Ex. PGS 1018
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 1 of 30
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`) Civil Action No. 4:09-CV-01827
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`Judge Keith P. Ellison
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`Jury Trial Demanded
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`WESTERNGECO L.L.C.,
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` Plaintiff,
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` v.
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`ION GEOPHYSICAL CORPORATION,
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`Defendant.
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`WESTERNGECO’S OPPOSITION TO ION’S RENEWED MOTION
`FOR JUDGMENT AS A MATTER OF LAW AND ALTERNATIVE
`MOTION FOR NEW TRIAL REGARDING NON-INFRINGEMENT (D.I. 556)
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`Lee L. Kaplan
`lkaplan@skv.com
`SMYSER KAPLAN
` & VESELKA, L.L.P.
`Bank of America Center
`700 Louisiana, Suite 2300
`Houston, TX 77002
`Tel: (713) 221-2323
`Fax: (713) 221-2320
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`Attorneys for Plaintiff
`WesternGeco L.L.C.
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`Of Counsel:
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`Gregg F. LoCascio, P.C.
`gregg.locascio@kirkland.com
`KIRKLAND & ELLIS LLP
`655 Fifteenth Street, N.W.
`Washington, D.C. 20005-5793
`Tel.: (202) 879-5000
`Fax: (202) 879-5200
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`Timothy K. Gilman
`timothy.gilman@kirkland.com
`Ryan Kane
`ryan.kane@kirkland.com
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, New York 10022
`Tel.: (212) 446-4800
`Fax: (212) 446-4900
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`Dated: October 26, 2012
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`Ex. PGS 1018
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 15 of 30
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`leveling devices that do not generate lateral forces, ION cannot infringe because not “all”
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`streamer positioning devices contribute to turning. (D.I. 556 at 11–12) This argument fails for
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`at least three independent reasons. First, neither the claim language nor the Court’s construction
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`requires that all of the “streamer positioning devices” participate in the turn control mode.
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`Rather the Court required only that “streamer positioning device(s),” i.e., one or more, generate
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`the force opposite the turn and that these devices then enter the feather angle mode. (D.I. 120 at
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`45) Mr. Brune, ION’s expert, confirmed this fact. (Trial Tr. at 3913:9–20, 3914:5–10) Second,
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`it is not clear the DigiBIRDs are even “streamer positioning devices” as claimed in the Bittleston
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`patents. As the Court previously noted, a purely depth-control device is likely not within the
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`scope of the claims. (See D.I. 120 at 14) Therefore, the presence or absence of DigiBIRDs is
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`irrelevant. And third, claim 18 of the ’520 patent is a “comprising” claim, i.e., it is infringed if
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`all of the limitations are satisfied even if there are additional elements in the accused product.
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`Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1344–45 (Fed. Cir. 2003). Because
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`ION’s DigiFIN operates in a “turn control mode,” it is irrelevant to the infringement question
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`whether a user additionally attaches DigiBIRD devices to its streamers. ION fails to address the
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`record evidence supporting the jury’s verdict, and instead pushes arguments that disregard the
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`claim language, the Court’s claim construction and the admissions of ION’s own witnesses. The
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`jury’s verdict is amply supported by evidence of infringement, and ION’s motion accordingly
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`must fail.
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`B.
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`ION Infringes Claim 15 Of The ’607 Patent
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`The sole basis for ION’s contention that it does not infringe claim 15 of the ’607 patent is
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`its argument for a new claim construction of “predict”—previously rejected by the Court—that
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`limits “prediction” to future “wall-clock” times. There is no dispute that this limited definition
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`of “predict” is not the plain and ordinary meaning of “predict” to a person of ordinary skill in the
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`Ex. PGS 1018
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 16 of 30
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`art, nor is it the construction the Court reached during claim construction proceedings. It is
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`undisputed that ION infringes under the ordinary meaning of “predict” to one of skill in the art,
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`which fact is dispositive. Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005).
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`i.
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`WesternGeco Presented Considerable Evidence of Infringement
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`WesternGeco’s ’607 patent claims a control system including a “prediction unit,” e.g.,
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`“position predictor software to estimate the actual locations of the [streamer positioning
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`devices].” (PTX 3 at 4:53–55 (emphasis added)) Because the size of the array being
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`steeredleads to delay and error with location measurements, past data is projected forward in
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`time to predict later positions. It is undisputed that ION’s DigiFIN system runs a “Kalman filter”
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`that predicts the actual positions of the DigiFINs in this exact manner. (Trial Tr. at 1549:14–16
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`(“MR. PIERCE: All the -- they keep referring to the prediction in our code, which is a Kalman
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`filter, as Your Honor has heard a lot about.”)) As ION agrees, the Kalman filter “uses a past
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`measurement to ‘predict’ the present position of the DigiFINs.” (D.I. 470 at 8) WesternGeco’s
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`technical experts—Dr Triantafyllou and Dr. Leonard—testified how ION’s Kalman filter
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`predicts the positions of DigiFIN devices. (See, e.g., Trial Tr. at 1273:25–1280:4, 1345:9–
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`1354:13, 1512:2–1523:1) And the record evidence confirms that the term “predict,” as used in
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`the art of control systems, merely means moving a past measured position forward to a later
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`time. (Trial Tr. at 1403:17–19, 1407:8–14, 1408:21–1409:16, 1530:7–13, 1539:11–1540:8) It
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`does not require—nor does it preclude—that the prediction be in the “future” based on a “wall
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`clock.” ION’s expert, Mr. Brune, confirmed this usage of “prediction,” as well as Dr. Leonard’s
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`testimony. (See Trial Tr. at 3811:3–14, 3930:11–16) It is undisputed that ION infringes under
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`this use of the term “predict.”
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`ION’s product documentation uses the term “predict” to describe ION’s Kalman filter.
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`(PTX 171 at 5 (emphasis added); see also Trial Tr. at 1349:21–1354:13, 1512:2–1513:2)
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 17 of 30
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`Crawford Macnab, ION’s software manager, confirmed ION’s “prediction.” (Trial Tr. at
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`2055:24–2056:4 (“It’s predicting the position of all nodes.”); see also id. at 3352:2–14, 3366:18–
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`3367:9) ION’s source code—presumably written by engineers skilled in the art—uses the term
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`“prediction” hundreds of times to describe ION’s infringing products. (See, e.g., Trial Tr.
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`1514:6–1522:4, 1526:16–1527:18; PTX 273; PTX 274; PTX 282; PTX 561) ION’s technical
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`expert failed to offer any non-infringement opinion for the ’607 patent. (Trial Tr. at 3930:5–10)
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`Based on this record evidence—full of both sides’ expert testimony, ION engineer testimony and
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`ION’s product documentation all confirming that ION’s system “predicts” positions—the jury’s
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`verdict was proper, amply supported, and should not be disturbed.
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`ii.
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`The Jury’s Verdict Is Consistent with the Ordinary Meaning of
`“Predict” in the Field of the Patents
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`This Court previously expressed that “Defendants have not persuaded the Court that one
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`meaning should be attributed to the term ‘predict’ when it is used in WesternGeco’s patents, but
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`that an entirely different meaning applies to the word as used in [ION’s] Kalman filter’s source
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`code.” (D.I. 365 at 52) “Ultimately, the expert testimony, including testimony from ION’s own
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`expert, suggests that such divergence between the two meanings may not exist.” (Id.; see also
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`Trial Tr. at 3811:3–14, 3812:20–24 (ION’s expert, Mr. Brune))
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`Dr. Triantafyllou testified that one of ordinary skill in the art of control systems would
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`consider software like ION’s Kalman filter to “predict” positions. (See, e.g., id. at 1276:6–
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`1277:16, 1346:21–1347:21, 1348:14–20) Both Dr. Triantafyllou and Dr. Leonard also testified
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`that this use of the term “predict” was consistent with its general usage in the field of control
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`systems. (Trial Tr. at 1407:18–23, 1528:25–1529:6) And the ’607 patent teaches examples of
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`“prediction” that estimates present-time locations:
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 20 of 30
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`proposition that “a party prevailing on an issue of claim construction cannot argue for a differing
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`claim construction following an adverse jury verdict.” Cordis, 658 F.3d at 1355; see also
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`Fenner, 632 F. Supp. 2d at 638. WesternGeco prevailed at claim construction and seeks nothing
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`new. ION, in contrast, seeks precisely what was rejected in Cordis and Fenner—to revisit a
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`decided claim construction post-verdict. ION’s purported reliance on Central Admixture Pharm.
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`Servs., Inc. v. Advanced Cardiac Solns., P.C., 482 F.3d 1347, 1356 (Fed. Cir. 2007) is also
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`misplaced. Unlike the party in Central Admixture, however, WesternGeco specifically asserted
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`that “predict” had its ordinary meaning to one of skill in the art and was not limited to future
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`times, and accordingly, WesternGeco did not “waive” this position. Substantial evidence
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`supports the jury’s verdict under the Court’s claim construction, and ION’s motion accordingly
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`should be denied.
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`C.
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`ION Infringes Claim 15 Of The ’967 Patent
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`Claim 15 of the ’967 patent provides:
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`An array of seismic streamers towed by a towing vessel comprising: (a) a
`plurality of streamer positioning devices on or inline with each streamer, at least
`one of the streamer positioning devices having a wing; (b) a global control system
`transmitting location information to at least one local control system on the at
`least one streamer positioning device having a wing, the local control system
`adjusting the wing.
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`(PTX 2 at Claim 15) ION contends that the “location information” limitation is not met because
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`a reasonable juror could not conclude that the “fin angle” information sent from ION’s lateral
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`controller to the DigiFIN units comprises “location information.” (D.I. 556 at 17–20) As an
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`initial matter, ION is incorrect in arguing that the Lateral Controller only sends a desired fin
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`angle to the DigiFINs. (D.I. 556 at 7, 18) ION’s user manual shows that the Lateral Controller
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`also sends “operating mode commands” and other location information to the DigiFINs. (PTX 9
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`at ION 15134) But in any event, WesternGeco presented substantial evidence that a commanded
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`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 21 of 30
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`fin angle comprises “location information.” WesternGeco’s expert, Dr. Triantafyllou, testified
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`that the fin angle indicates how much force is needed to keep the streamers at their target
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`separation. (Id. at 1338:22–1339:17) ION’s engineers and product literature confirm that the
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`commanded fin angle is based directly on the location separations between adjacent streamers.
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`(Id. at 1488:4–25; PTX 8) The commanded fin angle accordingly provides information about
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`location because “to find the fin angle, you have to know where you are and where you go.”
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`(Trial Tr. at 1338:22–1339:15; see also id. 1385:22–1386:8, 1386:16–1387:17, 1393:25–
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`1394:11) Mr. Brune, ION’s technical expert, agreed that ION’s system used location
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`information to calculate the fin angle, which is sent to the DigiFINs in the water. (Trial Tr. at
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`3926:10–19) This record evidence supports the verdict as well as confirms that ION literally
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`infringes under the Court’s claim construction.
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`To the extent that the fin angle is not literally location information, Dr. Triantafyllou also
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`testified that the fin angle is “an equivalent concept, whether you send location or a fin
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`calculated on location.” (See, e.g., Trial Tr. at 1463:9–22) For example, “the fin angle is a
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`function, direct function, you can write it down as a function of the location.” Id. This is
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`confirmed by ION’s engineering documents, which show a proportional relationship between
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`locations and the fin angle sent to each DigiFIN. (PTX 269) To the extent the fin angle
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`represented a specific direction, “that direction is equivalent to giving you the information and
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`telling you to calculate it.” (Trial Tr. at 1464:17–22) Accordingly, in addition to the evidence of
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`literal infringement discussed above, WesternGeco presented considerable evidence supporting
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`infringement under DOE as well. Dawson, 978 F.2d at 208; see also Cummins-Allison, 2012
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`WL 1890153 at *4.
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