Trials@uspto.gov
`571-272-7822
`
`
`
`Paper 101
`Entered: December 15, 2015
`
`
`
`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.,
`Petitioner,
`
`v.
`
`WESTERNGECO LLC,
`Patent Owner.
`____________
`
`Case IPR2014-006891
`Patent 7, 293,520 B2
`____________
`
`
`Before BRYAN F. MOORE, SCOTT A. DANIELS, and
`BEVERLY M. BUNTING, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`1 Case IPR2015-00565 has been joined with this proceeding.
`
`
`571-272-7822
`
`
`
`Paper 101
`Entered: December 15, 2015
`
`
`
`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.,
`Petitioner,
`
`v.
`
`WESTERNGECO LLC,
`Patent Owner.
`____________
`
`Case IPR2014-006891
`Patent 7, 293,520 B2
`____________
`
`
`Before BRYAN F. MOORE, SCOTT A. DANIELS, and
`BEVERLY M. BUNTING, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`1 Case IPR2015-00565 has been joined with this proceeding.
`
`
`
`IPR2014-00689
`Patent 7,293,520 B2
`
`A. Background
`
`I. INTRODUCTION
`
`Petroleum Geo-Services (“Petitioner,” or “PGS”) filed a Petition to
`
`institute an inter partes review of claims 1, 2, 18 and 19 of U.S. Patent No.
`
`7,293,520 B2 (“the ’520 patent”).2 Paper 2 (“PGS Pet.”). WesternGeco
`
`LLC (“Patent Owner”) timely filed a Preliminary Response. Paper 26
`
`(“First Prelim. Resp.”). We instituted trial in Petroleum Geo-Services, Inc.,
`
`v. WesternGeco L.L.C., Case IPR2014-00689, (the “PGS IPR”), for claims
`
`1, 2, 18 and 19 of the ’520 patent on certain grounds of unpatentability
`
`alleged in the Petition. Paper 32 (“Decision to Institute” or “Inst. Dec.”).
`
`Patent Owner, in due course, filed a Response. Paper 43 (“Response”).
`
`Petitioner subsequently filed a Reply. Paper 78 (Reply).
`
`In a separate proceeding, ION Geophysical Corporation and ION
`
`International S.A.R.L., v. WesternGeco L.L.C., Case IPR2015-00565 (PTAB
`
`Jan. 14, 2015) (the “ION IPR”), ION Geophysical Corporation and ION
`
`International S.A.R.L. (“ION”) also filed a Petition to institute an inter
`
`partes review of claims 1, 2, 18, and 19 of the ’520 patent. Paper 3 (“ION
`
`Pet.”). With their Petition, ION also filed a Motion for Joinder, Paper 4
`
`(“Mot.”), seeking to join the ION IPR with the PGS IPR. Mot. 2. Patent
`
`Owner filed an Opposition to ION’s Motion for Joinder. Paper 10 (“Opp.,”).
`
`We instituted trial in the ION IPR and granted ION’s Motion for Joinder.
`
`
`2 The Petition was initially accorded the filing date of April 23, 2014. Paper
`6. Following submission of an updated Mandatory Notice (Paper 18) on
`August 5, 2014, including additional real-parties-in-interest, the filing date
`of the Petition was changed to August 5, 2014 and we exercised our
`discretion under 37 C.F.R. § 42.5(c) to set a new deadline for Patent
`Owner’s preliminary response. Paper 22, 6.
`
`2
`
`
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`Paper 14 (“ION Decision to Institute” or “ION Inst. Dec.”). We ordered
`
`ION not to file papers, engage in discovery, or participate in any deposition
`
`or oral hearing in IPR2014-00689 without obtaining authorization. ION
`
`was, however, permitted to appear in IPR2014-00689 so that it could receive
`
`notification of filings and attend depositions and the oral hearing. Patent
`
`Owner subsequently filed a Preliminary Response to ION’s Petition. Paper
`
`70 (“ION Prelim. Resp.”).
`
`In addition, Petitioner filed a Motion to Exclude. Paper 85. Patent
`
`Owner filed an Opposition to Petitioner’s Motion to Exclude (Paper 90),
`
`and Petitioner filed a Reply. Paper 94. Also, Petitioner filed three Motions
`
`to Seal (Papers 81, 87, and 97), and Patent Owner filed a Motion to Seal.
`
`Paper 91.
`
`An oral hearing was held on July 30, 2015. A transcript of the hearing
`
`is included in the record. Paper 100 (“Tr.”).
`
`The Board has jurisdiction under 35 U.S.C. § 6(c). This Final Written
`
`Decision is entered pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`
`For the reasons that follow, we determine that Petitioner has proven, by a
`
`preponderance of the evidence, that claims 1, 2, 18 and 19 of the ’520 patent
`
`are unpatentable.
`
`B. Additional Proceedings
`
`Lawsuits involving the ’520 patent presently asserted against
`
`Petitioner include WesternGeco LLC v. Petroleum Geo-Services, Inc., 4:13-
`
`cv-02725 (the “PGS lawsuit”) in the Southern District of Texas and
`
`WesternGeco LLC v. ION Geophysical Corp., 4:09-cv-01827 (the “ION
`
`lawsuit”) also in the Southern District of Texas. ION Pet. 8.
`
`The ’520 patent is related to the patents involved in IPR2014-00687
`
`and IPR2014-00688.
`
`3
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`C. The ’520 Patent
`
`The ’520 patent (Ex. 1001), titled “Control System for Positioning of
`
`a Marine Seismic Streamers,” generally relates to a method and apparatus
`
`for improving marine seismic survey techniques to more effectively control
`
`the movement and positioning of marine seismic streamers towed in an array
`
`behind a boat. Ex. 1001, 1:24–36. As illustrated in Figure 1 of the ’520
`
`patent reproduced below, labeled Prior Art, a seismic source, for example,
`
`air gun 14, is towed by boat 10 producing acoustic signals, which are
`
`reflected off the earth below. Id. The reflected signals are received by
`
`hydrophones (no reference number) attached to streamers 12, and the signals
`
`“digitized and processed to build up a representation of the subsurface
`
`geology.” Id. at 36–41.
`
`4
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`
`
`
`
`Figure 1, above, depicts an array of seismic streamers 12 towed
`
`behind boat 10.
`
`In order to obtain accurate survey data, it is necessary to control the
`
`positioning of the streamers, both vertically in the water column, as well as
`
`horizontally against ocean currents and forces which can cause the normally
`
`linear streamers to bend and undulate and, in some cases, become entangled
`
`with one another. Id. at 1:42–2:16. As illustrated in Figure 1, above, each
`
`streamer is maintained in a generally linear arrangement behind the boat by
`
`deflector 16 which horizontally positions the end of each streamer nearest
`
`the boat. Id. at 3:36–45. Drag buoy 20 at the end of each streamer farthest
`
`5
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`from the vessel creates tension along the streamer to maintain the linear
`
`arrangement.
`
`To control the position and linear shapes of the streamers, a plurality
`
`of streamer positioning devices, called “birds” 18 or “SPD’s” (streamer
`
`positioning devices), are attached along the length of each streamer. Id. at
`
`3:53–55. The birds are horizontally and vertically steerable and control the
`
`shape and position of the streamer in both vertical (depth) and horizontal
`
`directions. Id. at 3:55–61. The birds’s job is usually to maintain the
`
`streamers in their linear and parallel arrangement, because when the
`
`streamers are horizontally out of position, the efficiency of the seismic data
`
`collection is compromised. Id. at 2:4–12. The most important task of the
`
`birds, the specification explains, is to keep the streamers from tangling. Id.
`
`at 4:4–5.
`
`To control the birds, and hence the array of streamers, the ’520 patent
`
`describes a distributed control system using global control system 22 located
`
`on the vessel, and a local control system at each bird to maintain the
`
`streamers in their particular linear and parallel arrangement. Id.
`
`at 3:62–66. In an embodiment of the described control system, global
`
`control system 22 monitors the actual positions of the birds on the streamers
`
`and “and is programmed with the desired positions of or the desired
`
`minimum separations between the seismic streamers 12.” Id. at 4:21–25.
`
`Global control system 22 uses the desired and actual positions of the birds to
`
`“regularly calculate updated desired vertical and horizontal forces the birds
`
`should impart on the seismic streamers 12 to move them from their actual
`
`positions to their desired positions.” Id. at 4:37–40. Global control system
`
`22 then communicates this information to the birds’s local control system.
`
`Id. at 5:6–10.
`
`6
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`The ’520 patent explains that the “inventive control system” has two
`
`primary modes, a feather angle mode, and a turn control mode. Id. at 10:27–
`
`29. The feather angle mode is used to maintain the linear form of the
`
`streamer at an angle offset from the direction of towing, usually to account
`
`for ocean crosscurrents affecting the streamers. Id. at 10:29–37. The ’520
`
`patent explains that in the feather angle mode
`
`[t]he feather angle could be input either manually, through use
`of a current meter, or through use of an estimated value based
`on
`the average horizontal bird forces. Only when
`the
`crosscurrent velocity is very small will the feather angle be set
`to zero and the desired streamer positions be in precise
`alignment with the towing direction.
`
`Id. at 10:32–36.
`
`The turn control mode is used when the vessel is turning during a
`
`survey operation. Id. at 10:38–40. In a first part of the turn, birds 18 are
`
`instructed to “throw out” the streamer by generating a force in the opposite
`
`direction from the turn. Id. at 10:40–44. In a second part of the turn, the
`
`birds are directed back to the position defined by the feather angle mode. Id.
`
`The control system determines the first and second part of the turn according
`
`to data provided by the vessel navigation system. Id. at 10:50–53.
`
`The control system can also operate in a streamer separation mode,
`
`important for example during inclement weather conditions to keep the
`
`streamers from tangling. Id. at 10:54–57. In this mode, the birds receive
`
`either desired horizontal force, or horizontal position information to
`
`maintain the streamers a desired horizontal distance spaced apart from one
`
`another, and, the streamers can also be separated in depth. The specification
`
`explains that “[i]n this control mode, the global control system 22 attempts
`
`to maximize the distance between adjacent streamers. The streamers 12 will
`
`7
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`typically be separated in depth and the outermost streamers will be
`
`positioned as far away from each other as possible.” Id. at 10:57–65.
`
`According to the ’520 patent, these different modes allow the vessel to
`
`operate more efficiently, turn faster and lower the incidents of tangling
`
`during survey operations leading to a reduction in time and equipment costs
`
`of marine surveying. Id. at 10:44–46, 2:23–25.
`
`D. Illustrative Claim
`
`Claims 1 and 18 are independent. Claim 1, a method claim and claim
`
`18 an apparatus claim, illustrate the claimed subject matter:
`
`
`
`1. A method comprising:
`(a) towing an array of streamers each having a plurality of
`streamer positioning devices there along contributing
`to steering the streamers;
`(b) controlling the streamer positioning devices with a
`control system configured to operate in one or more
`control modes selected from a feather angle mode, a
`turn control mode, and a streamer separation mode.
`
`
`Ex. 1001, 11:10–18 (emphasis added).
`
`
`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.
`
`
`Id. at 12:4–10. (emphasis added).
`
`
`8
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`E. The Instituted Grounds of Unpatentability
`
`Petitioner contends that the challenged claims are unpatentable on the
`
`following specific grounds.3
`
`
`
`References
`
`Workman4
`
`Workman
`
`Hedberg5
`
`Hedberg
`
`
`
`Basis
`
`§ 102
`
`§ 103
`
`§ 102
`
`§ 103
`
`Claims Challenged
`
`1 and 18
`
`1, 2, 18 and 19
`
`1, 2, 18 and 19
`
`1, 2, 18 and 19
`
`II. CLAIM CONSTRUCTION
`
`A. Legal Standard
`
`In an inter partes review, claim terms in an unexpired patent are
`
`interpreted according to their broadest reasonable construction in light of the
`
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b); see
`
`also In re Cuozzo Speed Techs., LLC., 778 F.3d 1271, 1278–82 (Fed. Cir.
`
`2015) (“Congress implicitly approved the broadest reasonable interpretation
`
`standard in enacting the AIA,” and “the standard was properly adopted by
`
`PTO regulation.”). Claim terms are given their ordinary and customary
`
`meaning as would be understood by a person of ordinary skill in the art at
`
`the time of the invention and in the context of the entire patent disclosure.
`
`In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). If the
`
`
`3 Petitioner supports its challenge with Declarations of Dr. Brian J. Evans,
`Ph.D. (Ex. 1002) (“Evans Decl.”) and Dr. Jack H. Cole, Ph.D. (Ex. 1003)
`(“Cole Decl.”). See infra.
`4 Ex. 1004, U.S. Patent No. 5,790,472 (Aug. 4, 1998).
`5 Ex. 1005, U.S. Patent No. 3,581,273 (May 25, 1971).
`
`9
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`specification “reveal[s] a special definition given to a claim term by the
`
`patentee that differs from the meaning it would otherwise possess[,] . . . the
`
`inventor’s lexicography governs.” Phillips v. AWH Corp., 415 F.3d 1303,
`
`1316 (Fed. Cir. 2005) (en banc) (citing CCS Fitness, Inc. v. Brunswick
`
`Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)).
`
`If an inventor acts as his or her own lexicographer, the definition must
`
`be set forth in the specification with reasonable clarity, deliberateness, and
`
`precision. Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243,
`
`1249 (Fed. Cir. 1998). If a feature is not necessary to give meaning to what
`
`the inventor means by a claim term, it would be “extraneous” and should not
`
`be read into the claim. Renishaw PLC, 158 F.3d at 1249; E.I. du Pont de
`
`Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1433 (Fed. Cir.
`
`1988). Only terms which are in controversy need to be construed, and then
`
`only to the extent necessary to resolve the controversy. Vivid Techs., Inc. v.
`
`Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`
`We apply these general rules in construing the claims of the ’520
`
`patent.
`
`In our Decision to Institute we determined that an “array of streamers”
`
`as “more than one streamer.” Inst. Dec. 11. We also determined that
`
`“feather angle mode,” means “a control mode that attempts to keep each
`
`streamer in a straight line offset from the towing direction by a certain
`
`feather angle.” Id. at 12. We further determined that “turn control mode” is
`
`“a control mode, in which during a turn, the streamer positioning devices
`
`generate force in the opposite direction of the turn and then are directed back
`
`into position.” Id. at 13. We interpreted “streamer separation mode” as “a
`
`mode to control separation, or spacing, between streamers.” Id. at 15. In
`
`addition, we determined for apparatus claim 18, that the limitations recited
`
`10
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`in paragraph b) constituted a Markush group, and therefore “the prior art
`
`discloses the limitation if one alternative, i.e. a feather angle, a turn control
`
`mode, or a streamer mode, is in the prior art.” Id. (citing Fresenius USA,
`
`Inc. v. Baxter Int’l, Inc., 582 F.3d 1288, 1298 (Fed. Cir. 2009)).
`
`Based on the full record developed during trial, we adopt those
`
`constructions not discussed below for purposes of this Decision. Because
`
`Patent Owner disagrees with our interpretations of “feather angle mode” and
`
`“streamer separation mode” as recited in both claims 1 and 18, we provide
`
`below additional analysis and the correct claim construction for both these
`
`claim limitations. See PO Resp. 7–10. Additionally, Petitioner contends
`
`that the term “control mode” should be construed. Reply 4–5.
`
`B. Feather Angle Mode
`
`We determined in the Decision to Institute that “feather angle mode”
`
`means “a control mode that attempts to keep each streamer in a straight line
`
`offset from the towing direction by a certain feather angle.” Inst. Dec. 12.
`
`The parties, however, disagree over the meaning of the phrase “by a certain
`
`feather angle,” set forth in our construction. Petitioner insists that it means
`
`“no feather angle is input or set.” Reply 8–9. Patent Owner disagrees and
`
`asserts that the feather angle is “a specific selection/input (whether manually
`
`or through other means) of the angle into the global control system.” PO
`
`Resp. 7–8. This point requires clarification. There is only a very brief
`
`description of “feather angle mode” in the specification, which, in its
`
`entirety states:
`
`In the feather angle control mode, the global control system 22
`attempts to keep each streamer in a straight line offset from the
`towing direction by a certain feather angle. The feather angle
`could be input either manually, through use of a current meter,
`or through use of an estimated value based on the average
`
`11
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`horizontal bird forces. Only when the crosscurrent velocity is
`very small will the feather angle be set to zero and the desired
`streamer positions be in precise alignment with the towing
`direction.
`
`Ex. 1001, 10:29–37. Although this passage indicates that there may be
`
`various ways, e.g. estimation, manual input, current measurement, to input
`
`or determine the feather angle, it is clear that the “feather angle” itself exists
`
`as a value used by global control system 22 to control the streamers
`
`positions.
`
`Petitioner argues that the above description “discloses implementing
`
`feather angle mode through use of a current meter” that “steers the streamers
`
`to counteract the current and attempts to keep them straight and parallel
`
`without a feather angle being input.” Reply 8–9. Petitioner misconstrues
`
`the written description. The object of the second sentence isn’t “feather
`
`angle mode,” it is “feather angle.” The specification states explicitly “[t]he
`
`feather angle could be input either manually, through use of a current meter,
`
`or through use of an estimated value based on the average horizontal bird
`
`forces.” This sentence does not read as alternatives to the feather angle
`
`itself, but different ways to determine a feather angle value.
`
`Patent Owner’s explanation is the more reasonable one here.
`
`Accordingly, we clarify our claim construction so that it is understood that
`
`the feather angle mode includes global control system 22 using a certain
`
`feather angle value to control the birds and streamers. The “feather angle
`
`mode” is properly, “a control mode that attempts to keep each streamer in a
`
`straight line offset from the towing direction using a certain feather angle.”
`
`C. Streamer Separation Mode
`
`Patent Owner contends that our construction of “streamer separation
`
`mode,” as “a mode to control separation, or spacing, between streamers,” is
`
`12
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`incomplete. PO Resp. 9, 13. Patent Owner argues that this interpretation
`
`“fails to define what it means to “control separation.” Id. Patent Owner’s
`
`position is that streamer separation mode is “precisely controlling, and
`
`therefore, maintaining” streamer separation. Id. at 20. However, the word
`
`“precisely” is superfluous without some stated relative quantity for
`
`comparison. That a behavior-predictive model as disclosed in the
`
`specification might make the control more accurate or “precise” does not
`
`persuade us that our original interpretation of this term is incorrect. See id.
`
`As we wrote in our original construction, we are not apprised of any
`
`evidence in the specification or claims that any specific distance between the
`
`streamers in the separation mode is “set and maintain[ed]” as Patent Owner
`
`urges. Inst. Dec. 14. The phrase “set and maintain” may be an explanation
`
`of how a system could “control separation” but this phrase is not found
`
`anywhere in the specification or claims. Indeed, the ’520 patent sets forth
`
`various ways that separation or spacing can be controlled between streamers,
`
`[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). Patent Owner has not provided persuasive evidence
`
`adequate to explain why the proper claim construction requires that the
`
`phrase “to control separation” be further defined more precisely as, “to set
`
`and maintain,” the spacing.
`
`We determine based on the specification, claim language, and
`
`evidence from the complete record before us, that our initial claim
`
`construction is correct, and that under the broadest reasonable interpretation,
`
`13
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`“streamer separation mode,” means “a mode to control separation, or
`
`spacing, between streamers.”
`
`D. Control Mode
`
`Petitioner contends that Patent Owner has asserted, covertly, a claim
`
`construction for the term “control mode.” Reply 4–5. Patent Owner argues
`
`that Workman does not disclose any modes and that “as used in the ’520
`
`patent, a ‘control mode’ refers to a goal-oriented automated configuration.”
`
`PO Resp. 19–20 (citing Ex. 2042 ¶¶190–191). Petitioner argues that such an
`
`interpretation, to the extent it is a claim construction proffered by Patent
`
`Owner, is too narrow and that “a control mode is simply a particular way of
`
`operating a device.” Reply 4.
`
`The specification of the ’520 patent does not provide a definition of
`
`this term. The specification states generally “[t]he inventive control system
`
`will primarily operate in two different control modes: a feather angle control
`
`mode and a turn control mode.” Ex. 1001, 10:27–29. Patent Owner’s
`
`Declarant, Dr. Triantafyllou testifies that Workman does not disclose “model
`
`based control” because “there is no goal-oriented steering disclosed at all.”
`
`Ex. 2042 ¶ 190. Dr. Triantafyllou states that
`
`[i]n contrast, the ’520 patent describes goal-oriented automated
`configurations maintained by “control modes”: feather angle
`mode automatically steers to achieve a particular feather angle,
`turn control mode automatically steers to turn faster, and
`streamer separation mode automatically steers to achieve and
`maintain desired separations.
`
`Id. at ¶ 191 (citing Ex. 1001, 10:27–65). Dr. Triantafyllou’s testimony is
`
`essentially that, for example in streamer separation mode, there is defined (a)
`
`a goal, “to achieve and maintain desired separations” and, (b) automation,
`
`e.g. “automatically steer[ing] to achieve and maintain desired separations.”
`
`14
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`Id. This testimony, however, merely describes a desired result, i.e. “to
`
`maintain desired separations,” and how such a goal could be accomplished,
`
`by “automatically steering.” It is axiomatic that any operation of a computer
`
`system or program has a goal or desired result, otherwise its operation, even
`
`its existence, would be pointless. See MICROSOFT
`
`®
`
` PCDICTIONARY 118 (5th
`
`Ed. 2002) (“computer n. Any device capable of processing information to
`
`produce a desired result.”). Moreover, the word “automatically” introduces
`
`more ambiguity into the claim interpretation because it is not clear from the
`
`specification or Dr. Triantafyllou’s testimony what “automatically” means,
`
`or that manual input or operations associated with the systems steering
`
`operations are excluded. See Ex. 1001, 10:32–33 (“The feather angle could
`
`be input [] manually.”). We, therefore, decline to adopt Patent Owner’s
`
`purported construction of this term.
`
`A common computer term, Microsoft’s PC Dictionary defines the
`
`word as “mode n. The operational state of a computer or a program.”
`
`MICROSOFT
`
`®
`
` PCDICTIONARY 344 (5th Ed. 2002). Under this definition, a
`
`“mode” controls the state, i.e., operation, or even lack of operation, of a
`
`computer or computer program as is most consistent with the written
`
`description and context of the ’520 patent. Because at least Patent Owner’s
`
`first argument with respect to anticipation focuses on this term, we
`
`determine that “control mode” means “operational state.”
`
`III. ANALYSIS
`
`A. Claims 1 and 18 – Anticipation by Workman
`
`To prevail on its patentability challenge, Petitioner must establish
`
`facts supporting its challenge by a preponderance of the evidence. 35 U.S.C.
`
`§ 316(e); 37 C.F.R. § 42.1(d). Petitioner asserts that claims 1 and 18 are
`
`anticipated by Workman under 35 U.S.C. § 102. Pet. 28–32; Reply 11–14.
`
`15
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`Patent Owner disagrees, contending that Workman fails to disclose actively
`
`controlling its streamers in control modes as recited in the independent
`
`claims. PO Resp. 19–20.
`
` “A claim is anticipated only if each and every element as set forth in
`
`the claim is found, either expressly or inherently described, in a single prior
`
`art reference.” Verdegaal Bros. Inc. v. Union Oil Co., 814 F.2d 628, 631
`
`(Fed. Cir. 1987). “The identical invention must be shown in as complete
`
`detail as is contained in the . . . claim.” Richardson v. Suzuki Motor Co., 868
`
`F.2d 1226, 1236 (Fed. Cir. 1989). The elements must be arranged as
`
`required by the claim, but this is not an ipsissimis verbis test, i.e., identity of
`
`terminology is not required. In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990).
`
` “[U]nless a reference discloses within the four corners of the
`document not only all of the limitations claimed but also all of
`the limitations arranged or combined in the same way as recited
`in the claim, it cannot be said to prove prior invention of the
`thing claimed and, thus, cannot anticipate under 35 U.S.C. §
`102.”
`
`Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008).
`
`Whether a patent is invalid as anticipated is a two-step inquiry. See
`
`Power Mosfet Tech., LLC. v. Siemens AG, 378 F.3d 1396, 1406 (Fed. Cir.
`
`2004). The first step requires construction of the claims. Id. The second
`
`step in the analysis requires a comparison of the properly construed claim to
`
`the prior art. Id.
`
`1. Overview of Workman
`
`Workman discloses a method for controlling the position and shape of
`
`marine seismic streamer cables towed by a vessel. Ex. 1004, Abstract, Fig.
`
`1. More specifically, Workman teaches that real time signals, i.e. actual
`
`signals, from a towed streamer array are compared to corresponding input
`
`16
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`threshold parameters, to determine if the cables should be repositioned. Id.
`
`at col. 2, ll. 47–51. Workman discloses that the positions of seismic
`
`streamer cables are controlled by a plurality of birds and tail buoys “for
`
`adjusting the vertical and lateral positions of the streamer cables 13.” Id. at
`
`col. 3, ll. 16–19. Figure 2 of Workman is reproduced below.
`
`
`
`
`
`Figure 2 of Workman illustrates diagrammatically, seismic data
`
`acquisition system 5 for positioning streamer cables 13 including streamer
`
`controller 16 receiving instructions from streamer control processor 40. Id.
`
`at col. 4, ll. 16–18. Within data acquisition system 5, Workman also
`
`discloses network solution system 10 which uses a “Kalman filter solution
`
`on the signals it receives from the vessel positioning system 20 and location
`
`sensing devices 15.” Id. at col. 3, ll. 47–49. Workman states that once the
`
`real time position signals are obtained, “[t]he streamer control processor 40
`
`17
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`evaluates these real time signals and the threshold parameters from the
`
`terminal 32 to determine when the streamer cables 13 need to be
`
`repositioned and to calculate the position correction required to keep the
`
`streamer cables 13 within the threshold parameters.” Id. at col. 4, ll. 12–17.
`
`Threshold values can be, for example, minimum streamer cable separations,
`
`minimum allowable seismic coverage, maximum hydrophone noise
`
`levels,and minimum obstructive hazard separation. Id. at col. 3, l. 66–col. 4,
`
`l. 3. Besides repositioning of the streamer cables according to the
`
`comparison of real time signals and threshold parameters, Workman
`
`discusses an “at risk” situation such as entanglement of the streamer cables,
`
`or obstructive hazards. Id. at col. 4, ll. 45–51. In an “at risk” situation,
`
`certain parameters may be disregarded, for example, the hydrophone noise
`
`level parameter. Id. at col. 4, ll. 41–46. In other situations, the streamer
`
`cables may be repositioned due specifically to the level of hydrophone noise.
`
`Id. at col. 5, ll. 15–19.
`
`18
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`2. Claims 1 and 186
`
`Patent Owner argues that Workman does not anticipate claims 1 and
`
`18 for essentially three reasons, (a) Workman does not actively control its
`
`streamers in control modes; (b) “Workman does not disclose any modes;”
`
`and (c) Workman does not disclose a “streamer separation mode.” PO Resp.
`
`19–20.
`
`Enablement
`
`Petitioner addresses an enablement issue that, at least in this
`
`proceeding, is not clearly and specifically raised by Patent Owner.7 See
`
`Reply 14–19, PO Resp. 32. Patent Owner states that “[t]here is no support
`
`for Dr. Evans’s assertion unless one presupposes that Workman has a
`
`working lateral steering system, which it does not . . . [b]ecause Workman
`
`explicitly discourages active and continuous positioning of streamers.” PO
`
`Resp. 32. (citing Ex. 2042 ¶¶ 98, 105, 199–200). To the extent it has been
`
`raised here, we address enablement because it is a threshold issue with
`
`respect to anticipation. A patent claim “cannot be anticipated by a prior art
`
`reference if the allegedly anticipatory [disclosure] cited as prior art [is] not
`
`enabled.” In re NTP, Inc., 654 F.3d 1279, 1301 (Fed. Cir. 2011). Although
`
`anticipation is a question of fact, whether a prior art reference is enabling is
`
`a question of law with underlying factual inquiries. Id.
`
`The standard for what constitutes proper enablement of a prior art
`
`
`6 Claims 1 and 18 recite substantively the same limitations of “control
`mode” and “streamer separation mode.” Although claim 1 is a method
`claim, and claim 18 is an apparatus claim we understand no substantive
`difference between these claim terms and our analysis and construction
`applies equally to both.
`7 The issue of enablement of the prior art is specifically raised by Patent
`Owner in IPR2014-00688.
`
`19
`
`
`
`IPR2014-00689
`Patent 7, 293,520 B2
`
`reference for purposes of anticipation under section 102 differs from the
`
`enablement standard for a patent application under section 112. See Verizon
`
`Services Corp., v. Cox Fibernet Virginia, Inc., 602 F.3d 1325, 1337 (Fed.
`
`Cir. 2010). Anticipation does not require the actual creation or reduction to
`
`practice of the prior art subject matter; anticipation requires only an enabling
`
`disclosure. See Schering Corp., v. Geneva Pharma, Inc., 339 F.3d 1373,
`
`1380 (Fed. Cir. 2003); citing In re Donohue, 766 F.2d 531, 533 (Fed. Cir.
`
`1985).
`
`There is no dispute that streamer positioning devices which could be
`
`laterally, or horizontally, steered were known in the prior art before the
`
`priority date of the ’520 patent. The ’520 patent itself describes “[a]nother
`
`system for controlling a horizontally steerable bird is disclosed in our
`
`published PCT International Application No. WO 98/28636.” Ex. 1001,
`
`2:38–40. Further, discussing Figure 1 labeled “Prior Art” the ’520 patent
`
`explains that “located between the deflector 16 and the tail buoy 20 are a
`
`plurality of streamer positioning devices known as birds 18. Preferably the
`
`birds 18 are both vertically and horizontally steerable.” Id. at 3:53–56. See
`
`Bristol-Myers Squibb Co. v. Ben Venue Labs., Inc., 246 F.3d 1368, 1379
`
`(Fed. Cir. 2001). “It is well settled that “enablement of an anticipatory
`
`reference may be demonstrated by a later reference.”)
`
`Workman refers also in the Background of the Invention to known
`
`SPD’s which control lateral position of streamers, “streamer positioning
`
`devices are well known in the art . . . For example, devices to control the
`
`lateral positioning of streamer cables by using camber-adjustable hydrofoils
`
`or angled wings are disclosed in U.S. Pat. Nos. 4,033,278 and 5,443,027.”
`
`Ex. 1004, 1:45–58. Moreover, it is presumed that Workman is enabled. See
`
`Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F. 3d 1313, 1355 (Fed. Cir.
`
`20
`
`
`
`IPR2014-00689
`Patent 7, 29
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
