Trials@uspto.gov
`571-272-7822
`
`Paper 72
`Entered: July 11, 2016
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`PUBLIC - REDACTED
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`PETROLEUM GEO-SERVICES INC.,
`Petitioner,
`
`v.
`
`WESTERNGECO LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01478
`Patent 7,293,520 B2
`____________
`
`Before BRYAN F. MOORE, SCOTT A. DANIELS, and
`BEVERLY M. BUNTING, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`571-272-7822
`
`Paper 72
`Entered: July 11, 2016
`
`PUBLIC - REDACTED
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`PETROLEUM GEO-SERVICES INC.,
`Petitioner,
`
`v.
`
`WESTERNGECO LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01478
`Patent 7,293,520 B2
`____________
`
`Before BRYAN F. MOORE, SCOTT A. DANIELS, and
`BEVERLY M. BUNTING, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
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`IPR2014-01478
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`INTRODUCTION
`I.
`
`A. Background
`Petroleum Geo-Services (“Petitioner,” or “PGS”) filed a Petition to
`institute an inter partes review of claims 3, 5, 13–17, 20, 22, and 30–34 of
`U.S. Patent No. 7,293,520 B2 (“the ’520 patent”). Paper 1 (“Pet.”).
`WesternGeco LLC (“Patent Owner”) timely filed a Preliminary Response.
`Paper 12 (“Prelim. Resp.”). We instituted trial in Petroleum Geo-Services,
`Inc., v. WesternGeco LLC, Case IPR2014-01478, for claims 3, 5, 13–17, 20,
`22, and 30–34 of the ’520 patent on certain grounds of unpatentability
`alleged in the Petition. Paper 18 (“Decision to Institute” or “Dec. on Inst.”).
`Patent Owner, in due course, filed a Response. Paper 40 (“PO Resp.”).
`Petitioner subsequently filed a Reply. Paper 47 (“Pet. Reply”).1
`An oral hearing was held on November 10, 2015. A transcript of the
`hearing is included in the record. Paper 64 (“Tr.”).
`The Board has jurisdiction under 35 U.S.C. § 6(c). This Final Written
`Decision is entered pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`For the reasons that follow, we determine that Petitioner has proven, by a
`preponderance of the evidence, that claims 3, 5, 13–17, 20, 22, and 30–34
`of the ’520 patent are unpatentable.
`B. Additional Proceedings
`Lawsuits involving the ’520 patent presently asserted against
`Petitioner include WesternGeco LLC v. Petroleum Geo-Services, Inc., 4:13-
`cv-03037 (the “PGS lawsuit”) in the Southern District of Texas and
`WesternGeco LLC v. ION Geophysical Corp., 4:09-cv- 01827 (the “ION
`
`1 We refer here to the paper numbers of the redacted versions of Patent
`Owner’s Response and Petitioner’s Reply.
`2
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`lawsuit”) also in the Southern District of Texas, and WesternGeco LLC v.
`ION Geophysical Corp., 13-1527 (Fed. Cir.). Pet. 2.
`The ’520 patent was also challenged in Petroleum Geo-Services Inc.,
`v. WesternGeco LLC (IPR2014-00689) (PTAB Aug. 5, 2014) (the “first PGS
`IPR”); and ION Geophysical Corp. v. WesternGeco LLC, (IPR2015-00565)
`(PTAB Jan. 14, 2015).2
`C. The ’520 Patent
`The ’520 patent (Ex. 1001), titled “CONTROL SYSTEM FOR
`POSITIONING OF A MARINE SEISMIC STREAMERS,” generally relates
`to a system for improving marine seismic survey techniques by more
`effectively controlling the movement and positioning of marine seismic
`streamers towed in an array behind a boat. Ex. 1001, col. 1, ll. 24–36. As
`illustrated in Figure 1 of the ’520 patent, reproduced below, labeled “Prior
`Art,” a seismic source, for example, air gun 14, is towed by boat 10 producing
`acoustic signals, which are reflected off the earth below. Id. at col. 1, ll. 3641.
`The reflected signals are received by hydrophones (no reference number)
`attached to streamers 12, and the signals “digitized and processed to build up
`a representation of the subsurface geology.” Id.
`
`
`2 IPR2015-00565 was joined with IPR2014-00689 and a Final Written
`Decision in that proceeding was mailed by the Board on December 15, 2015.
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`Figure 1, reproduced above, depicts an array of seismic streamers 12
`towed behind boat 10. The ’520 patent explains that in order to obtain
`accurate survey data, it is necessary to control the positioning of the
`streamers, both vertically in the water column, as well as horizontally
`against ocean currents and forces, which can cause the normally linear
`streamers to bend and undulate and, in some cases, become entangled with
`one another. Id. at col. 1, l. 42–col. 2, l. 25.
`As depicted by Figure 1, each streamer 12 is maintained in a generally
`linear arrangement behind the boat by deflector 16 which horizontally
`positions the end of each streamer nearest the vessel. Id. at col. 1, ll. 43–45.
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`Drag buoy 20 at the end of each streamer farthest from the vessel creates
`tension along the streamer to maintain the linear arrangement.
`Additionally, to control the position and linear shape of the streamer,
`a plurality of streamer positioning devices, called “birds” 18, are attached
`along the length of each streamer.3 The birds are horizontally and vertically
`steerable and control the shape and position of the streamer in both vertical
`(depth) and horizontal directions. Id. at col. 3, ll. 53–61. The bird’s
`function is usually to maintain the streamers in their linear and parallel
`arrangement, because, when the streamers are horizontally out of position,
`the efficiency of the seismic data collection is compromised. Id. at col. 2, ll.
`14–17. The most important task of the birds, however, is to keep the
`streamers from tangling. Id. at col. 4, ll. 4–5.
`The invention described in the ‘520 patent relies on global control
`system 22 located on, or near the vessel, and local control system 36 on or
`near each bird, to control the birds on each streamer and maintain the
`streamers in their particular linear and parallel arrangement. Id. at col. 3, ll.
`62–66, col. 10, ll. 17–20. The global control system is provided with a
`model (desired) position representation of each streamer in the towed
`streamer array, and also receives (actual) position information from each of
`the birds. Id. at col. 4, ll. 21–23. The global control system uses the desired
`and actual position of the birds to “regularly calculate updated desired
`vertical and horizontal forces the birds should impart on the seismic
`streamers 12 to move them from their actual positions to their desired
`positions.” Id. at col. 4, ll. 37–40. The local control system implements the
`information from global control system by “adjusting the wing splay angle
`to rotate the bird to the proper position.” Id. at col. 10, ll. 24–25.
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`The Specification explains that the control system, as a whole, has
`two primary modes, a feather angle mode, and a turn control mode. Id. at
`col. 10, ll. 27– 29. The feather angle mode is used to maintain the linear
`form of the streamer at an angle offset from the direction of towing, usually
`to account for ocean crosscurrents affecting the streamers. Id. at col. 10, ll.
`29–37. The ’520 patent explains “[o]nly when the crosscurrent velocity is
`very small will the feather angle be set to zero and the desired streamer
`positions be in precise alignment with the towing direction.” Id. at col. 10,
`ll. 34–36.
`The turn control mode is used when the vessel is turning during a
`survey operation. Id. at col. 10, ll. 38–40. In a first part of the turn, birds 18
`are instructed to “throw out” the streamer by generating a force in the
`opposite direction from the turn. Id. at col. 10, ll. 40–44. In a second part of
`the turn, the birds are directed back to the position defined by the feather
`angle mode. Id. The control system determines the first and second part of
`the turn according to data provided by the vessel navigation system. Id. at
`col. 10, ll. 50–53.
`During inclement weather conditions the control system can also
`operate in streamer separation mode, important for keeping the streamers
`from tangling. Id. at col. 10, ll. 54–57. In this mode, the birds are directed
`to maintain the streamers a distance apart from one another, where
`[t]he streamers 12 will typically be separated in depth and the
`outermost streamers will be positioned as far away from each
`other as possible. The inner streamers will then be regularly
`spaced between these outermost streamers, i.e. each bird 18 will
`receive desired horizontal forces 42 or desired horizontalposition
`information that will direct the bird 18 to the midpoint position
`between its adjacent streamers.
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`Id. at col. 10, ll. 58–65. These different modes allow the vessel to operate
`more efficiently, turn faster and lower the incidents of tangling during
`survey operations leading to a reduction in time and equipment costs of
`marine surveying. Id. at col. 2, ll. 23–25, col. 10, ll. 44–46.
`D. Illustrative Claims
`Claims 3, 5, and 13–17 are dependent, directly or indirectly, upon
`independent method claim 1, and claims 20, 22, and 30–34 are dependent,
`either directly or indirectly, upon independent apparatus claim 18. Claims 1
`and 18 illustrate the basis of the claimed subject matter upon which the
`dependent claims rely and are reproduced below:
`
`
`1. A method comprising:
`(a) towing an array of streamers each having a plurality of
`streamer positioning devices there along contributing to steering
`the streamers;
`(b) controlling the streamer positioning devices with a control
`system configured to operate in one or more control modes
`selected from a feather angle mode, a turn control mode, and a
`streamer separation mode.
`Ex. 1001, col. 11, ll. 10–18.
`
`
`18. An apparatus comprising:
`(a) an array of streamers each having a plurality of streamer
`positioning devices there along;
`(b) a control system configured to use a control mode selected
`from a feather angle mode, a turn control mode, a streamer
`separation mode, and two or more of these modes.
`
`
`Ex. 1001, col. 12, ll. 4–10
`
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`E. The Alleged Grounds of Unpatentability
`
`Petitioner contends that the challenged claims are unpatentable on the
`
`following specific grounds.3
`
`Workman“
`
`§ 103
`
`3, 5 20 and 22
`
`‘H4’ 3°’ M“ 3‘
`‘H4’ 3°’ and“
`15-17, and 32-34
`
`
`
`§
`
`§ ‘°3
`§ 103
`
`Workman and
`Dolengowski5
`
`II.
`
`CLAIM CONSTRUCTION
`
`A. Legal Standard
`
`In an inter partes review, claim terms in an unexpired patent are
`
`interpreted according to their broadest reasonable construction in light of the
`
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b); see
`
`also In re Cuozzo Speed Techs., LLC., 793 F.3d 1268, 1278-82 (Fed. Cir.
`
`2015) (“Congress implicitly approved the broadest reasonable interpretation
`
`standard in enacting the
`
`and “the standard was properly adopted by
`
`PTO regulation”), cert. granted sub nom. Cuozzo Speed Techs., LLC v. Lee,
`
`136 S. Ct. 980 (mem.) (2016). Claim terms are given their ordinary and
`
`customary meaning as would be understood by a person of ordinary skill in
`
`the art at the time of the invention and in the context of the entire patent
`
`3 Petitioner supports its challenge with Declarations of Dr. Brian J. Evans,
`Ph.D. (Ex. 1002) (“Evans Decl.”) and Dr. Jack H. Cole, Ph.D. (Ex. 1003)
`(“Cole Decl.”)_ See infra.
`4 Ex. 1004, U.S. Patent No. 5,790,472 (Aug. 4, 1998).
`5 Ex. 1008, U.S. Patent No. 4,890,568 (Jan. 2, 1990).
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`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007). If the specification “reveal[s] a special definition given to a claim
`term by the patentee that differs from the meaning it would otherwise
`possess[,] . . . the inventor’s lexicography governs.” Phillips v. AWH Corp.,
`415 F.3d 1303, 1316 (Fed. Cir. 2005) (en banc) (citing CCS Fitness, Inc. v.
`Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)).
`If an inventor acts as his or her own lexicographer, the definition must
`be set forth in the specification with reasonable clarity, deliberateness, and
`precision. Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243,
`1249 (Fed. Cir. 1998). If a feature is not necessary to give meaning to what
`the inventor means by a claim term, it would be “extraneous” and should not
`be read into the claim. Renishaw PLC, 158 F.3d at 1249; E.I. du Pont de
`Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1433 (Fed. Cir.
`1988). Only terms which are in controversy need to be construed, and then
`only to the extent necessary to resolve the controversy. Vivid Techs., Inc. v.
`Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`We apply these general rules in construing the claims of the ’520
`patent.
`In our Decision to Institute we determined that an “array of streamers”
`is “more than one streamer.” Dec. on Inst. 11. We determined a “streamer
`positioning device” is “a device that positions a streamer as it is towed.” Id.
`We also determined that “feather angle mode,” means “a control mode that
`attempts to keep each streamer in a straight line offset from the towing
`direction by a certain feather angle.” Id. at 13. We interpreted “streamer
`separation mode” as “a mode to control separation, or spacing, between
`streamers.” Id. at 14. In addition, we determined for apparatus claim 18,
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`that the limitations recited in paragraph b) constituted a Markush group, and
`therefore “the prior art discloses the limitation if one alternative, i.e. a
`feather angle, a turn control mode, or a streamer mode, is in the prior art.”
`Id. (citing Fresenius USA, Inc. v. Baxter Int’l, Inc., 582 F.3d 1288, 1298
`(Fed. Cir. 2009)).
`Based on the full record developed during trial, we adopt those
`constructions not discussed below for purposes of this Decision. Because
`Patent Owner disagrees with our interpretations of “feather angle mode” and
`“streamer separation mode” as recited in both independent claims 1 and 18,
`we provide below additional analysis and the correct claim construction for
`both these claim limitations. See PO Resp. 8–11. Additionally, we construe
`the term “control modes.” See Id. 6–8, Pet. Reply 1–2.
`B. Control Modes
`Patent Owner contends that under the broadest reasonable
`interpretation “control modes is used in the specification to refer to
`automated configurations that attempt to achieve specific goals, i.e., a “goal
`oriented automatic configuration.” PO Resp. 7–8 (emphasis added).
`Petitioner argues that a control mode “is ‘simply a particular way of
`operating a device.’” Pet. Reply, 2 (citing Ex. 1003 ¶¶ 4–17, 32–41, 64).
`Patent Owner argues specifically that the ’520 patent “confirm[s] the
`need for a control system with automation,” and points to the Specification
`at column 10, lines 27–53 which we reproduce, in part, below:
`The inventive control system will primarily operate in two
`different control modes: a feather angle control mode and a turn
`control mode. In the feather angle control mode, the global
`control system 22 attempts to keep each streamer in a straight
`line offset from the towing direction by a certain feather angle.
`The feather angle could be input either manually, through use of
`
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`a current meter, or through use of an estimated value based on
`the average horizontal bird forces.
`Ex. 1001, 10:27–34. We note that neither the word “automated” nor
`“automatic” appears anywhere in the cited portion of the Specification. In
`the context of both the claims and the Specification, the term “control
`modes” is used only to refer, in the plural sense, to the specifically described
`“feather angle control mode”, turn control mode,” and “streamer separation
`control mode.” We are not apprised by Patent Owner of any specific
`definition of “control modes” indicating that the term is somehow limited to
`“automated” operation. Indeed, the specification section noted above,
`clearly indicates that manual, not automated, operation of certain aspects of
`the feather angle mode is contemplated, “[t]he feather angle could be input
`either manually, through use of a current meter, or through use of an
`estimated value based on the average horizontal bird forces.” Ex. 1001,
`10:32–34. Moreover, dependent claims 3 and 20 both specifically recite the
`further limitation of “inputting the feather angle manually.” It is not clear
`from any intrinsic evidence provided by Patent Owner that “control modes”
`as recited in the independent claims is limited to automatic, or automated,
`operation.
`We also determine that the word “automatic” introduces more
`ambiguity into the claim interpretation because it is not clear from the
`specification what “automatically” means, or that manual input or operations
`associated with the systems steering operations are excluded. See Ex. 1001,
`10:32–33 (“The feather angle could be input [] manually.”). We, therefore,
`decline to adopt Patent Owner’s purported construction of this term.
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`A common computer term, Microsoft’s PC Dictionary defines the
`word as “mode n. The operational state of a computer or a program.”
`MICROSOFT® PCDICTIONARY 344 (5th Ed. 2002). Under this
`definition, a “mode” controls the state, i.e., operation, or even lack of
`operation, of a computer or computer program as is most consistent with the
`written description and context of the ’520 patent. Accordingly, we
`determine that “control modes” means “operational states.”
`C. Feather Angle Mode
`We determined in our Institution Decision that “feather angle mode”
`is “a control mode that attempts to keep each streamer in a straight line
`offset from the towing direction by a certain feather angle.” Dec. on Inst. 13.
`Patent Owner’s disagreement with our claim construction is based on their
`insistence that a feather angle must be specifically “set.” See PO Resp. .
`This position does not persuade us to change our claim construction because
`dependent claims 3 and 20 specifically recite “inputting the feather angle
`manually.” To the extent the feather angle is “input[],” as called for with
`respect to claims 3 and 20, and “set[]” to zero in the case of claims 5 and 22,
`these dependent claims add limitations arguably commensurate with Patent
`Owner’s arguments, but do not explain why we should specifically
`incorporate such limitations from the dependent claims into a claim
`construction of “feather angle mode” as recited in the underlying
`independent claims 1 and 18.
`Reading the claims and the term, “feather angle mode” in light of the
`specification, we note that our construction parallels the initial description of
`“feather angle control mode” as described in the ’520 patent: “[i]n the
`feather angle control mode, the global control system 22 attempts to keep
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`each streamer in a straight line offset from the towing direction by a certain
`feather angle.” Ex. 1001, 10:29–32. What follows, the description of a
`“manually” input feather angle value, an “estimated value,” and the angle
`being “set to zero” are different embodiments explaining how the feather
`angle is received and determined by the global control system. Although
`one embodiment states that the angle is “set” we are not persuaded to read
`such a term into the claim construction. We must take care when reading a
`patent specification to interpret and understand the claims and requisite
`claim language in light of the disclosure, while not inappropriately importing
`variations and specific embodiments into a claim interpretation. See
`Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir.
`2004) (“Though understanding the claim language may be aided by the
`explanations contained in the written description, it is important not to
`import into a claim limitations that are not a part of the claim.”).
`Further, Patent Owner argues that the Specification describes the
`“feather angle control mode” as part of the “inventive control system,”
`essentially contending that these embodiments are somehow limiting. PO
`Resp. 8–9. The ’520 patent describes that “[t]he inventive control system
`will primarily operate in two different control modes: a feather angle control
`mode and a turn control mode.” Ex. 1001, 10:27–29. Read in context, the
`word “primarily” is not, however, expressly or inherently limiting. We find
`no description or evidence in the Specification, nor does Patent Owner point
`us to any language or evidence indicative of any intent, express or inherent,
`to limit the claimed invention to the disclosed embodiments, preferred,
`primary, or otherwise. See Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d
`898, 906 (Fed. Cir. 2004) (“Even when the specification describes only a
`
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`single embodiment, the claims of the patent will not be read restrictively
`unless the patentee has demonstrated a clear intention to limit the claim
`scope using ‘words or expressions of manifest exclusion or restriction.’”)
`We do agree with Patent Owner’s position that the feather angle mode
`does not encompass “the random alignment of streamers due to weather or
`ocean conditions.” PO Resp. 9. Accordingly, we clarify our claim
`construction so that it is understood that the feather angle mode includes
`global control system 22 using a certain feather angle value to control the
`birds and streamers. The “feather angle mode” is properly, “a control mode
`that attempts to keep each streamer in a straight line offset from the towing
`direction using a certain feather angle.”
`D. Streamer Separation Mode
`Patent Owner argues that our preliminary construction determining
`that “streamer separation mode” is “a mode to control separation, or spacing
`between streamers” is incomplete because the construction is “ambiguous as
`to ‘control separation.’” PO Resp. 9–10. Patent Owner argues specifically
`that “control separation” means that the spacing is “set and maintained.” Id.
`at 10.
`As we wrote in our original construction, we are not apprised of any
`evidence in the specification or claims that any specific distance between the
`streamers in the separation mode is “set and maintain[ed]” as Patent Owner
`urges. Dec. on Inst. 14. The phrase “set and maintain” may be an
`explanation of how a system could “control separation” but this phrase is not
`found anywhere in the specification or claims. Indeed, the ’520 patent
`explains various ways that separation or spacing can be controlled between
`streamers, [i]n the preferred embodiment of the present invention, the global
`
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`control system 22 monitors the actual positions of each of the birds 18 and is
`programmed with the desired positions of or the desired minimum
`separations between the seismic streamers 12.” Ex. 1001 at 4:21–25
`(emphasis added).
`Patent Owner argues that the ’520 Specification describes “setting and
`maintaining” the separation between streamers where “it teaches that in the
`streamer separation mode, the positioning devices are directed to a specific
`position/value, e.g., “to the midpoint position between its adjacent
`streamers.” PO Resp. 10 (citing Ex. 1001, 10:53–65.) (emphasis added)
`This argument is essentially that one could replace the verb phrase “directed
`to” with “set and maintained at.” The Specification states that:
`each bird 18 will receive desired horizontal forces 42 or desired
`horizontal position information that will direct the bird 18 to the
`midpoint position between its adjacent streamers.
`Ex. 1001, 10:62–65. It may be that an alternative to “direct[ing]” the bird is
`to “set and maintain” a desired spacing, but we are not persuaded that the
`Specification requires such a limitation or even states such language
`contextually or otherwise in describing any embodiments of the invention.
`Patent Owner has not provided persuasive evidence adequate to
`explain why the proper claim construction requires that “control separation”
`be further defined more precisely as “to set and maintain” the spacing. We
`determine based on the specification, claim language, and evidence from the
`complete record before us, that our initial claim construction is correct, and
`that under the broadest reasonable interpretation, “streamer separation
`mode,” means “a mode to control separation, or spacing, between
`streamers.”
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`E. Maximize Distance Between Adjacent Streamers
`Petitioner asserts that this phrase “requires that the outermost
`streamers are horizontally separated as far apart as possible and that the
`inner streamers are equally spaced between those streamers.” Pet. Reply. 4.
`Patent Owner argues that the phrase is best understood from the
`Specification, which describes, “‘maximizing the horizontal spacing
`between the outermost streamers and regularly spacing the inner streamers
`between the outermost streamers.’” PO Resp. 25. The only substantive
`difference between the parties’ proposed constructions is essentially the term
`“equally” and “regularly.” We are not persuaded that this dispute over these
`words has any substantive relationship to determining anticipation or
`obviousness in this proceeding. Moreover, the parties’ dispute does not
`explain why the phrase “maximize distance between adjacent streamers” in
`claims 14 and 31 needs to be interpreted at all. We determine that this claim
`language is sufficiently clear on its face and in context with “streamer
`separation mode,” and can be reasonably understood according to its plain
`and ordinary meaning.
`
`III. ANALYSIS
`A. Claims 13, 14, 30, and 31 – Anticipation by Workman
`To prevail on its patentability challenge, Petitioner must establish
`facts supporting its challenge by a preponderance of the evidence. 35 U.S.C.
`§ 316(e); 37 C.F.R. § 42.1(d). Petitioner asserts that claims 13, 14, 30, and
`31 are anticipated by Workman under 35 U.S.C. § 102. Pet. 37–42, Pet.
`Reply 8–13. Patent Owner disagrees, and focuses its arguments on
`distinguishing the claimed control modes from Workman, disputing that
`Workman teaches “a control system configured to operate in control
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`modes,” and specifically contesting Petitioner’s assertion that Workman
`discloses a “streamer separation mode.” PO Resp. 18.
`“A claim is anticipated only if each and every element as set forth in
`the claim is found, either expressly or inherently described, in a single prior
`art reference.” Verdegaal Bros. Inc., v. Union Oil Co., 814 F.2d 628, 631
`(Fed. Cir. 1987). “The identical invention must be shown in as complete
`detail as is contained in the . . . claim.” Richardson v. Suzuki Motor Co., 868
`F.2d 1226, 1236 (Fed. Cir. 1989). The elements must be arranged as
`required by the claim, but this is not an ipsissimis verbis test, i.e., identity of
`terminology is not required. In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990).
`[U]nless a reference discloses within the four corners of
`the document not only all of the limitations claimed but
`also all of the limitations arranged or combined in the
`same way as recited in the claim, it cannot be said to
`prove prior invention of the thing claimed and, thus,
`cannot anticipate under 35 U.S.C. § 102.
`
`
`Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008).
`1. Overview of Workman
`Workman discloses a method for controlling the position and shape of
`marine seismic streamer cables towed by a vessel. Ex. 1004, Abstract, Fig.
`1. More specifically, Workman teaches that real time signals, i.e. actual
`signals, from a towed streamer array are compared to corresponding input
`threshold parameters, to determine if the cables should be repositioned. Id.
`at 2:47–51. Workman discloses that the positions of seismic streamer cables
`are controlled by a plurality of birds and tail buoys “for adjusting the vertical
`and lateral positions of the streamer cables 13.” Id. at 3:16–19. Figure 2 of
`Workman is reproduced below.
`
`17
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`Figure 2 of Workman, above, illustrates diagrammatically, seismic
`data acquisition system 5 for positioning streamer cables 13 including
`streamer controller 16 receiving instructions from streamer control processor
`40. Id. at 4:16–18. Within data acquisition system 5, Workman also
`discloses network solution system 10 which uses a “Kalman filter solution
`on the signals it receives from the vessel positioning system 20 and location
`sensing devices 15.” Id. at 3:47–49. Workman states that once the real time
`position signals are obtained, “[t]he streamer control processor 40 evaluates
`these real time signals and the threshold parameters from the terminal 32 to
`determine when the streamer cables 13 need to be repositioned and to
`calculate the position correction required to keep the streamer cables 13
`within the threshold parameters.” Id. at 4:12–17. Threshold values can be,
`for example, minimum streamer cable separations, minimum allowable
`seismic coverage, maximum hydrophone noise levels, and minimum
`
`18
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`obstructive hazard separation. Id. at 3:66–4:3. Besides repositioning of the
`streamer cables according to the comparison of real time signals and
`threshold parameters, Workman discusses an “at risk” situation such as
`entanglement of the streamer cables, or obstructive hazards. Id. at 4:45–51.
`In an “at risk” situation, certain parameters may be disregarded, for example,
`the hydrophone noise level parameter. Id. at 4:41–46. In other situations,
`the streamer cables may be repositioned due specifically to the level of
`hydrophone noise. Id. at 5:15–19.
`2. Claims 1 and 186
`We address initially claims 1 and 18 as they are the base independent
`claims from which claims 13–14, and 30–31, respectively depend. Patent
`Owner argues that Workman does not anticipate claims 1, 13 and 14 or
`claims 18, 30, and 31 because Workman does not disclose any modes, and
`specifically does not disclose a “streamer separation mode” as recited in the
`dependent claims. PO Resp. 18–22.
`Patent Owner contends that “Workman only repositions streamers in
`limited ‘at risk’ situations when streamers get too close and violate a
`threshold, but otherwise allows them to float as far away as ocean currents
`would allow.” PO Resp. 19. Patent Owner bases their argument, in part, on
`their asserted claim construction, contending that Workman’s control system
`“is not setting and maintaining (or keeping) spacing between adjacent
`streamers of the streamer array.” Id.
`
`6 Independent claims 1 and 18 recite substantively the same limitations of
`“control mode” and “streamer separation mode.” Although claim 1 is a
`method claim, and claim 18 is an apparatus claim we understand no
`substantive difference between these claim terms and our analysis and
`construction applies equally to both.
`
`19
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`Workman clearly describes a streamer array composed of a plurality
`of streamers and states explicitly that the intended purpose of the “present
`invention is an improved system for controlling the position and shape of
`marine seismic streamer cables.” Ex. 1004, 2:45–47. The proper claim
`construction of “streamer separation mode” is “a mode to control separation,
`or spacing, between streamers.” Thus, recalling our claim construction,
`above, for “control modes”, the question essentially becomes: does
`Workman disclose a control system with an operational state that controls
`the separation, or spacing, between streamers? We find that it does.
`Workman explains that “threshold parameters are established for
`determining when the streamer cables should be repositioned,” and that such
`threshold parameters include “minimum allowable separations between
`streamer cables 13.” Id. at 3:63–66. Workman explains that if a threshold
`parameter, such as “minimum allowable separations” is violated, the
`streamer cable is repositioned with a “position correction required to keep
`the streamer cables 13 within the threshold parameters.” Id. at 4:12–17.
`This description is persuasive of an operational state in Workman that is
`controlling the separation and spacing between steamers.
`Patent
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