441897US
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`———————————
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`———————————
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`PETROLEUM GEO-SERVICES INC.
`Petitioner
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`v.
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`WESTERNGECO LLC
`Patent Owner
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`———————————
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`Case IPR2014-01477
`U.S. Patent No. 7,080,607
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`———————————
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`PATENT OWNER PRELIMINARY RESPONSE
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`Pursuant to 37 C.F.R. § 42.107(a), Patent Owner, WesternGeco L.L.C
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`(“WesternGeco” or “Patent Owner”), submits this Preliminary Response to the
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`Second Petition for Inter Partes Review (“Petition”) against claims 16-23 of U.S.
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`Patent No. 7,080,607 (“the ’607 patent”) filed by Petitioner, Petroleum Geo-
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`Services, Inc. (“PGS” or “Petitioner”). Petitioner has also challenged claims 1 and
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`15 in IPR2014-00688.
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`Case IPR2014-01477
`Patent Owner Preliminary Response
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`I.
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`II.
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`TABLE OF CONTENTS
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`The ’607 Patent Claims Predictive Steering of Streamer Arrays .................... 1
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`Petitioner Partnered With ION to Copy the ’607 Patent ................................. 5
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`III. The Petition Need Not Be Considered on the Merits ...................................... 6
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`A.
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`B.
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`C.
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`The Petition is Doubly-Redundant to the Grounds Set Forth in
`IPR2014-00688 ..................................................................................... 6
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`The Petition is Time-Barred under 35 U.S.C. § 315(b) ........................ 9
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`The Petition Fails to Name All Real-Parties In Interest ...................... 12
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`i.
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`ii.
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`PGSAI Is an Unnamed RPI ....................................................... 13
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`ION Is an Unnamed RPI ........................................................... 16
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`iii.
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`ION Is a Privy Regarding Validity of the ’607 Patent .............. 19
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`IV. Claim Construction ........................................................................................ 21
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`A.
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`B.
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`Streamer Positioning Device ............................................................... 21
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`Additional Terms Proposed By Petitioner .......................................... 27
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`V.
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`The Board Should Not Institute Inter Partes Review of the ’607
`Patent ............................................................................................................. 27
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`VI. Petitioner’s Grounds For Instituting Inter Partes Review Fail To
`Show A Reasonable Likelihood That Claims 16-23 of the ’607 Patent
`are Obvious .................................................................................................... 28
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`A. Ground 1: Claims 16 and 17 Are Not Rendered Obvious by the
`’636 PCT In View Of Gikas ................................................................ 28
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`B.
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`Ground 2: Claims 18-20 Are Not Rendered Obvious By The
`’636 PCT In View Of Gikas And Spink ............................................. 32
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`C. Ground 3: Claims 21-23 Are Not Rendered Obvious By The
`’636 PCT In View Of Gikas, Spink, And The ’394 PCT ................... 39
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`D.
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`The Petition Is Legally Insufficient Because Petitioner Fails to
`Address the Secondary Indicia of Non-Obviousness .......................... 40
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`VII. Conclusion ..................................................................................................... 41
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`I.
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`The ’607 Patent Claims Predictive Steering of Streamer Arrays
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`The ’607 patent covers methods and apparatus for using predicted positions
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`of streamer positioning devices to calculate steering commands in order to steer
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`miles-long streamer arrays despite limited location data in order to better image
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`geological structures, improve the streamers’ effectiveness, repeat surveys over
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`time to manage resource recovery, and more safely and rapidly deploy and turn the
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`arrays.
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`Marine seismic surveys use reflections of
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`sound waves to analyze underwater natural resource
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`formations. (Ex. 1001, at Fig. 1.) Seismic streamers
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`(12) are cables up to many miles in length that are
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`towed behind survey vessels. An acoustic source
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`(14), such as an air gun, is used to generate an
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`acoustic signal towards the ocean floor. Seismic
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`sensors, such as hydrophones (18), are spaced along
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`the length of each streamer and are used to detect the
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`reflected acoustic signal. The resulting data can be
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`used to map the subsurface geology for natural
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`resource exploration and management.
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`Historically, a single streamer was towed behind the ship for a few hundred
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`meters. This yielded a short cross-section or “2-D” image of the subsurface
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`geology. As the industry evolved, arrays of multiple side-by-side streamers have
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`been deployed, allowing the capture of more robust “3-D” maps—as Petitioner’s
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`art shows, some of these approaches date back to 1967.
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`Early streamer positioning involved rudimentary devices such as deflectors
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`and tail buoys. (Ex. 1001, at 3:34-39; Fig. 1 elements (16) and (20, respectively).)
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`Deflectors were associated with the front end of the streamer and used to
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`horizontally spread the end of the streamer nearest the seismic survey vessel. (Id.
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`at 1:34-41.) Tail buoys were associated with ropes or cables secured to the end of
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`the streamer furthest from the seismic survey vessel, and created drag on that end
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`of the streamer. (Id. at 1:39-41; 3:37-39.) The tension created on the seismic
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`streamer by the deflector and tail buoy resulted in a roughly linear shape. (Id. at
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`1:34-41.) Both tail buoys and deflectors floated at the surface and could rely on
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`GPS to determine their positions. No steering was provided for the miles of length
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`along the streamer.
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`Streamer positioning devices are generally spaced every 200 to 400 meters
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`along the length of a streamer. (Ex. 1001, at 1:48-49.) For a modest streamer
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`array, this means hundreds, sometimes over a thousand, separate streamer
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`positioning devices are deployed on a given array. Simultaneously controlling this
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`multitude of independent positioning devices is no mean feat. While it is easy to
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`set a target depth and little risk exists if that depth is overshot, lateral steering
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`requires considerations of the dynamical movement of neighboring streamers and
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`obstructions along miles of cable deployed in the ever-changing open-water
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`environment of the deep seas. Unless properly controlled, lateral steering can
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`make streamer arrays more dangerous than no steering at all.
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`The complexity of
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`these streamer arrays
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`led
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`to several widely
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`acknowledged, decades-old problems, including the risk of tangling, a potentially
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`catastrophic and dangerous failure. (Ex. 1001, 4:5-7.) Movement of the streamers
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`relative to each other during surveys can lead to gaps in coverage, requiring
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`repeated passes, or “in-fill,” over the same section of water. And turning such long
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`arrays in the water can take significant time and effort, and likewise increases the
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`risk of tangling. Despite a well-known need for the ability to accurately steer these
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`arrays, the complex nature of the problem prevented a workable solution from
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`being developed for many years.
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`Compounding these difficulties were the challenges of even knowing where
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`the streamers were during surveys. These miles-long cables towed underwater in
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`the harsh conditions of open deep-water had minimal sensory equipment and long
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`signal latency in communicating data to the towing vessel. While GPS could be
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`relied upon to determine the positions of tail buoys or deflectors floating on the
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`ocean surface, it could do little to assess the position of streamers, which are towed
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`underwater. Trying to steer these streamers during a survey would essentially be
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`“driving blind,” and attempts to steer could prove more dangerous than towing
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`with no steering at all. As taught in Petitioner’s art, prior to Patentee’s inventions,
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`determining positions accurately could only be accomplished long after a survey
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`was completed, using intensive computational processes.
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`As explained in the background Section of the ’607 patent, seismic arrays
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`typically allow for the determinations of horizontal positions of the streamers only
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`every 5 to 10 seconds. (Ex. 1001, at 2:35-38.) And because complex data
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`processing is often involved, there may be an additional 5-second delay between
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`taking of the measurements and the determination of actual streamer positions. Id.
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`That means the information provided to the control system is not where the
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`streamer positioning device currently is, but where the streamer positioning device
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`was at some time in the past. And this location data was typically obtained from
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`compass measurements, which were aggregated to try to determine the rough
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`shape of a streamer. Trying to steer streamer arrays is therefore even more
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`difficult as, to a certain extent, they have to be steered blind. The ’607 patent
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`tackled these and other challenges to launch the world’s first steerable streamer
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`array, as discussed below.
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`II.
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`Petitioner Partnered With ION to Copy the ’607 Patent
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` And the development documents echo the ’607 patent’s claimed
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`control architecture, such as “mathematical and dynamic model of the streamer”
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`and “response speed of the system … would need extensive mathematical
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`modeling.” (Ex. 2005, ION15987-93.)
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`III. The Petition Need Not Be Considered on the Merits
`A. The Petition is Doubly-Redundant to the Grounds Set Forth in
`IPR2014-00688
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`As noted above, Petitioner previously challenged claims 1 and 15 of the ’607
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`patent in IPR2014-00688. There, trial was instituted in view of U.S. Patent No.
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`5,790,472 to Workman et al. (“Workman”). However, in light of the Board’s
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`decision to institute review on the Workman grounds, the Board determined not to
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`institute trial on the redundant combination of Gikas and the ’636 PCT. (IPR2014-
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`00688, Paper 33 at 31-32.) In a doubly-redundant manner, the present petition is
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`based exclusively on the previously rejected base combination of the ’636 PCT and
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`Gikas.1
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`Moreover, in challenging claim 15 in the present petition (from which
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`specifically challenged claims 16-23 depend), Petitioner relies on Gikas’ disclosure
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`1 Spink is cited on the face of the ’607 patent and has already been considered by
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`the PTO.
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`of a Kalman filter as allegedly teaching the position prediction limitations of the
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`challenged claims. (See Petition at 29-32.) However, this is substantially identical
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`and redundant to Petitioner’s argument in the first IPR regarding Workman.
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`There, Petitioner argued that Workman’s disclosure of a Kalman filter teaches the
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`position prediction limitation of the challenged claims. (See IPR2014-00688,
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`Paper 33 at 22-24.)
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`Petitioner has provided no rationale as to why its arguments against claims
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`16-23, which rely on the same disclosure in the prior art as allegedly teaching the
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`position prediction limitations of the challenged claims, and could have been raised
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`in IPR2014-00688, are non-redundant to the grounds presented in IPR2014-00688.
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`Because Petitioner’s current Petition is based upon the same or substantially the
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`same prior art and arguments as applied in IPR2014-00688, the Petition should be
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`denied under 35 U.S.C. § 325(d). See, e.g., Zimmer Holdings Inc. v. Bonutti
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`Skeletal Innovations LLC, IPR2014-01080, Paper 17 at 5-6 (October 31, 2014);
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`Conopco, Inc d/b/a Unilever v. The Procter & Gamble Co., IPR2014-00628, Paper
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`No. 21 at 6 (Oct. 20, 2014) (“We have compared the prior art and arguments raised
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`in the instant Petition to those raised in the 510 Petition. Based on the information
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`presented, we are persuaded that the instant Petition raises, at minimum,
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`‘substantially the same . . . arguments’ that ‘previously were presented to the
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`Office’ in the 510 Petition.”); Conopco, Inc d/b/a Unilever v. The Procter &
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`Gamble Co., IPR2014-00507, Paper No. 17 at 6 (Jul. 7, 2014); SAS Inst., Inc. v.
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`Complement Soft, LLC, IPR2014-00581, Paper No. 15, at 4 (Dec. 30,
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`2014) (“Further, based on the record before us and exercising our discretion under
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`35 U.S.C. § 325(d) we deny the petition as to the grounds listed below because
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`these grounds are based upon substantially the same prior art and arguments as set
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`forth in IPR2013-00226.”), reh’g denied, Paper No. 17 (Feb. 25, 2014). Moreover,
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`allowing Petitioner to file serial petitions on the same patent, using substantially
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`the same prior art and arguments is unfair to the Patent Owner by forcing it to
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`incur unnecessary costs and continually defend its patent against repetitious
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`attacks.
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`Consideration of these redundant grounds would unnecessarily consume
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`time and resources for both the PTAB and Patent Owner, and review should not be
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`instituted against claims 16-23. See 35 U.S.C. 325(d) (“In determining whether to
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`institute or order a proceeding under this chapter, chapter 30, or chapter 31, the
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`Director may take into account whether, and reject the petition or request because,
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`the same or substantially the same prior art or arguments previously were
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`presented to the Office.”).
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`The Petition is Time-Barred under 35 U.S.C. § 315(b)
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`B.
`Patent Owner filed a complaint for patent infringement against ION on June
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`12, 2009 alleging, inter alia, that ION infringed the ’607 patent by virtue of
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`making, using or selling DigiFIN. (Ex. 2007.) Patent owner then filed a complaint
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`against Fugro for its related infringement as an ION DigiFIN customer, which was
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`consolidated with ION. (Ex. 2037.) On December 8, 2009, Patent Owner noticed
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`Petitioner of its related infringement liability for using DigiFIN by providing it
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`with a copy of the complaint. (Ex. 2008.) When Petitioner did not cooperate with
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`providing litigation discovery, Patent Owner subpoenaed Petitioner through service
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`of process on January 22, 2010 and identified “DigiFIN” as the accused product in
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`the litigation. (Ex. 2009 [service copy with affidavit].) And in a subsequent
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`motion to compel discovery, Patent Owner identified Petitioner as one of the ION
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`“customers who assemble [DigiFINs] into infringing systems either within the
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`United States or abroad.” (Ex. 2010, ION D.I. 81.)
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`On February 8, 2010, after being served with process, Petitioner appeared in
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`the ION litigation through its outside counsel, Heim, Payne & Chorush. (Ex.
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`2011.) On March 14, 2011, Patent Owner filed its Amended Complaint alleging
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`DigiFIN’s infringement of the ’607 patent. (Ex. 2012.) Petitioner was served with
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`this Amended Complaint that same day via the court’s electronic filing system
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`(“ECF”). See Ex 2013; see also Ex. 2033, S.D. Tex. L.R. 5-1 (“The notice of
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`electronic filing that is automatically generated by the Court’s electronic filing
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`system constitutes service of the document on those registered as filing users of the
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`system.”).
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`“An inter partes review may not be instituted if the petition requesting the
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`proceeding is filed more than 1 year after the date on which the petitioner, real
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`party in interest, or privy of the petitioner is served with a complaint alleging
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`infringement of the patent.” 35 U.S.C. § 315(b). (emphasis added). “The word
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`‘served’ has a definition that includes ‘to make legal delivery of (a notice or
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`process)’ or ‘to present (a person) with a notice or process as required by law.’”
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`Motorola Mobility LLC v. Arnouse, IPR2013-00010 (MT), Paper #20 at 4, (quoting
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`Black’s Law Dictionary, 1491, Ninth Edition (2009)). “Served” as used in 35
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`U.S.C. § 315 means this legally operative act, rather than the colloquial “‘to
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`receive,’ ‘to deliver,’ or ‘to present.’” Id. at 3; see also TRW Automotive US LLC v.
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`Magna Elecs., Inc., IPR2014-00251, Paper #13 (finding that email did not
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`comprise legal “service”). Interpreting “served” in accordance with Black’s Law
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`Dictionary is in accord with the legislative purpose of § 315(b), “to provide
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`defendants sufficient time to fully analyze the patent claim, but not to create an
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`open-ended process.” Motorola, Paper #20 at 4 (citing legislative history). Patent
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`Owner’s service of the Amended Complaint on Petitioner was legal “service,” and
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`therefore satisfies § 315(b).2
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`In dicta, Motorola implies that service of a summons is also required. This
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`requirement is contrary to the plain language of § 315(b). Motorola’s
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`discussion was based in part on Fed. R. Civ. Pro. 4, but that Rule is titled
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`“Summons” and concerns only when service of a summons is effective, not
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`service of a complaint. Motorola also relied on Murphy Bros. v. Michetti Pipe
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`Stringing, 526 U.S. 344 (1999). Id. at 3. But Murphy addressed removal under
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`28 U.S.C. § 1446, which concerned receipt “through service or otherwise, of a
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`copy of the initial pleading,” and the Court was concerned that the “or
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`otherwise” provision was too broad to trigger legal consequence in the absence
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`of due process notification. 526 U.S. at 347, 350. In ION, in contrast,
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`Petitioner was served with process and formally appeared. See Murphy at 350
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`(“Accordingly, one becomes a party officially, and is required to take action in
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`that capacity, only upon service of a summons or other authority-asserting
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`measure.”). In other words, PGS was “brought under a court’s authority, by
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`formal process” before being served with the amended complaint, satisfying
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`any due process concerns. Id. at 347.
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`It was unusual for Petitioner to be served with process, appear in litigation,
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`and be served with an infringement complaint, yet not be a named defendant in the
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`ION litigation. But the plain language of § 315(b) does not require that Petitioner
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`be a defendant. Applying the legally-operative definition of “served,” § 315(b) is
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`limited, as here, to situations where the Petitioner has entered an appearance in the
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`litigation and is actively involved, i.e., because they are interested in the
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`infringement. Should the policy behind § 315(b) be considered here, it favors this
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`plain language reading—once parties identified as liable for infringement are
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`served pursuant to formal legal process, they should promptly seek IPR rather than
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`lay-in-wait and engender duplicative proceedings years down the road.
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`The September 11, 2014 Petition filed by PGS is precluded by the plain
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`language of 35 U.S.C. § 315(b)—it is years overdue. Petitioner was not only
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`“served with a complaint alleging infringement of the [’607] patent” on March 14,
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`2011, but its specific liability for infringement from DigiFIN was outlined therein.
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`Therefore, no review may be instituted based on this Petition.
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`C. The Petition Fails to Name All Real-Parties In Interest
`Disputes regarding identifying real-parties in interest (“RPIs”) have already
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`permeated these proceedings. Petitioner initially identified no RPIs when filing its
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`petition in IPR2014-00688. After discovery proceedings before the Board,
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`Petitioner amended its disclosures and added PGSAS and Petroleum Geo-Services
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`ASA as RPIs, receiving a new filing date and resetting the schedule for these
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`proceedings. Patent Owner then requested, and received, additional RPI discovery
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`from Petitioner in the first IPR proceeding. Based on the record adduced to date,
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`two defects still taint Petitioner’s disclosures and preclude consideration of the
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`Petition under 35 U.S.C. § 312(a)(2).
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`Patent Owner notes that the Board in IPR2014-00688 considered the
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`arguments below and, based upon the current record, declined to deny the Petition.
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`However, Patent Owner maintains these arguments for further development during
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`trial as they relate to statutory requirements under 35 U.S.C. §§ 312 and 315,
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`Patent Owner has requested, but has been denied, discovery in this regard in this
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`proceeding, and the requested information is in the sole possession of Petitioner.
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`Moreover, there is no bright line test for determining whether an unnamed part is a
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`RPI or privy of a petitioner, and the two determinations are not coextensive with
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`one another. Under the flexible, multi-factored approach described by the Practice
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`Guide, a party need not have complete funding and control to be considered an RPI
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`or privy. See 77 Fed. Reg. 48,759-60 (August 14, 2012).
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`i.
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`PGSAI Is an Unnamed RPI
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` ION contacted Mr. Hart in 2011
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`to discuss the ION litigation, the ’607 patent, and using an inventor deposition to
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`try to invalidate the patent. (Ex. 2015, PGSI-T2725-WG-46640.) Mr. Hart
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`attended the 2012 ION trial, discussed the invalidity of the ’607 patent with ION’s
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`trial counsel, and obtained prior art and invalidity contentions for Petitioner’s trial
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`counsel. (Ex. 2016.) Mr. Hart retained trial counsel on behalf of Petitioner and
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`PGSAS. (Ex. 2017.) Petitioner recently identified various emails, calls and
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`meetings regarding the validity of the ’607 patent in which Mr. Hart acted as “PGS
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`[i.e., Petitioner] in-house counsel” or otherwise “on behalf of ‘PGS/Irell’ (Irell &
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`Manella LLP is PGS’ trial counsel).” (Ex. 2018.) In short, Mr. Hart, i.e., PGSAI,
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`controlled the review, dissemination and discussion of the prior art that was
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`presented in the Petition.
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`3 In other words, unnamed PGSAI controlled Petitioner’s DigiFIN
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`activities and those of the named RPIs. (Petitioner has so far refused to reveal
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`whether PGSAI likewise controlled the retention or invoices for Petitioner’s
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`counsel in this proceeding. (Ex. 2018, Interrogatory Responses at 7-9.)
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`Because PGSAI’s counsel is controlling PGS’ interests in the validity and
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`infringement of the ‘607 patent, PGSAI is an RPI. Because Petitioner has failed to
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`identify PGSAI as such, the Petition is deficient and cannot be considered. 35
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`U.S.C. § 312(a)(2).
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`Patent Owner invited Petitioner to amend its disclosures to identify PGSAI
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`as an RPI and to “discuss a modest adjustment of the existing opposition schedule
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`based on the new filing date.” (Ex. 2025.) Petitioner refused.4 Accordingly, the
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`Petition must be dismissed.
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`In the pending litigation between Petitioner and Patent Owner, Petitioner
`3
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`similarly transferred PGSAI’s patents to Petitioner on the eve of its
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`counterclaims so that Petitioner could assert PGSAI’s infringement claims in
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`Petitioner’s name. (Ex. 2024.) For whatever reasons, Petitioner has expended
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`considerable effort attempting to hide PGSAI from these various proceedings.
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`4 Petitioner has produced a vague “Human Resources” memorandum stating that
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`PGSAI’s employees were “transferred” to Petitioner on January 1, 2013. (Ex.
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`ii.
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`ION Is an Unnamed RPI
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` Petitioner and ION have coordinated efforts across multiple forums to
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`promote their joint interests regarding the ’607 patent. Shortly after infringement
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`allegations were raised against the two entities, ION reached out to Petitioner to
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`coordinate on its attempt to invalidate the ’607 patent:
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`Speaking plainly, several PGS employees previously worked for
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`WesternGeco . . . One of these gentlemen, Mr. Hillesund, is a named
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`inventor of the WesternGeco patents . . . ION intends to depose Mr.
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`Hillesund and others . . . ION would be very interested in discussing
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`2026.) This “memo” is irrelevant to PGSAI’s role prior to that date, and there
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`is no indication that Mr. Hart stopped representing PGSAI after that date. Mr.
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`Hart never notified ION of any change to their express agreement that he
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`represented only PGSAI in dealings concerning the validity of the ’607 patent.
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`And there is no indication that Mr. Hart believed he was representing anyone
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`other than PGSAI. PGSAI still exists as an independent corporation today, and
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`if “all employees” were transferred out of it last year then other PGS
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`employees—like Mr. Hart—must still be representing PGSAI’s interest and
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`acting on its behalf.
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`mutually beneficial opportunities to improve our access to PGS
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`employees . . . It is our belief that such testimony will help, at least,
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`to invalidate the WesternGeco patents.
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`(Ex. 2015.)
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`ION’s attempts to protect Petitioner’s rights to use DigiFIN comprised
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`multiple invalidity attacks at trial, including many arguments similar to those
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`raised in the Petition. Petitioner attended the trial at ION’s invitation, and raised
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`comments and questions regarding the same between their respective counsel
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`during those proceedings. (Ex. 2016.) During this period, Petitioner began
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`claiming a “common interest privilege” over its communications with ION
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`regarding “WG litigation” and “litigation interests.” (Ex. 2028.) Petitioner has
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`based this privilege assertion on “Western[Geco]’s litigiousness on the subject of
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`DigiFIN gives rise to a common legal interest regarding the patent infringement
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`assertions.” (Ex. 2029.) And Petitioner is currently arguing in the district court
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`litigation that ION’s trial arguments and damages now protect Petitioner from any
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`infringement liability. (Ex. 2030.)
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`ION’s invalidity arguments failed at trial, and ION filed a notice of appeal
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`and docketing statement indicating that it would appeal those issues. (Ex. 2031.)
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`Petitioner continued to meet with ION to discuss specific references and invalidity
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`theories, and potential arguments to raise in these proceedings. (Ex. 2018.)
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`Petitioner has refused to produce the majority of these communications through its
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`continued invocation of a common interest privilege. (Ex. 2030.) But now that
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`Petitioner has challenged the validity of the ’607 patent, ION has dropped that
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`issue from its pending appeal, apparently relying on potential collateral effects of
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`Petitioner’s current efforts under a lessened burden instead.5
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`This web of interlaced interests and unified legal efforts regarding the ’607
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`patent, infringement liability therefor and the validity thereof, renders ION and
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`Petitioner real-parties-interest with respect to this Petition. Petitioner and ION
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`have coordinated their invalidity attacks against WesternGeco’s patents and are
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`each relying on the collateral effects of the other’s legal proceedings to protect
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`5 Conversely, ION has filed an opposition to WesternGeco’s EPO counterpart to
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`the ’607 patent, whereas Petitioner has not, apparently piggy-backing on ION’s
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`efforts in that forum.
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`their own interests. Notably, Petitioner’s invocation of a common interest
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`privilege under Fifth Circuit law is limited to actual or “potential co-defendants.”
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`In re Santa Fe, 272 F.3d 705, 711 (5th Cir. 2001). This jibes with the PTAB
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`Practice Guide, which notes that to establish an RPI relationship, “it should be
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`enough that the nonparty has the actual measure of control or opportunity to
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`control that might reasonably be expected between two formal coparties.” PTAB
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`Trial Practice Guide at 48,759. ION’s involvement with the Petition is at least as
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`comprehensive as if ION and Petitioner were formal codefendants—and arguably
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`significantly more given
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`ION’s ultimate
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`responsibility
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`for Petitioner’s
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`infringement liability and ION’s role as the source for references and arguments
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`for the Petition. ION is an unnamed RPI, and also was served with an
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`infringement complaint more than one year prior to the Petition. The Petition
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`therefore fails under both § 312(a)(2) and § 315(b), and need not be considered on
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`the merits.
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`ION Is a Privy Regarding Validity of the ’607 Patent
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`iii.
`If not a real-party in interest, ION is at least in privity with Petitioner and
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`other real-parties in interest regarding the validity of the ’607 patent:
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`• ION and Petitioner share the same interests regarding the validity of the
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`’607 patent. (Ex. 2016 (2011 email discussing “mutually beneficial
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`opportunities . . . to invalidate the WesternGeco patents”)).
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`•
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`
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`• ION and Petitioner invoked a common-interest privilege beginning in
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`2012 regarding their discussions and cooperation regarding the ’607
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`patent, the ION litigation and the Petition. (Ex. 2029.)
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`• Petitioner has relied on ION to represent Petitioner’s substantive interests
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`in the ION litigation and appeal. (Ex. 2032 at 1, n1. (representing that
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`“reversal or remand on substantive patent grounds [in ION] would curtail
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`or extinguish Western’s claims against ION, and by extension, Geo [i.e.,
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`Petitioner PGS].”))
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`Additionally, as discussed above, ION and Petitioner having been
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`cooperating and coordinating regarding the validity of WesternGeco’s patents
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`across multiple forums for years, evidencing their respective control over, and use
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`of each other as a proxy regarding validity challenges. Petitioner has gone so far
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`as to invoke res judicata based on the ION litigation, reinforcing its belief that its
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`interests regarding, inter alia, the validity of the ’607 patent were already full
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`represented and litigated by ION from 2009-12. (Ex. 2032.) ION is a privy with
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`regard to the validity of the ’607 patent and, because ION was served with an
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`infringement complaint in 2009, the Petition is time barred under § 315.
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`IV. Claim Construction
`If the merits are addressed, a claim “shall be given its broadest reasonable
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`construction in light of the specification of the patent in which it appears.” 37
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`C.F.R. § 42.100(b) (emphasis added). Thus, the focus in claim construction for an
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`IPR, just as it is for every other proceeding requiring claim construction, is on the
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`specification of the patent at issue. The “broadest reasonable interpretation”
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`standard must still “be consistent with the specification.” In re Yamamoto, 740
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`F.2d 1569, 1571 (Fed. Cir. 1984).
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`Streamer Positioning Device
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`A.
`Consistent with the statute and legislative history of the Leahy-Smith
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`America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011) (“AIA”), the Board
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`interprets claims using the “broadest reasonable construction in light of the
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`specification of the patent in which [they] appear[].” 37 C.F.R. § 42.100(b); see
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`also Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14,
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`2012). There is a “heavy presumption” that a claim term carries its ordinary and
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`customary meaning. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366
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`(Fed. Cir. 2002). However, a “claim term will not receive its ordinary meaning if
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`the patentee acted as his own lexicographer and clearly set forth a definition of the
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`disputed claim term in either the specification or prosecution history.” Id.
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`The broadest reasonable construction of “streamer positioning device” is “a
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`device that controls at least the lateral position of a streamer as it is towed.” This
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`construction comports with the ordinary meaning of the term—a “streamer
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`positioning device” is a device to control posi