435220US
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`———————————
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`PETROLEUM GEO-SERVICES INC.
`Petitioner
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`v.
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`WESTERNGECO LLC
`Patent Owner
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`———————————
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`Case IPR2014-00689
`U.S. Patent No. 7,293,520
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`———————————
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`PATENT OWNER PRELIMINARY RESPONSE
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`Pursuant to 37 C.F.R. § 42.107(a), Patent Owner, WesternGeco L.L.C
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`(“WesternGeco” or “Patent Owner”), submits this Preliminary Response to the
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`Petition for Inter Partes Review (“Petition”) of U.S. Patent No. 7,293,520 (the
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`“’520 patent”) filed by Petitioner, Petroleum Geo-Services, Inc. (“PGS” or
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`“Petitioner”).
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`Case IPR2014-00689
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`TABLE OF CONTENTS
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`I.
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`II.
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`The ’520 Patent Claims Precision Control of Steerable Seismic Arrays ........ 1
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`Petitioner Partnered With ION to Copy the ‘520 Patent ................................. 4
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`III. The Petition Need Not Be Considered on the Merits ...................................... 5
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`A.
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`B.
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`The Petition is Time-Barred under 35 U.S.C. § 315(b) ........................ 5
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`The Petition Fails to Name All Real-Parties In Interest ........................ 9
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`1.
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`2.
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`3.
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`PGSAI Is an Unnamed RPI ......................................................... 9
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`ION Is an Unnamed RPI ........................................................... 12
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`ION Is a Privy Regarding Validity of the ‘520 Patent .............. 15
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`IV. Claim Construction ........................................................................................ 17
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`A.
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`B.
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`C.
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`D.
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`E.
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`Streamer Positioning Device ............................................................... 17
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`Array of Streamers .............................................................................. 23
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`Feather Angle Mode ............................................................................ 25
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`Turn Control Mode .............................................................................. 26
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`Streamer Separation Mode .................................................................. 28
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`V.
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`The Board Should Not Institute Inter Partes Review of the ’520
`Patent ............................................................................................................. 32
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`VI. Redundancy of Petitioner’s Grounds ............................................................. 33
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`VII. Petitioner’s Grounds For Instituting IPR Fail To Show A Reasonable
`Likelihood That The ’520 Patent is Anticipated Or Obvious ....................... 36
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`A. Grounds 1 and 2: Workman Neither Anticipates Nor Renders
`Claims 1, 2, 18 or 19 Obvious ............................................................. 36
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`1. Workman Does Not Disclose any of the Control Modes
`Recited in Claims 1 and 18 ....................................................... 36
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`2. Workman Does Not Render the “Streamer Separation
`Mode” or “Feather Angle Mode” of Claims 1, 2, 18 and
`19 Obvious ................................................................................ 39
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`B.
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`C.
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`Grounds 3 and 4: Hedberg Fails to Disclose or Render Obvious
`“An Array of Streamers Each Having a Plurality of Streamer
`Positioning Devices There Along,” “Streamer Separation
`Mode” or “Feather Angle Mode” as recited in Claims 1, 2, 18
`and 19 .................................................................................................. 42
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`Ground 5: No Reasonable Combination of the ‘636 PCT and
`the ‘153 PCT Discloses or Renders Obvious a “Turn Control
`Mode” as Recited in Claims 1, 6, 18 and 23 ....................................... 47
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`D. Ground 6: No Reasonable Combination of the ‘636 PCT and
`Dolengowski Discloses or Renders Obvious a “Turn Control
`Mode” as Recited in Claims 1, 6, 18 and 23 ....................................... 51
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`E.
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`The Petition Is Legally Insufficient Because Petitioner Fails to
`Address the Secondary Indicia of Non-Obviousness .......................... 52
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`VIII. Conclusion ..................................................................................................... 54
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`I.
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`The ’520 Patent Claims Precision Control of Steerable Seismic Arrays
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`The ’520 patent, titled “Control System for Positioning of Marine Seismic
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`Streamers,” relates to the field of marine seismic surveying. Marine seismic
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`surveys use reflections of sound waves to analyze underwater natural resource
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`formations. Seismic streamers are cables up to many miles in length that are towed
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`behind survey vessels. An acoustic source, such as an air gun, is used to generate
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`an acoustic signal towards the ocean floor. Seismic sensors, such as hydrophones,
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`are spaced along the length of each streamer and are used to detect the reflected
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`acoustic signal. The resulting data can be used to map the subsurface geology for
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`natural resource exploration and management.
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`Historically, a single streamer was towed behind the ship for a few hundred
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`meters. This yielded a short cross-section or “2-D” image of the subsurface
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`geology. As the industry evolved, arrays of multiple side-by-side streamers have
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`been deployed, allowing the capture of more robust “3-D” maps—as Petitioner’s
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`art shows, some of these approaches date back to 1967. The complexity of these
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`streamer arrays led to several widely acknowledged, decades-old problems,
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`including the risk of tangling, a potentially catastrophic and dangerous failure.
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`(Ex. 1001, 4:7-10.) Movement of the streamers relative to each other during
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`surveys can lead to gaps in coverage, requiring repeated passes, or “in-fill,” over
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`the same section of water. And turning such long arrays in the water can take
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`significant time and effort, and likewise increases the risk of tangling. Despite a
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`well-known need for the ability to accurately steer these arrays, the complex nature
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`of the problem prevented a workable solution from being developed for many
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`years. It was not until 2000 that WesternGeco (Patent Owner) launched the
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`industry’s first steerable streamer system.
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`Early streamer positioning involved rudimentary devices such as deflectors
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`and tail buoys. (Ex. 1001, 3:43-45.) Deflectors were attached to the front end of
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`the streamer and used to horizontally spread the end of the streamer nearest the
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`seismic survey vessel. (Ex. 1001, 3:45-47.) The tail buoy created drag on the end
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`of the streamer farthest from the seismic survey vessel. (Ex. 1001, 3:47-49.) The
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`tension created on the seismic streamer due to the deflector and tail buoy resulted
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`in a roughly linear shape of the streamer. (Ex. 1001, 3:49-52.) No steering was
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`provided for the miles of length along the streamer.
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`Although the need for control systems for streamer steering was known for
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`years, no one in the industry had succeeded in developing the capability of
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`streamer steering along the length of the streamer prior to the ’520 patent. This
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`was due to the challenges in constructing a functioning system capable of
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`controlling hundreds of positioning devices at once, as well as designing the
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`devices themselves.
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`Streamer positioning devices are generally spaced every 200 to 400 meters
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`along the length of a streamer. (Ex. 1001, 3:56-58.) For a modest streamer array,
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`this means hundreds, sometimes over a
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`thousand, separate streamer positioning devices
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`are deployed on a given array. Simultaneously
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`controlling this multitude of independent
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`positioning devices is no mean feat. While it is
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`easy to set a target depth and little risk exists if
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`that depth is overshot, lateral steering requires
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`considerations of the dynamic movement of
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`neighboring streamers and obstructions along
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`miles of cable deployed in the ever-changing
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`open-water environment of the deep seas.
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`Unless properly controlled, lateral steering can
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`make streamer arrays more dangerous than no
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`steering at all, and Petitioner’s art taught away
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`from even trying.
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`To properly control the horizontal
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`positions of streamer positioning devices, the
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`control system needs to know where they are.
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`As explained in the Background section of the ’520 patent, prior art seismic
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`array controllers typically allow for the determinations of horizontal positions of
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`the streamers only every 5 to 10 seconds. And because complex data processing is
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`often involved, there may be an additional 5-second delay between the taking of
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`measurements and the determination of actual streamer positions. That means the
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`information provided to the control system is not where the streamer positioning
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`device currently is, but where the streamer positioning device was at some time in
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`the past. Trying to steer such streamer arrays with prior art control systems is
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`therefore even more difficult as, to a certain extent, they have to be steered blind.
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`The ’520 patent tackled these control challenges to launch the world's first
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`precision control system for steerable streamer arrays.
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`II.
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`Petitioner Partnered With ION to Copy the ‘520 Patent
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` And the development documents echo the ‘520 patent’s claimed
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`control modes such as “even separation mode” and “line change [i.e., turn] mode.”
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`(Ex. 2005, ION15987-93.)
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`III. The Petition Need Not Be Considered on the Merits
`A. The Petition is Time-Barred under 35 U.S.C. § 315(b)
`Patent Owner filed a complaint for patent infringement against ION on June
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`12, 2009 alleging, inter alia, that ION infringed the ’520 patent by virtue of
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`making, using or selling DigiFIN. (Ex. 2007.) Patent owner then filed a complaint
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`against Fugro for its related infringement as an ION DigiFIN customer, which was
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`consolidated with ION. (Ex. 2037.) On December 8, 2009, Patent Owner noticed
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`Petitioner of its related infringement liability for using DigiFIN by providing it
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`with a copy of the complaint. (Ex. 2008.) When Petitioner did not cooperate with
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`providing litigation discovery, Patent Owner subpoenaed Petitioner through service
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`of process on January 22, 2010 and identified “DigiFIN” as the accused product in
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`the litigation. (Ex. 2009 [service copy with affidavit].) And in a subsequent
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`motion to compel discovery, Patent Owner identified Petitioner as one of the ION
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`“customers who assemble [DigiFINs] into infringing systems either within the
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`United States or abroad.” (Ex. 2010, ION D.I. 81)
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`On February 8, 2010, after being served with process, Petitioner appeared in
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`the ION litigation through its outside counsel, Heim, Payne & Chorush. (Ex.
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`2011.) On March 14, 2011, Patent Owner filed its Amended Complaint alleging
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`DigiFIN’s infringement of the ‘520 patent. (Ex. 2012.) Petitioner was served with
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`this Amended Complaint that same day via the court’s electronic filing system
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`(“ECF”). See Ex 2013; see also Ex. 2033, S.D. Tex. L.R. 5-1 (“The notice of
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`electronic filing that is automatically generated by the Court's electronic filing
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`system constitutes service of the document on those registered as filing users of the
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`system.”).
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`“An inter partes review may not be instituted if the petition requesting the
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`proceeding is filed more than 1 year after the date on which the petitioner, real
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`party in interest, or privy of the petitioner is served with a complaint alleging
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`infringement of the patent.” 35 U.S.C. § 315(b). (emphasis added). “The word
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`‘served’ has a definition that include ‘to make legal delivery of (a notice or
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`process)’ or ‘to present (a person) with a notice or process as required by law.”
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`Motorola Mobility LLC v. Arnouse, IPR2013-00010 (MT), Paper #20 at 4, (quoting
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`Black’s Law Dictionary, 1491, Ninth Edition (2009)). “Served” as used in 35
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`U.S.C. § 315 means this legally operative act, rather than the colloquial “’to
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`receive,’ ‘to deliver,’ or ‘to present.” Id. at 3; see also TRW Automotive US LLC v.
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`Magna Elecs., Inc., IPR2014-00251, Paper # 13 (finding that email did not
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`comprise legal “service”). Interpreting “served” in accordance with Black’s Law
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`Dictionary is in accord with the legislative purpose of § 315(b), “to provide
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`defendants sufficient time to fully analyze the patent claim, but not to create an
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`open-ended process.” Motorola, Paper #20 at 4 (citing legislative history). Patent
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`Owner’s service of the Amended Complaint on Petitioner was legal “service,” and
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`therefore satisfies § 315(b). 1
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`1 In dicta, Motorola implies that service of a summons is also required. This
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`requirement is contrary to the plain language of § 315(b). Motorola’s
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`discussion was based in part on Fed. R. Civ. Pro. 4, but that Rule is titled
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`“Summons” and concerns only when service of a summons is effective, not
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`It was unusual for Petitioner to be served with process, appear in litigation,
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`and be served with an infringement complaint, yet not be a named defendant in the
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`ION litigation. But the plain language of § 315(b) does not require that Petitioner
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`be a defendant, Applying the legally-operative definition of “served,” § 315(b) is
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`limited, as here, to situations where the Petitioner has entered an appearance in the
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`litigation and is actively involved, i.e., because they are interested in the
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`infringement. Should the policy behind 315(b) be considered here, it favors this
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`service of a complaint. Motorola also relied on Murphy Bros. v. Michetti Pipe
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`Stringing, 526 U.S. 344 (1999). Id. at 3. But Murphy addressed removal under
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`28 U.S.C. § 1446, which concerned receipt “through service or otherwise, of a
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`copy of the initial pleading,” and the Court was concerned that the “or
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`otherwise” provision was too broad to trigger legal consequence in the absence
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`of due process notification. 526 U.S. at 347, 350. In ION, in contrast,
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`Petitioner was served with process and formally appeared. See Murphy at 1327
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`(“Accordingly, one becomes a party officially, and is required to take action in
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`that capacity, only upon service of a summons or other authority-asserting
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`measure.”). In other words, PGS was “brought under a court’s authority, by
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`formal process” before being served with the amended complaint, satisfying
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`any due process concerns . Id. at 347.
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`plain language reading—once parties identified as liable for infringement are
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`served pursuant to formal legal process, they should promptly seek IPR rather than
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`lay-in-wait and engender duplicative proceedings years down the road.
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`The April 23, 2014 Petition filed by PGS is precluded by the plain language
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`of 35 U.S.C. § 315(b)—it is years overdue. Petitioner was not only “served with a
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`complaint alleging infringement of the [’520] patent” on March 14, 2011, but its
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`specific liability for infringement from DigiFIN was outlined therein. Therefore,
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`no review may be instituted based on this Petition.
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`The Petition Fails to Name All Real-Parties In Interest
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`B.
`As the Board is aware, disputes regarding identifying real-parties in interest
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`(“RPIs”) have already permeated these proceedings. Petitioner initially identified
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`no RPIs in its Petition. After discovery proceedings before the Board, Petitioner
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`amended its disclosures and added PGSAS and Petroleum Geo-Services ASA as
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`RPIs, receiving a new filing date and resetting the schedule for these proceedings.
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`Patent Owner then requested, and received, additional RPI discovery from
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`Petitioner. Based on the record adduced to date, two defects still taint Petitioner’s
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`disclosures and preclude consideration of the Petition under 35 U.S.C. § 312(a)(2).
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`1.
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`PGSAI Is an Unnamed RPI
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` ION contacted Mr. Hart in 2011
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`to discuss the ION litigation, the ‘520 patent, and using an inventor deposition to
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`try to invalidate the patent. (Ex. 2015, PGSI-T2725-WG-46640) Mr. Hart
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`attended the 2012 ION trial, discussed the invalidity of the ‘520 patent with ION’s
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`trial counsel, and obtained prior art and invalidity contentions for Petitioner’s trial
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`counsel. (Ex. 2016.) Mr. Hart retained trial counsel on behalf of Petitioner and
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`PGSAS. (Ex. 2017.) Petitioner recently identified various emails, calls and
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`meetings regarding the validity of the ‘520 patent in which Mr. Hart acted as “PGS
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`[i.e., Petitioner] in-house counsel” or otherwise “on behalf of ‘PGS/Irell’ (Irell &
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`Manella LLP is PGS’ trial counsel).” (Ex. 2018.) In short, Mr. Hart, i.e., PGSAI,
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`controlled the review, dissemination and discussion of the prior art that was
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`presented in the Petition.
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`)2 In other words, unnamed PGSAI controlled Petitioner’s DigiFIN
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`activities and those of the named RPIs. (Petitioner has so far refused to reveal
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`whether PGSAI likewise controlled the retention or invoices for Petitioner’s
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`counsel in this proceeding. (Ex. 2018, Interrogatory Responses at 11-12))
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`Because PGSAI’s counsel is controlling PGS’ interests in the validity and
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`infringement of the ‘520 patent, PGSAI is an RPI. Because Petitioner has failed to
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`identify PGSAI as such, the Petition is deficient and cannot be considered. 35
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`U.S.C. § 312(a)(2).
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`Patent Owner invited Petitioner to amend its disclosures to identify PGSAI
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`as an RPI and to “discuss a modest adjustment of the existing opposition schedule
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`based on the new filing date.” (Ex. 2025.) Petitioner refused.3 Accordingly, the
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`Petition must be dismissed.
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`2 In the pending litigation between Petitioner and Patent Owner, Petitioner
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`similarly transferred PGSAI’s patents to Petitioner on the eve of its
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`counterclaims so that Petitioner could assert PGSAI’s infringement claims in
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`Petitioner’s name. (Ex. 2024.) For whatever reasons, Petitioner has expended
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`considerable effort attempting to hide PGSAI from these various proceedings.
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`3 On the eve of this Opposition, Petitioner produced a vague “Human Resources”
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`memorandum stating that PGSAI’s employees were “transferred” to Petitioner
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`2.
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`ION Is an Unnamed RPI
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`Petitioner and ION have coordinated efforts across multiple forums to
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`promote their joint interests regarding the ‘520 patent. Shortly after infringement
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`allegations were raised against the two entities, ION reached out to Petitioner to
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`coordinate on its attempt to invalidate the ‘520 patent:
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`Speaking plainly, several PGS employees previously worked for
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`WesternGeco . . . One of these gentlemen, Mr. Hillesund, is a named
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`inventor of the WesternGeco patents . . . ION intends to depose Mr.
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`Hillesund and others . . . ION would be very interested in discussing
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`on January 1, 2013. (Ex. 2026.) This “memo” is irrelevant to PGSAI’s role
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`prior to that date, and there is no indication that Mr. Hart stopped representing
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`PGSAI after that date. Mr. Hart never notified ION of any change to their
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`express agreement that he represented only PGSAI in dealings concerning the
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`validity of the ‘520 patent. And there is no indication that Mr. Hart believed he
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`was representing anyone other than PGSAI. PGSAI still exists as an
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`independent corporation today, and if “all employees” were transferred out of it
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`last year then other PGS employees--like Mr. Hart--must still be representing
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`PGSAI’s interest and acting on its behalf.
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`mutually beneficial opportunities to improve our access to PGS
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`employees . . . It is our belief that such testimony will help, at least,
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`to invalidate the WesternGeco patents.
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`(Ex. 2015)
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`ION’s attempts to protect Petitioner’s rights to use DigiFIN comprised
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`multiple invalidity attacks at trial, including many arguments similar to those
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`raised in the Petition. Petitioner attended the trial at ION’s invitation, and raised
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`comments and questions regarding the same between their respective counsel
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`during those proceedings. (Ex. 2016.) During this period, Petitioner began
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`claiming a “common interest privilege” over its communications with ION
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`regarding “WG litigation” and “litigation interests.” (Ex. 2028.) Petitioner has
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`based this privilege assertion on “Western[Geco]’s litigiousness on the subject of
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`DigiFIN gives rise to a common legal interest regarding the patent infringement
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`assertions.” (Ex. 2029.) And Petitioner is currently arguing in the district court
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`litigation that ION’s trial arguments and damages now protect Petitioner from any
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`infringement liability. (Ex. 2030.)
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`ION’s invalidity arguments failed at trial, and ION filed a notice of appeal
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`and docketing statement indicating that it would appeal those issues. (Ex. 2031.)
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`Petitioner continued to meet with ION to discuss specific references and invalidity
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`theories, and potential arguments to raise in these proceedings. (Ex. 2018.)
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`Petitioner has refused to produce the majority of these communications through its
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`continued invocation of a common interest privilege. (Ex. 2030) But now that
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`Petitioner has challenged the validity of the ‘520 patent, ION has dropped that
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`issue from its pending appeal, apparently relying on potential collateral effects of
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`Petitioner’s current efforts under a lessened burden instead.4
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`This web of interlaced interests and unified legal efforts regarding the ‘520
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`patent, infringement liability therefor and the validity thereof, renders ION and
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`Petitioner real-parties-interest with respect to this Petition. Petitioner and ION
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`have coordinated their invalidity attacks against WesternGeco’s patents and are
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`each relying on the collateral effects of the other’s legal proceedings to protect
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`4 Conversely, ION has filed an opposition to WesternGeco’s EPO counterpart to
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`the ‘520 patent, whereas Petitioner has not, apparently piggy-backing on ION’s
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`efforts in that forum.
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`their own interests. Notably, Petitioner’s invocation of a common interest
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`privilege under 5th Cir. law is limited to actual or “potential co-defendants.” In re
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`Santa Fe, 272 F.3d 705, 711 (5th Cir. 2001). This jibes with the PTAB Practice
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`Guide, which notes that to establish an RPI relationship, “it should be enough that
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`the nonparty has the actual measure of control or opportunity to control that might
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`reasonably be expected between two formal coparties.” PTAB Trial Practice
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`Guide at 48759. ION’s involvement with the Petition is at least as comprehensive
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`as if ION and Petitioner were formal codefendants--and arguably significantly
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`more given ION’s ultimate responsibility for Petitioner’s infringement liability and
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`ION’s role as the source for references and arguments for the Petition. ION is an
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`unnamed RPI, and also was served with an infringement complaint more than one
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`year prior to the Petition. The Petition therefore fails under both § 312(a)(2) and §
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`315(b), and need not be considered on the merits.
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`ION Is a Privy Regarding Validity of the ‘520 Patent
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`3.
`If not a real-party in interest, ION is at least in privity with Petitioner and
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`other real-parties in interest regarding the validity of the ’520 patent:
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`• ION and Petitioner share the same interests regarding the validity of the
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`‘520 patent. (Ex. 2016 (2011 email discussing “mutually beneficial
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`opportunities . . . to invalidate the WesternGeco patents”)).
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`•
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`• ION and Petitioner invoked a common-interest privilege beginning in
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`2012 regarding their discussions and cooperation regarding the ‘520
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`patent, the ION litigation and the Petition. (Ex. 2029)
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`• Petitioner has relied on ION to represent Petitioner’s substantive interests
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`in the ION litigation and appeal. (Ex. 2032 at 1, n1. (representing that
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`“reversal or remand on substantive patent grounds [in ION] would curtail
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`or extinguish Western’s claims against ION, and by extension, Geo [i.e.,
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`Petitioner PGS].”))
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`Additionally, as discussed above, ION and Petitioner having been
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`cooperating and coordinating regarding the validity of WesternGeco’s patents
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`across multiple forums for years, evidencing their respective control over, and use
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`of each other as a proxy regarding validity challenges. Petitioner has gone so far
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`as to invoke res judicata based on the ION litigation, reinforcing its belief that its
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`interests regarding, inter alia, the validity of the ‘520 patent were already full
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`represented and litigated by ION from 2009-12. (Ex. 2032.) ION is a privy with
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`regard to the validity of the ‘520 patent and, because ION was served with an
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`infringement complaint in 2009, the Petition is time barred under § 315.
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`IV. Claim Construction
`If the merits are addressed, Patent Owner disagrees with each of the claim
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`interpretations advanced in the Petition. However, the Board’s decision to institute
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`inter partes review of the ’520 patent turns on the interpretation of only five terms
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`– “streamer positioning device,” “array of streamers,” “streamer separation mode,”
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`“feather angle mode,” and “turn control mode.” As such, for the purposes of this
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`response, Patent Owner’s remarks are limited to the proper interpretation of these
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`five terms as they are used in challenged claims.
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`Streamer Positioning Device
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`A.
`Consistent with the statute and legislative history of the Leahy-Smith
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`America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011) (“AIA”), the Board
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`interprets claims using the “broadest reasonable construction in light of the
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`specification of the patent in which [they] appear[].” 37 C.F.R. § 42.100(b); see
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`also Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14,
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`2012). There is a “heavy presumption” that a claim term carries its ordinary and
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`customary meaning. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366
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`(Fed. Cir. 2002). However, a “claim term will not receive its ordinary meaning if
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`the patentee acted as his own lexicographer and clearly set forth a definition of the
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`disputed claim term in either the specification or prosecution history.” Id.
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`The broadest reasonable construction of “streamer positioning device” is “a
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`device that controls at least the lateral position of a streamer as it is towed.” This
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`construction comports with the ordinary meaning of the term—a “streamer
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`positioning device” is a device to control positioning, or spacing—as well as the
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`teachings of the specification.
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`The specification teaches that accurate horizontal (lateral) positioning of
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`streamers is a key goal of the invention: “using properly controlled horizontally
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`steerable birds can include reducing horizontal out-of-position conditions that
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`necessitate reacquiring seismic data in a particular area (i.e., in-fill shooting). . . .
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`An advantage of the present invention is that the position of the streamers may be
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`better controlled, thereby reducing the need for in-fill shooting. . . .” (Ex. 1001,
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`2:59-61.) “In the preferred embodiment of the present invention, the global control
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`system 22 monitors the actual positions of each of the birds 18 and is programmed
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`with the desired positions of or the desired minimum separations between the
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`seismic streamers 12.” (Ex. 1001, 4:21-25.) In light of the specification, which
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`discloses a “regular horizontal spacing configuration” as part of the “detailed
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`description of the invention,” a person of ordinary skill in the art would understand
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`the “desired minimum separations” to comprise the “regular horizontal spacing,”
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`i.e., to involve controlling the spacing between streamers, for example, by setting
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`their positions or the desired separations between them. (Ex. 1001, 3:32-41.)
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`The specification emphasizes that “[t]o get better control of the streamers
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`12, horizontal steering becomes necessary.” (Ex. 1001, 4:10-11.) “The benefits
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`that can be obtained by using properly controlled horizontally steerable birds can
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`include reducing horizontal out-of-position conditions that necessitate reacquiring
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`seismic data in a particular area (i.e. in-fill shooting) . . . . It is estimated that
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`horizontal out-of-position conditions reduce the efficiency of current 3D seismic
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`survey operations by between 5 and 10% . . . ” (Ex. 1001, 2:4-16.)
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`In the context of the specification, in language referencing “the present
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`invention,” the term “streamer positioning device” refers to a device that provides
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`lateral control:
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`invention provides methods and apparatus for
`The present
`controlling the positions of marine seismic streamers in an array of
`such streamers being towed by a seismic survey vessel, the streamers
`having respective streamer positioning devices disposed therealong
`and each streamer positioning device having a wing and a wing
`motor for changing the orientation of the wing so as to steer the
`streamer positioning device laterally . . .
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`(Ex. 1001, at 3:3-10, emphasis added.) See Watts v. XL Sys., Inc., 232 F.3d 877,
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`882 (Fed. Cir. 2000) (“[W]hen the preferred embodiment is described in the
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`specification as the invention itself, the claims are not necessarily entitled to a
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`scope broader than that embodiment.”) (internal citation omitted); see also Verizon
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`Servs. Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1308 (Fed. Cir. 2007)
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`(construing claims in light of a description of "the present invention"); Honeywell
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`Int'l, Inc. v. ITT Indus., Inc., 452 F.3d 1312, 1318 (Fed. Cir. 2006) (same).
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`This is confirmed by Claims 1 and 18, which claim “a plurality of streamer
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`positioning devices there along.” (Ex. 1001, Claims 1, 18) The focus throughout
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`the specification and claims is on streamer positioning devices that can at least
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`control the lateral position of a streamer.
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`The invention’s “streamer positioning devices,” are exclusively discussed in
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`the specification in the context of devices that provide lateral control:
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`• The most important requirement for the control system is to
`prevent the streamers 12 from tangling. . . . To get better control
`of the streamers 12, horizontal steering becomes necessary. If
`the birds 18 are not properly controlled, horizontal steering can
`increase, rather than decrease, the likelihood of tangling adjacent
`streamers.” (Ex. 1001, 4:4-13, emphasis added.)
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`• The inner streamer will then be regularly spaced between these
`outermost streamers, i.e., each bird 18 will receive desired
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`horizontal forces 42 or desired horizontal position information
`that will direct the bird 18 to the midpoint position between its
`adjacent streamers. (Ex. 1001, 10:60-65, emphasis added.)
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`• The turn control mode consists of two phases. In the first part of
`the turn, every bird 18 tries to “throw out” the streamer 12 by
`generating a force in the opposite direction of the turn. (Ex.
`1001, 10:39-42, emphasis added.)
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`While the preferred embodiment of the ’520 patent included streamer positioning
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`devices that controlled both depth and lateral p