... 20
`
`NTP, Inc. v. RIM, Ltd., 418 F.3d 1282 (Fed. Cir. 2005) .......................................... 20
`
`Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294 (Fed. Cir. 1999) ....................... 4
`
`Shamrock Techs., Inc. v. Med. Sterilization, Inc., 903 F.2d 789
`(Fed. Cir. 1990) ............................................................................................. 39, 40
`
`Taylor v. Sturgell, 533 U.S. 880 (2008) ................................................................... 39
`
`Transclean Corp. v. Jiffy Lube Intern., Inc., 474 F.3d 1298
`(Fed. Cir. 2007) ................................................................................................... 40
`
`United States v. Sine, 493 F.3d 1021 (9th Cir. 2007) .............................................. 32
`
`Zoll Lifecor Corp. v. Philips Elecs. N. Am. Corp., IPR2013-00616 ....................... 38
`
`OTHER AUTHORITIES
`
`37 C.F.R. § 42.100(b) ................................................................................................ 3
`
`154 Cong. Rec. S9987 (Sept. 27, 2008) ................................................................... 40
`
`77 Fed. Reg. 48,759 (2012) ..................................................................................... 39
`
`77 Fed. Reg. at 48760 .............................................................................................. 39
`
`Fed. R. Evid. 105 ..................................................................................................... 18
`
`Fed. R. Evid. 801 ..................................................................................................... 18
`
`iv
`
`

`

`
`
`In instituting this proceeding, the Board concluded preliminarily that the
`
`Workman and Hedberg patents anticipate and render obvious the ’520 patent’s
`
`challenged claims to steering streamers using streamer separation and feather angle
`
`modes. The Board considered and rejected WesternGeco’s interpretations of
`
`Workman, Hedberg, and the challenged claims.
`
`In its Response, WesternGeco (“WG”) barely even attempted to refute the
`
`Board’s finding that, as it construed the claims, Workman anticipates and/or
`
`renders the claims obvious. Rather, WG railed against the Board’s construction of
`
`“streamer separation mode” as “a mode to control separation, or spacing, between
`
`streamers,” seeking to narrow the term to require maintaining a precise distance
`
`between streamers. This narrowing effort is doomed, because (among other
`
`reasons) WG’s own expert agrees with PGS that the specification’s reference to
`
`“desired minimum separations between the seismic streamers”—which cannot be
`
`distinguished from Workman’s disclosure of a mode for establishing “minimum
`
`allowable separations between seismic streamers”—refers to a preferred
`
`embodiment of the claimed streamer separation mode and therefore must be
`
`encompassed within the term’s broadest reasonable interpretation.
`
`WG fares no better with respect to “feather angle mode.” While it sought to
`
`present feather angle mode as a groundbreaking idea that the prior art provided no
`
`reason to implement, the record conclusively shows otherwise. WG’s own expert
`
`1
`
`

`

`
`
`explained that feather angle mode is no different than the straight-and-parallel
`
`configuration that artisans long had considered desirable for numerous reasons,
`
`confirming motivation. As to reasonable expectation of success, WG chose not to
`
`address the analysis of Drs. Evans and Cole that implementation of feather angle
`
`mode would have been straightforward to the POSA, providing no basis
`
`whatsoever for the Board to reverse its initial finding based on their testimony.
`
`As a last resort to save its patent, WG takes a panoply of legally infirm
`
`positions, including (1) construing claim terms in a manner its own expert admits
`
`is inconsistent with the specification, (2) rewriting the prior art, without the support
`
`of its expert, (3) arguing that Workman is not enabled by the steering devices it
`
`references, without considering the steering devices available at the priority date as
`
`legally required, (4) drawing distinctions from the prior art on the basis of features
`
`wholly unmoored from the claim language, (5) failing to show a nexus between its
`
`alleged secondary considerations and the challenged claims, and (6) renewing its
`
`dogged but fruitless search for allegedly unnamed, interested parties. None of
`
`WG’s arguments confront, let alone refute, the Board’s preliminary findings in the
`
`Institution Decision or the evidence on which they were based.
`
`Accordingly, the Board should cancel challenged claims 1, 2, 18 and 19.
`
`I.
`
`CLAIM CONSTRUCTION
`
`Claims in this proceeding are given their “broadest reasonable construction
`
`2
`
`

`

`
`
`in light of the specification.” 37 C.F.R. § 42.100(b); In re Cuozzo Speed Techs.,
`
`LLC, 778 F.3d 1271, 1278-82 (Fed. Cir. 2015). “The broadest reasonable
`
`interpretation of a claim term may be the same as or broader than the construction
`
`of a term under the Phillips standard. But it cannot be narrower.” Facebook, Inc.
`
`v. Pragmatus AV, LLC, 582 F. App’x 864, 869 (Fed. Cir. 2014). Thus, the Federal
`
`Circuit’s canons of claim construction that guard against reading claims too
`
`narrowly apply with equal or greater force in inter partes review proceedings.
`
`Two canons are especially apt here. The Federal Circuit has “repeatedly
`
`held that, even in situations when only one embodiment is disclosed, the claims
`
`generally should not be narrowed to cover only the disclosed embodiments or
`
`examples in the specification.” Linear Tech. Corp. v. ITC, 566 F.3d 1049, 1058
`
`(Fed. Cir. 2009). Provided that the specification is describing a preferred
`
`embodiment, even the statement that a feature is “required” will not justify reading
`
`such a feature into the claims. Gemstar-TV Guide Int’l, Inc. v. ITC, 383 F.3d 1352,
`
`1365-66 (Fed. Cir. 2004). The Federal Circuit has also warned that “each claim
`
`need not include every feature of an invention.” AllVoice Computing PLC v.
`
`Nuance Commc’ns, Inc., 504 F.3d 1236, 1248 (Fed. Cir. 2007). “Rather, a claim
`
`may specify improvements in one function without claiming the entire machine
`
`with its many functions.” Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1303
`
`(Fed. Cir. 1999). These canons resolve this dispute, by precluding WG’s
`
`3
`
`

`

`
`
`interpretation of the claims to require unclaimed features.
`
`“Control Mode”
`
`A.
`Claim 18 (like corresponding method claim 1) is very broad. It reads:
`
`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.
`
`Ex. 1001 at 12:4-10. There is no real dispute that limitation (a) is prior art and that
`
`the asserted references disclose and render obvious limitation (b) as construed
`
`preliminarily by the Board. As a result, WG seeks to narrow limitation (b).
`
`The first dispute concerning limitation (b) is the term “control mode.” That
`
`term is not defined in the specification. PGS submitted the declaration of Dr. Jack
`
`Cole, a mechanical engineer with over 45 years of experience in control systems.
`
`Ex. 1003 ¶¶ 4-17. He explained that in the context of the specification, a control
`
`“mode” is “simply a particular way of operating a device.” Id. ¶¶ 32, 48-49; see
`
`also id. ¶¶ 32-39 (overview and examples of control systems and modes).
`
`WG did not address the meaning of “control mode” in the claim construction
`
`portion of its response or attempt to refute PGS’s construction or the evidence on
`
`which it relied. See Paper 47 (“POR”) at 6-10. Instead, tucked into its discussion
`
`of the prior art, WG mentions in passing that “as used in the ’520 patent, a ‘control
`
`4
`
`

`

`
`
`mode’ refers to a goal-oriented automated configuration,” as if attempting to
`
`construe this term surreptitiously. Id. at 19-20. WG offers no basis for this
`
`construction or explanation of why it constitutes the BRI, much less why PGS’s
`
`broader construction is unreasonable, as it must do to prevail on its narrower
`
`construction. Id.; see also id. at 14. This language of a “goal-oriented” automated
`
`configuration appears nowhere in the specification and, unlike PGS’s construction,
`
`see Ex. 1003 ¶¶ 38-39, 49, does not find support in any contemporaneous evidence.
`
`WG’s only support is its expert’s declaration, which also fails to explain why this
`
`construction is the BRI or why PGS’s broader construction is wrong, let alone
`
`unreasonable. Ex. 2042 ¶¶ 190-191. WG also does not explain why it has urged
`
`this construction, given that the prior art’s control systems all disclose the use of a
`
`“control mode,” even under WG’s improperly narrow construction. See infra II-B.
`
`“Streamer Separation Mode”
`
`B.
`The Board rejected both parties’ original proposed constructions of
`
`“streamer separation mode” as too narrow and construed the term to mean “a mode
`
`to control separation, or spacing, between streamers.” Paper 32 at 13-15.
`
`WG contends that the Board’s construction is unreasonable and that only its
`
`construction—“a control mode that attempts to set and maintain the spacing
`
`between adjacent streamers”—is reasonable. POR at 9-10. WG then construes its
`
`construction of “maintaining” spacing to require “precisely controlling” the
`
`5
`
`

`

`
`
`spacing between streamers, thereby “actively steering” the streamers. Id. at 9, 26.
`
`WG’s construction (as originally articulated or as re-construed) is not the
`
`broadest reasonable one. It is inconsistent with the specification; it excludes one of
`
`streamer separation mode’s preferred embodiments. As the specification explains,
`
`the purpose of streamer separation mode is to avoid streamer tangling, for
`
`example, by imposing a minimum allowable separation. Ex. 1001 at 4:21-25,
`
`10:54-57; Ex. 1002 ¶ 117; Ex. 1091 at 393. Consistent with this objective, the
`
`specification discloses that “[i]n the preferred embodiment of the present
`
`invention, the global control system 22 monitors the actual positions of each of the
`
`birds 18 and is programmed with the desired positions of or the desired minimum
`
`separations between the seismic streamers 12.” Ex. 1001 at 4:21-25 (emphasis
`
`added). Dr. Triantafyllou confirmed the obvious when he agreed that this passage,
`
`which sets “minimum separations” between streamers rather than fixed
`
`separations, “refers to the streamer separation mode.” Ex. 1092 at 549-550. But
`
`according to WG, such a control mode that enforces only a minimum distance
`
`between streamers fails to “set and maintain,” or to “precisely control,” streamer
`
`separation and thus falls outside its proposed construction. POR at 22. WG’s
`
`construction, therefore, would read out what even its own expert agreed is a
`
`preferred embodiment.
`
`The Federal Circuit has strongly admonished that claims should not be
`
`6
`
`

`

`
`
`construed to exclude a preferred embodiment. GE Lighting Solutions, LLC v.
`
`AgiLight, Inc., 750 F.3d 1304, 1311 (Fed. Cir. 2014). Doing so is even more
`
`inappropriate under the BRI standard. Google, Inc. v. Whitserve LLC, IPR2013-
`
`00249, Paper 32 at 12 (PTAB Sep. 9, 2014) (BRI should cover each embodiment
`
`that would reasonably fall within the claim). WG’s construction plainly violates
`
`this basic rule and therefore must be rejected. The Board’s construction, on the
`
`other hand, embraces column 4’s preferred embodiment because “a mode to
`
`control separation, or spacing, between streamers” encompasses a mode that
`
`attempts to enforce a minimum separation. See Paper 32 at 14 (suggesting PGS’s
`
`proposed construction directed to minimum separation was too limiting). The
`
`Board’s construction is broader than WG’s and is reasonable. It should control.
`
`As an apparent fallback, WG argues that maintaining the streamers in
`
`“specific positions” with fixed separations is implied by the Board’s requirement
`
`that streamer separation mode “control separation.” See POR at 9. WG’s gloss on
`
`the Board’s construction is wrong for the same reason: the correct construction of
`
`“streamer separation mode” must embrace the specification’s preferred
`
`embodiments, including the “desired minimum separations” embodiment.
`
`“Feather Angle Mode”
`
`C.
`The Board recognized that the purpose of “feather angle mode” is to attempt
`
`to keep “each streamer in a straight line offset from the towing direction by a
`
`7
`
`

`

`
`
`certain feather angle.” Paper 32 at 12. This derives from the specification’s
`
`express language and depiction of the ideal configuration of a streamer array: each
`
`streamer in a straight line and parallel to each other. Ex. 1001 at 10:29-37, 3:49-
`
`52, Fig. 1. Dr. Evans and Dr. Triantafyllou agreed that “feather angle mode” keeps
`
`the streamers straight and parallel to each other, offset from the towing direction
`
`by a certain feather angle. Ex. 1002 ¶ 113 & n.4; Ex. 1092 at 486-487. Simple
`
`geometry dictates that being parallel and having the same feather angle are two
`
`ways of saying the same thing. Id.
`
`The dispute between the parties is about what determines the feather angle.
`
`WG contends that in addition to keeping the streamers straight and parallel, a
`
`control system in “feather angle mode” must permit the particular feather angle to
`
`be explicitly specified, or “set” in WG’s words. POR at 7-8. But this additional
`
`requirement cannot be part of the definition of “feather angle mode,” or else WG
`
`again would be excluding a disclosed embodiment. While the ’520 patent
`
`discloses one embodiment of “feather angle mode” in which the desired feather
`
`angle is input manually, Ex. 1001 at 10:32-33, it also discloses implementing
`
`feather angle mode “through use of a current meter,” i.e., by measuring the current
`
`causing the streamers to feather. Id. at 10:33. That embodiment “attempts to keep
`
`each streamer in a straight line offset from the towing direction by a certain feather
`
`angle”—consistent with the Board’s construction—but no feather angle is input or
`
`8
`
`

`

`
`
`set. The system steers the streamers to counteract the current and attempts to keep
`
`them straight and parallel without a feather angle being input. Because “feather
`
`angle mode” must be interpreted to include these embodiments, see supra I-A, the
`
`Board’s broadest reasonable construction of “feather angle mode” must be correct,
`
`without the additional limitation that WG seeks to import.2 In any event, the
`
`feather angle claims are invalid under either construction. See infra II-E, III-A.
`
`II. WORKMAN (EX. 1004)
`Workman discloses a system for controlling streamer positions to prevent
`
`tangling. Ex. 1004 at 4:40-46. It sets a “minimum allowable separation” between
`
`streamers—precisely the same as a preferred embodiment of “streamer separation
`
`mode” in the ’520 patent. Compare id. at 3:65-4:3 with Ex. 1001 at 4:21-25.
`
`Workman thus anticipates claims 1 and 18. It also renders claims 2 and 19 obvious
`
`because the POSA would have modified it to implement a “feather angle mode.”
`
`A. The Experts Agree About How Workman Functions—And
`Disagree With WesternGeco.
`
`Drs. Evans and Cole explained in detail how a POSA would understand
`
`Workman’s control system. Ex. 1002 ¶¶ 129-140; Ex. 1003 ¶¶ 77-79. The Board
`
`
`2 WG mischaracterizes the parties’ dispute as whether “the random alignment of
`
`streamers due to weather or ocean conditions could comprise a ‘feather angle
`
`mode.’” POR at 8. That is not, and never has been, PGS’s interpretation.
`
`9
`
`

`

`
`
`also interpreted Workman’s disclosure. Paper 32 at 25-32. Though WG tried to
`
`advance a contrary interpretation of Workman, even its own expert agreed with
`
`PGS, Drs. Cole and Evans, and the Board in rejecting WG’s interpretation.
`
`For example, the Board observed that Figure 1 of Workman shows streamer
`
`positioning devices (14) (“SPDs”) with location sensing devices (15) attached to or
`
`specifically associated with them. IPR2014-00688, Paper 33 at 24. WG disputed
`
`that Workman could determine where the SPDs are in order to steer them, because
`
`“there is no indication that the location sensors 15 are associated with the streamer
`
`positioning devices 14,” and the Board’s reliance on the figure “was in error.”
`
`POR at 13-14. WG’s expert disagreed; he agreed with PGS and the Board:
`
`So that the location sensors, 15, are associated with the
`Q:
`streamer positioning devices, 14?
`A:
`That’s how it’s shown.
`
`Ex. 1091 at 414:11-13; see also id. at 413:2-414:10.
`
`Figure 2 of Workman shows that the information generated by these devices
`
`is sent to the network solution system, which uses a Kalman filter to output real-
`
`time estimates of the shapes and positions of the streamers. Ex. 1004 at 3:46-51.
`
`This supports the Board’s preliminary finding that Workman’s system can
`
`“discern” the positions of streamer cables. Paper 32 at 30. WG disagreed
`
`emphatically, arguing that Workman “cannot” discern the positions of the
`
`streamers. POR at 32. But Dr. Triantafyllou again sided with the Board and PGS,
`
`10
`
`

`

`
`
`testifying that Workman’s system is able to “output some estimate of the curve or
`
`the line of the streamer.” Ex. 1091 at 455-57. These are not isolated examples.
`
`Dr. Triantafyllou simply was unable or unwilling to defend the interpretation of
`
`Workman that WG advanced in its Response. Compare POR at 23 (“the system
`
`will do nothing”) with Ex. 2042 ¶ 103 (“a force is applied”); compare POR at 25
`
`(Workman steers only in “emergent situations”) with Ex. 1091 at 392-393
`
`(Workman’s steering “is not limited to emergent situations”).
`
`B. Workman Anticipates “Streamer Separation Mode.”
`Dr. Evans analyzed in detail how Workman’s control system maps onto the
`
`“streamer separation mode” recited in claims 1 and 18. Ex. 1002 ¶¶ 129-140. WG
`
`raises three objections to that analysis, none of which have merit.
`
`1. WG’s primary argument is that “Workman is concerned with noise
`
`minimization rather than [with] generating noise” by controlling birds. POR at 19.
`
`Even if true, this would be irrelevant, because a reference that discloses a claimed
`
`invention anticipates, regardless of what purpose it discloses. In re Schreiber, 128
`
`F.3d 1473, 1477 (Fed. Cir. 1997). But it is not true. Workman expressly discloses
`
`“an improved system for controlling the position and shape of marine seismic
`
`streamers,” Ex. 1004 at 1:7-9, and thus has the exact same goal as the ’520 patent.
`
`To be sure, Workman acknowledges that “the use of streamer positioning
`
`devices comes at the price of introducing increased noise on the seismic streamer
`
`11
`
`

`

`
`
`and hence into the hydrophones.” Id. at 1:62-64. If Workman were directed to
`
`minimizing noise, it would not introduce noise by using SPDs. Workman does not
`
`suggest that there should be no steering—it plainly steers using SPDs—but rather
`
`suggests that steering should be performed in a manner that considers the cost of
`
`noise. Id. at 4:36-40, 5:14-28. In this respect as well, Workman aligns with the
`
`’520 patent, which discloses the same thing. Ex. 1001 at 4:40-53; infra II-E-2.
`
`WG likewise asserts that “if the noise level is too high, the [Workman]
`
`system will do nothing,” POR at 23, but even its own expert disagrees and
`
`recognizes that, in certain circumstances, such as when streamers are too close and
`
`risk tangling (which both Workman and the ’520 patent’s streamer separation
`
`mode seek to avoid, Ex. 1001 at 10:54-57), streamers are steered irrespective of
`
`noise. Ex. 1004 at Fig. 3 & 4:40-51; Ex. 2042 ¶ 103; Ex. 1091 at 391-392.
`
`2. WG claims that Workman “does not disclose any modes.” POR at 20.
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`This argument relies on WG’s sotto voce construction of “control mode” as “a
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`goal-oriented automated configuration,” addressed in Section I-A. But even that
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`improper construction provides no basis to distinguish Workman. WG argues that
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`Workman discloses a “single, static loop using manually input threshold
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`parameters, as shown in Figure 3.” Id. This “loop” plainly is an automatic process
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`oriented toward the goal of remaining within the system’s threshold parameters,
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`thereby satisfying WG’s new construction. Ex. 1002 ¶¶ 135-37. The process
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`begins with setting the minimum allowable separation threshold, either before or
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`during the survey. Ex. 1004 at 3:65-4:8; Ex. 1002 ¶¶ 137-138. The streamer
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`control processor then continuously checks whether that minimum allowable
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`separation is violated—if it is, the processor calculates a position correction and
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`sends it to the streamer device controller. Ex. 1002 ¶ 138; Ex. 1004 at Fig. 3. That
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`Workman allows manual input of the threshold parameter does not make the
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`process any less automatic. Nor can it be a point of distinction, as the ’520 patent
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`permits control mode parameters like a desired feather angle to be input manually
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`and even claims manual input as a distinct feature. Ex. 1001 at 10:32-34, 11:22-23.
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`3. WG argues that Workman does not disclose a “streamer separation
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`mode.” POR at 20-23. But even WG concedes that Workman discloses a system
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`that “repositions streamers” when they “get too close to each other and violate a
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`threshold.” Id. at 20. Nothing more is required under the Board’s construction of
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`“streamer separation mode”—Workman discloses “a mode to control separation,
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`or spacing, between streamers.” Supra II-B. A preferred embodiment of streamer
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`separation mode in the ’520 patent operates using the identical threshold—“the
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`desired minimum separation between the seismic streamers.” Ex. 1001 at 4:21-25.
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`Ignoring Workman’s nearly in haec verba description of streamer separation mode,
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`WG seeks to avoid the ineluctable finding of anticipation by grafting limitations
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`onto the Board’s use of the word “control.” POR at 22. According to WG,
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`Workman does not “control” the separation between streamers because it allows
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`them to drift between the minimum separation and “the limits of physics.” Id.
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`WG’s hyperbole about “the limits of physics” is belied by the ’520 patent’s
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`background section, which acknowledges that the prior art deflector and tail buoy
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`“create tension forces on the streamer which constrain the movement of the
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`streamer and cause it to assume a roughly linear shape.” Ex. 1001 at 1:42-47.
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`That aside, “control” in the Board’s construction does not require anything more
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`than setting a minimum separation—which Workman discloses.
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`C. Workman is Presumed To Be Enabled and Was Enabled as of the
`Priority Date.
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`WG, the assignee of the Workman patent, argues that it cannot anticipate
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`because it does not enable “a working lateral steering system” with “a streamer
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`positioning device.” POR at 32; Paper 72 at 30-32. The prior art Workman patent
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`is presumed to be enabled, and WG bears the burden of rebutting that presumption.
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`Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1355 (Fed. Cir. 2003).
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`WG’s legally and factually flawed arguments cannot do so.
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`1. WesternGeco Cannot Rebut the Presumption that
`Workman is Enabled.
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`1. WG’s argument is premised on a basic legal error. WG and its expert
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`admittedly addressed only the question of whether the particular SPDs referenced
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`in Workman could be used to practice its lateral steering; they did not address
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`whether SPDs from prior art references not cited in Workman enabled its lateral
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`steering. Ex. 2042 ¶¶ 150-162; Ex. 1092 at 471; Paper 72 at 30-32. WG did so on
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`the basis of its assertion, without any citation, that “for purposes of anticipation,
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`reliance upon these additional references in an attempt to cure Workman’s
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`deficiencies is improper.” IPR2014-00688, Paper 48 at 34. That is wrong. It is
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`settled law that while an anticipatory reference must disclose every limitation of a
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`claim, “enablement of an anticipatory reference may be demonstrated by a later
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`reference.” Bristol-Myers Squibb Co. v. Ben Venue Labs., Inc., 246 F.3d 1368,
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`1379 (Fed. Cir. 2001). Whether an anticipating reference is enabled is assessed as
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`of the priority date of the challenged patent (here October 1, 1998), not the date of
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`the prior art reference. See id. Accordingly, the proper enablement analysis
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`cannot be limited to SPDs referenced in Workman’s specification.
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`As to the legally relevant question of whether Workman’s lateral steering
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`could be practiced using birds from any prior art reference, the record compels the
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`finding that Workman is enabled. Drs. Evans and Cole had explained that the ’636
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`PCT’s prior art birds published after Workman could have been used to practice
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`Workman’s lateral positioning. Ex. 1002 ¶¶ 82-84; Ex. 1003 ¶¶ 67-69. Neither
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`WG nor its expert dispute that these birds would have enabled Workman’s control
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`system. See Ex. 2042 ¶¶ 150-162; Ex. 1092 at 598. Nor could WG dispute this, as
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`the ’520 patent itself relies on the prior art ’636 birds rather than disclosing its own
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`laterally steerable birds. See Ex. 1001 at 1:66-2:4, 5:34-44; Ex. 1092 at 597. On
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`this record, WG’s assertion that Workman is not enabled fails as a matter of law.
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`2.
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`Limiting their criticism to the SPDs cited in Workman, Ex. 2042 ¶¶
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`151-162, WG and Dr. Triantafyllou also do not contest Dr. Evans’ testimony that
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`there existed by the 1970s SPDs that could be used to steer streamers laterally. Dr.
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`Evans explained how various SPDs that predated (but were not discussed in)
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`Workman, such as the device disclosed by Weese (Ex. 1007), could control a
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`streamer’s horizontal position. Ex. 1002 ¶¶ 49-53, 59-66, 78-88. Dr. Triantafyllou
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`nowhere disputed Dr. Evans’ testimony concerning Weese’s devices, even though
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`he considered the reference. See Ex. 2042, Ex. C at 1. And while he criticizes the
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`Waters (Ex. 1032) devices discussed in Workman as having “