UNITED STATES PATENT AND TRADEMARK OFFICE
`________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________________
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`PETROLEUM GEO-SERVICES INC.,
`
`Petitioner,
`
`v.
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`WESTERNGECO LLC,
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`Patent Owner.
`
`____________
`
`Case IPR2014-01477
`U.S. Patent No. 7,080,607
`____________
`
`PATENT OWNER’S REQUEST FOR REHEARING
`UNDER 37 C.F.R. § 42.71(d)
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`
`
`
`
`
`________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________________
`
`PETROLEUM GEO-SERVICES INC.,
`
`Petitioner,
`
`v.
`
`WESTERNGECO LLC,
`
`Patent Owner.
`
`____________
`
`Case IPR2014-01477
`U.S. Patent No. 7,080,607
`____________
`
`PATENT OWNER’S REQUEST FOR REHEARING
`UNDER 37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`
`SUMMARY OF ISSUES FOR REHEARING
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`Patent Owner’s Request for Rehearing
`Case IPR2014-01477
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`I.
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`Patent Owner WesternGeco, L.L.C. (“WG”) requests rehearing under 37
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`C.F.R. § 42.71(d) of the Board’s Final Written Decision (“Decision,” Paper 65)
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`finding that claims 16-23 of U.S. Patent No. 7,080,607 (“the ’607 patent”) are
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`unpatentable.
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`To avoid the time bar of § 315(b), Petitioner Petroleum Geo-Services Inc.
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`(“PGS”) engaged in chicanery to obscure the facts and deny its relationship with its
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`privies ION Geophysical Corp. (“ION”) and Multi Klient Invest AS (“Multi
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`Klient”). The Board overlooked this record and misapprehended the law in finding
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`that the Petition was not barred under § 315(b), in ignoring PGS’s admission that
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`Multi Klient is an RPI, and in denying targeted discovery of documents that PGS
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`admitted existed, which would have compelled a contrary result. The Board’s
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`decision wrongfully rewards PGS for its obfuscation and gamesmanship.
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`The above grounds are case-dispositive and justify relief under 37 C.F.R. §
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`42.71(d). WG respectfully requests that the Board grant rehearing, modify its
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`Decision and find that the Petition was time-barred or, at a minimum, vacate its
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`Decision and grant WG the additional discovery it was wrongfully denied.
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`II. LEGAL STANDARDS
`“A party dissatisfied with a decision may file a request for rehearing,
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`without prior authorization from the Board.” 37 C.F.R. § 42.71(d). “The burden
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`1
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`Patent Owner’s Request for Rehearing
`Case IPR2014-01477
`of showing a decision should be modified lies with the party challenging the
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`decision” and “[t]he request must specifically identify all matters the party believes
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`the Board misapprehended or overlooked, and the place where each matter was
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`previously addressed in a motion, an opposition, or a reply.” Id.
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`III. ARGUMENT
`A. The Board’s Decision Overlooks PGS’s Conflicting
`Representations Made Throughout this Proceeding
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`PGS and ION deceived the Board to skirt the statutory time bar by
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`misrepresenting both their relationship with each other and PGS’s relationship with
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`Multi Klient. They directly contradicted each other as to the facts underlying their
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`relationship. And after initially denying that Multi Klient was an RPI, PGS
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`abandoned that representation (after PGS thought the record was sufficiently
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`closed in this case that its reversal would go unnoticed) to admit that Multi Klient
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`is an RPI. Evidence of this deception and inconsistency, by itself, should be
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`considered sufficient cause for granting additional discovery under the Board’s
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`rules. To hold otherwise violates the constitutionally mandated due process
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`protections guaranteed to WG and would effectively reward PGS for its bad
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`behavior. See U.S. CONST. amend. V; amend. XIV § 1; see also Fla. Prepaid
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`Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 642 (1999)
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`(“Patents . . . have long been considered a species of property”). This is especially
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`true when the lack of any burden to PGS, discussed below, is balanced against the
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`2
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`Patent Owner’s Request for Rehearing
`Case IPR2014-01477
`harm of depriving WG of its property rights without a full record of relevant facts.
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`Indemnity is a hallmark of privity. The Board did not sufficiently consider
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`that PGS has admitted to the existence of multiple indemnification agreements
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`between PGS and ION, while its co-conspirator, ION, denied the very existence of
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`any such agreements—even the one of record. See Paper 31 at 6-9; See also Ex.
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`3002 at 21:21-22:17, 25:16-26:21. PGS produced one indemnification agreement
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`but has refused to produce the others that it admits exist. Paper 31 at 8. The fact
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`that PGS could characterize these agreements confirms that its attorneys had these
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`agreements in hand—no burden existed for PGS to produce them. Additionally,
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`despite the Board’s continued citation to PGS’s responses to WG’s interrogatories
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`(Ex. 2018), the Board overlooks the importance of PGS’s answers and the
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`misleading way in which PGS redrafted the interrogatories so as to avoid the
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`disclosure of damaging information.
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`The Board’s Decision also overlooks PGS’s misrepresentations about
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`whether Multi Klient is a real party-in-interest (“RPI”). Earlier in this proceeding,
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`WG alerted the Board to Multi Klient’s stake in this case, as well as PGS’s
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`disclosure of Multi Klient as an interested party in co-pending district court
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`litigation. Paper 39 at 60. In its Decision, however, the Board failed to fully
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`consider this evidence and found that Multi Klient was not an RPI to this
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`proceeding. See Paper 65 at 74. However, shortly after the Oral Hearing in this
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`3
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`Case IPR2014-01477
`case, i.e., after PGS thought the record was sufficiently closed, PGS admitted that
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`Multi Klient was an RPI in two IPR petitions challenging patents asserted in the
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`very co-pending litigation that WG identified in its Patent Owner Response (“PO
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`Resp.”). See Petroleum Geo-Services Inc. v. WesternGeco LLC, Case IPR2016-
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`00407, Paper 1 at 3 (PTAB Dec. 23, 2015); Petroleum Geo-Services Inc. v.
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`WesternGeco LLC, Case IPR2016-00499, Paper 3 at 14 (PTAB Jan. 23, 2016). By
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`delaying this disclosure and standing by its prior, incorrect, representations, PGS
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`hoped to game the system and avoid the necessary implication of the facts, i.e., that
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`PGS’s Petition was time barred and that this Board therefore lacked jurisdiction to
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`consider PGS’s challenges to WG’s property rights.
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`PGS’s deception should not be rewarded. At a minimum, such
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`misrepresentations should qualify as a basis for this Board to grant additional
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`discovery. By underappreciating this evidence and ignoring PGS’s gamesmanship,
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`the Board’s Decision allows PGS to skirt the statutory requirements of § 315(b)
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`and to inappropriately invoke this Board’s jurisdiction. Accordingly, WG requests
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`that the Board grant rehearing, vacate its Decision, and terminate this proceeding
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`or, in the alternative, grant WG additional discovery on RPI.
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`1.
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`The Board Erred in Denying Additional Discovery on
`PGS’s Relationship With ION
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`If ION is a RPI or privy of PGS, this proceeding is time-barred. PGS admits
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`to the existence of indemnification agreements between ION and PGS-related
`4
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`Patent Owner’s Request for Rehearing
`Case IPR2014-01477
`entities, but the Board has improperly denied WG access to those agreements.
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`Paper 65 at 46-74. The Board has also not considered the deception that PGS and
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`ION used to hide their relationship. Additionally, the Board has misapprehended
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`the law governing additional discovery, particularly as it relates to the relevance of
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`indemnification agreements in establishing privity.
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`Quite simply, PGS and ION engaged in chicanery. PGS has admitted to the
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`existence of multiple indemnification agreements and requests for indemnification
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`under those agreements, while ION denies that any such agreements even exist.
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`Ex. 2018 at 14; see also Paper 31 at 9 (citing IPR2014-00688, Ex. 1058 at 17:15-
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`21). Although PGS produced one such agreement, PGS thwarted every WG
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`attempt to obtain those additional agreements and communications regarding such
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`agreements. Paper 31 at 6-7; see also Ex. 3002 at 21:21-22:17, 25:16-26:21. PGS
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`and its co-conspirator, ION, have engaged in chicanery on a case-dispositive issue
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`which should suffice for granting additional discovery.
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`The Board also overlooks WG’s proof of the relevance of these additional
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`indemnification agreements. Paper 65 at 71. The Board’s Decision states that WG
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`failed to produce “any evidence as to what is contained in, or required by such
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`additional agreements, or that such purported additional agreements bear on PGS
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`and ION’s relationship in this IPR proceeding.” Paper 65 at 71. However, the
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`Board overlooked that WG’s interrogatories were expressly limited to indemnity
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`5
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`Patent Owner’s Request for Rehearing
`Case IPR2014-01477
`for WG patents—and at least implicitly limited to the ’607 patent and the two other
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`patents-at-issue in co-pending IPRs. See Ex. 2018 at 13. As such, the additional
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`agreements that PGS admitted exist must bear on this proceeding.
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`The Board also seems to base its denial of additional discovery on WG’s
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`failure to provide the detailed substance of the indemnification agreements that
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`PGS hid. See Paper 65 at 71. Not only did the Board consistently deny WG the
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`opportunity to seek this very information—whether through interrogatories or
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`through the documents themselves—but the Board’s Decision overlooks that PGS
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`has expressly admitted that the agreements “contain warranty or indemnification
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`provisions” regarding WG’s patents. Ex. 2018 at 14. WG should have been
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`granted discovery into these agreements on that basis alone. This is especially true
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`where, as is the case here, PGS’s production of these agreements would have been
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`a trivial matter to PGS, but PGS’s failure to produce such agreements has far-
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`reaching effects on WG, including the potential loss of WG’s patent rights. See
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`Garmin Int’l, Inc. v. Cuozzo Speed Techs. LLC, IPR2012-00001, Paper 26 at 6-7
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`(PTAB Mar. 5, 2013). Moreover, any deficiency in WG’s proof is because the
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`Board has prevented WG from obtaining the necessary discovery, setting up a
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`chicken-and-egg impossible situation.
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`The Board additionally overlooks the gamesmanship PGS employed when
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`responding to WG’s interrogatories. For example, the Board overlooks that PGS
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`6
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`Case IPR2014-01477
`refused to disclose the relationships between itself and its named RPIs (Petroleum
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`Geo-Services ASA and PGS Geophysical AS) and ION. Paper 1 at 8; Ex. 2018 at
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`5. The Board also overlooks that PGS redefined the definition of “PGS” in the
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`interrogatories to exclude those named RPIs (Ex. 2040 at 2) and to mean only
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`“Petroleum Geo-Services, Inc.” Ex. 2018 at 5. PGS thus refused to provide any
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`discovery on indemnification agreements between ION and PGS’s named RPIs as
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`well as any other related PGS entities. Paper 31 at 9. In other words, PGS went
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`out of its way through tortured logic and arguments to hide the relationship
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`between the named RPIs and ION. The Board’s Decision overlooks the existence
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`and extent of this deception and refuses to allow WG to even request such
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`discovery. Paper 65 at 69-74.
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`The Board’s Decision also holds WG to a far higher standard than the law
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`requires for establishing the relevance of the discovery sought to a showing of
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`privity. See Paper 65 at 71 (stating that the Board has “been apprised of no
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`evidence that any of these other purported ‘multiple agreements’ . . . contain any
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`specific language or provisions relating to an obligation on the part of ION to
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`defend or indemnify PGS in a lawsuit or invalidity proceeding”) (emphasis added).
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`What is important in establishing privity and RPI is whether a party “had the
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`opportunity to exercise control” over a proceeding before this Board or another
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`tribunal, past or present. Gen. Elec. Co. v. Transdata, Inc., IPR2014-01559, Paper
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`7
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`Patent Owner’s Request for Rehearing
`Case IPR2014-01477
`23 at 11 (PTAB Apr. 15, 2015); see also Office Patent Trial Practice Guide, 77
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`Fed. Reg 157, 48756, 48759 (Aug. 14, 2012) (“A common consideration
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`[regarding RPI and privity] is whether the non-party exercised or could have
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`exercised control over a party’s participation in a proceeding” (emphasis added)).
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`Nevertheless, the Board’s Decision improperly required that WG establish that
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`ION had “an obligation . . . to defend or indemnify PGS.” Paper 65 at 71
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`(emphasis added); see also Paper 65 at 64-65, 68-69. In holding WG to this
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`improper “obligation” standard, the Board overlooked that the existence of
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`indemnification agreements alone establishes ION’s opportunity to control the
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`instant proceeding, which is all that WG is required to show under the law.
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`Additionally, the Board misinterprets the law when it states that WG’s
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`argument “that an indemnification provision may support a finding of privity, is
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`. . . simply attorney argument.” Paper 65 at 72. Contrary to the Board’s statement,
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`the PTAB has repeatedly found that agreements with indemnification provisions
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`may establish privity. See K.J. Pretech Co., Ltd. v. Innovative Display Techs.,
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`LLC, IPR2015-01866, Paper 6 at 2-3 (PTAB Nov. 20, 2015) (granting patent
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`owner’s request to file a motion for additional discovery regarding a supply
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`agreement that could contain indemnification obligations as it could establish that
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`petitioner and third party were privies.); Arris Grp., Inc. v. C-Cation Techs., LLC,
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`IPR2014-00635, Paper 10 at 6 (May 1, 2015) (finding that “indemnification
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`8
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`Patent Owner’s Request for Rehearing
`Case IPR2014-01477
`agreements referencing or contingent on Petitioner’s ability to control the
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`[litigation]” were necessary discovery in the interests of justice); Atlanta Gas Light
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`Co. v. Bennett Regulator Guards, Inc., IPR2013-00453, Paper 40 at 4-7 (Apr. 23,
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`2014) (allowing additional discovery on documents and things containing
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`communications regarding a dispute about indemnification); Gen. Elec. Co. v.
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`Transdata, Inc., IPR2014-01559, Paper 23 at 11 (Apr. 15, 2015). (finding a
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`litigation defense agreement established privity); First Data Corp. v. Cardsoft
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`(Assignment for the Benefit of Creditors), LLC, IPR2014-00715, Paper 9 at 7-10
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`(Oct. 17, 2014) (finding an indemnitor, who had control and/or an opportunity to
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`control events leading up to the filing of a petition, to be a RPI). PTAB case law
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`contains many examples of indemnification agreements serving as the basis for
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`finding an unnamed party to be a RPI. That additional indemnification agreements
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`exist in this case—and appear to have been in the possession of PGS’s counsel—
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`should suffice for additional discovery into those agreements. The Board
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`misapprehended the law in denying additional discovery on this issue.
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`The denial of additional discovery also directly contradicts the USPTO
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`Director’s desire to ensure “that the availability of appropriate RPI evidence does
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`not pose a problem for patent owners.” Paper 31 at 7; Ex. 2039. In fact, the
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`Director even provided that “the Board has been increasingly granting motions for
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`such discovery” and that the USPTO plans to “update the Trial Practice Guide to
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`9
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`Patent Owner’s Request for Rehearing
`Case IPR2014-01477
`emphasize the importance of RPI discovery.” Paper 31 at 7; Ex. 2039. Despite
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`this RPI-discovery liberalization, WG has been denied the opportunity to take
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`targeted and specific RPI-related additional discovery, even where essentially no
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`burden existed for the Petitioner. The Board’s denial of discovery into a case-
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`dispositive issue in the face of PGS’s conflicting testimony not only prejudices
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`WG but denies it of its due process rights to defend WG’s interest in the ’607
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`patent.
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`Finally, had PGS not been withholding a “smoking gun,” it surely would
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`have produced these agreements long ago. Accordingly, WG requests that the
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`Board vacate its Decision and grant WG the additional discovery on RPI and
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`privity that it was denied.
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`2.
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`PGS Recently Confirmed that Multi-Klient is an Unnamed
`RPI
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`The Board also overlooked evidence that this proceeding is time-barred
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`because of Multi Klient’s ability to direct, fund, or control the proceeding. Paper
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`65 at 74. PGS failed to identify Multi Klient as an RPI in this proceeding, despite
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`having the chance to do so. Correcting this omission now would be futile as the
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`earliest filing date that could be accorded to the Petition would not fall within the
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`one-year period under § 315(b). See Zoll Lifecor Corp. v. Philips Electronics N.A.
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`Corp., IPR2013-00609, Paper 15 at 16 (PTAB Mar. 20, 2014). Accordingly, the
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`Decision should be vacated as the proceeding is time-barred.
`10
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`Patent Owner’s Request for Rehearing
`Case IPR2014-01477
`As WG explained in its PO Resp., in a district court litigation involving the
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`’607 patent, WesternGeco L.L.C. v. Multi Klient Invest AS et al., Case 4:14-cv-
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`03118 (S.D. Tex. Oct. 31, 2014), PGS conceded that Multi Klient was an interested
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`party in the ’607 patent’s subject matter. Paper 39 at 60; Ex. 2066. WG
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`immediately raised this omission to PGS when there was still time for PGS to cure
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`this mistake without forfeiting its petition. Paper 39 at 60; Ex. 2025. PGS refused
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`to correct its Petition, however, preferring to avoid the estoppel of § 318(e) to re-
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`raise invalidity defenses in the district court should PGS fail in its Petition.
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`In fact, right after the Oral Hearing in this proceeding, PGS admitted to
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`Multi Klient being an unnamed RPI when it so named Multi Klient as a RPI in two
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`recently filed IPR Petitions challenging the validity of two WG patents asserted
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`alongside the ’607 patent in the same district court litigation. IPR2016-00407,
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`Paper 1 at 3; IPR2016-00499, Paper 3 at 14. PGS’s disclosure of Multi Klient as
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`an RPI in IPR2016-00407 and IPR2016-00499 is a post hoc admission that Multi
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`Klient should have been named in this proceeding and confirms that additional
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`discovery is necessary and was improperly denied.1
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`1 The Board’s denial of WG’s rehearing request in IPR2014-00688 was incorrect
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`as PGS’s identification of Multi Klient as a RPI was not late evidence, it was a
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`substantive admission that the Board lacked subject matter jurisdiction to maintain
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`11
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`Patent Owner’s Request for Rehearing
`Case IPR2014-01477
`Even if PGS’s admission were considered to be late evidence, the Board
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`should consider it here for it shows that this Board lacks jurisdiction to hear this
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`case. Also, evidence may be admitted in a rehearing request if there is a “showing
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`of good cause.” Office Patent Trial Practice Guide, 77 Fed. Reg. 157, 48756,
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`48768 (Aug. 14, 2012). It was impossible for WG to bring this admission to the
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`Board’s attention in prior submissions, or even at the oral hearing, as PGS
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`intentionally delayed filing its petitions in the other two IPRs until after it believed
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`the record was closed in this case because PGS was aware that WG believed Multi
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`Klient to be an RPI in this proceeding. See IPR2016-00407, Paper 1 at 3;
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`IPR2016-00499, Paper 3 at 14. This gamesmanship and abuse of discovery
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`obligations provides “good cause” to consider PGS’s willfully withheld evidence.
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`See Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003) (factors
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`such as the existence of circumstances beyond the control of the parties, the
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`parties’ negligence, whether delay was excusable under the circumstances, and
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`whether the party exercised due diligence are factors considered when assessing
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`whether a “showing of good cause” exists).
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`For these reasons, the Board should grant rehearing and vacate the final
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`written decision as the Petition is time-barred or, in the alternative, grant WG
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`these proceedings. See Petroleum Geo-Services, Inc. v. WesternGeco, LLC,
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`IPR2014-00688, Paper 106 at 11-12 (PTAB Mar. 17, 2016).
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`12
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`Patent Owner’s Request for Rehearing
`Case IPR2014-01477
`additional discovery on Multi Klient’s relationship to this proceeding.
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`B.
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`The Board Erred in Finding That PGS Was Not “Served” Under
`35 U.S.C. § 315(b)
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`The Board erred in not terminating this proceeding as time-barred because
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`PGS was served on March 14, 2011 with a complaint alleging infringement of the
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`’607 patent—well over a year before filing its Petition. See 35 U.S.C. § 315(b).
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`The Board’s Decision overlooks WG’s evidence and arguments that PGS was
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`served under § 315(b) and fails to consider this case-dispositive issue.
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`WG has raised the issue that PGS was served with process in the ION
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`litigation over a year before filing its Petition. See Paper 11 at 9-12; Paper 39 at
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`55. PGS was first provided with a copy of the Complaint in the ION litigation
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`notifying it of its infringement liability for using DigiFIN on December 8, 2009.
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`Ex. 2008; Paper 11 at 9; Paper 39 at 55. And later, when PGS did not cooperate
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`with providing discovery, on January 22, 2010, WG subpoenaed PGS through
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`service of process and identified “DigiFIN” as the accused product in the litigation.
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`Ex. 2009; Paper 11 at 9; Paper 39 at 55. After being served with process, PGS
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`appeared in the ION litigation through its outside counsel, Heim, Payne &
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`Chorush. Ex. 2011; Paper 11 at 9; Paper 39 at 55. And, on March 14, 2011, when
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`WG filed its Amended Complaint alleging DigiFIN’s infringement, PGS was
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`served with the Complaint via the court’s electronic filing system (“ECF”). Paper
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`11 at 9-10; see also Exs. 2013, 2033.
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`13
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`Patent Owner’s Request for Rehearing
`Case IPR2014-01477
`PGS’s service of the Complaint met the requirement under 35 U.S.C. §
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`315(b) and barred PGS from bringing this Petition. “An inter partes review may
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`not be instituted if the petition requesting the proceeding is filed more than 1 year
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`after the date on which the petitioner, real party in interest, or privy of the
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`petitioner is served with a complaint alleging infringement of the patent.” 35
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`U.S.C. § 315(b). “The word ‘served’ has a definition that includes ‘to make legal
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`delivery of (a notice or process)’ or ‘to present (a person) with a notice or process
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`as required by law.’” Motorola Mobility LLC v. Arnouse Digital Devices Corp.,
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`IPR2013-00010, Paper 20 at 4 (PTAB Jan. 30, 2013) (quoting Black’s Law
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`Dictionary, 1491, Ninth Edition (2009)) (emphasis in original). “Served,” as used
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`in § 315 means this legally operative act, rather than the colloquial meaning of
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`mere receipt. Id. at 3-4. And interpreting “served” in accordance with Black’s
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`Law Dictionary is in accord with the legislative purpose of Section 315(b), “to
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`provide defendants sufficient time to fully analyze the patent claim, but not to
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`create an open-ended process.” Id. at 4 (citing legislative history) (emphasis
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`added).
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`PGS was served with—and did not merely receive—the complaint. See S.D.
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`Tex. L.R. 5.1 (“[T]he Court's electronic filing system constitutes service of the
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`document”) (emphasis added); Onwuchekwe v. Okeke, 404 F. App’x 911, 912 (5th
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`Cir. 2010) (“[R]eliance on the court's electronic filing system is an acceptable form
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`
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`14
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`Patent Owner’s Request for Rehearing
`Case IPR2014-01477
`of service under the local rules”); Standard Morgan Partners, Ltd. v. Union Ins.
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`Co., No. CIV.A. H-09-4145, 2011 WL 1806499, at *2 (S.D. Tex. May 11, 2011)
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`(“Registration as a Filing User constitutes consent to electronic service of all
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`documents . . . in accordance with Rule Fed. R. Civ. P. 5(b)(2)(D).”) (emphasis
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`added)). Additionally, the Board’s decision in IPR2014-00688 denying WG’s
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`rehearing request, misinterpreted the facts by finding that PGS was simply given a
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`complaint with a subpoena. Petroleum Geo-Services, Inc. v. WesternGeco LLC,
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`IPR2014-00688, Paper 106 at 5-6 (PTAB Mar. 17, 2016). As discussed above,
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`service was much more extensive than the mere receipt of the complaint.
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`Accordingly, WG requests that the Board grant rehearing, vacate its
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`Respectfully submitted,
`Oblon, McClelland, Maier &
`Neustadt, LLP
`
`
`
`/Michael L. Kiklis/
`Michael L. Kiklis
`Registration No. 38,939
`
`Attorney for Patent Owner
`WESTERNGECO L.L.C.
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`
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`Decision, and terminate this proceeding.
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`Dated: April 15, 2016
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`Customer Number
` 22850
`Tel. (703) 413-3000
`Fax. (703) 413-2220
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`15
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies service of PATENT OWNER’S
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`REQUEST FOR REHEARING UNDER 37 C.F.R. § 42.71(d) on the counsel of
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`record for the Petitioners by delivering a copy via electronic mail to the following
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`addresses:
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`David Berl
`dberl@wc.com
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`Jessamyn Berniker
`jberniker@wc.com
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`Thomas S. Fletcher
`tfletcher@wc.com
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`Christopher Suarez
`csuarez@wc.com
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`/Michael L. Kiklis/
`Michael L. Kiklis
`Registration No. 38,939
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`Attorney for Patent Owner
`WESTERNGECO L.L.C.
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`Date: April 15, 2016
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