throbber
trials@uspto.gov
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`571-272-7822
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`IPR2014-01475, Paper No. 64
`IPR2014-01477, Paper No. 64
`IPR2014-01478, Paper No. 65
`December 31, 2015
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`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`PETROLEUM GEO-SERVICES INC.,
`Petitioner,
`v.
`WESTERNGECO LLC,
`Patent Owner.
`
`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
`Technology Center 3600
`Oral Hearing Held on Tuesday, November 10, 2015
`
`BEFORE: BRYAN F. MOORE; SCOTT A. DANIELS (via
`video link); and BEVERLY M. BUNTING (via video link); Administrative
`Patent Judges.
`
`The above-entitled matter came on for hearing on Tuesday,
`November 10, 2015, at 9:00 a.m., in Hearing Room A, taken at the U.S.
`Patent and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`

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`APPEARANCES:
`ON BEHALF OF THE PETITIONER:
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`JESSAMYN S. BERNIKER, ESQ.
`DAVID I. BERL, ESQ.
`DAVID M. KRINSKY, ESQ.
`THOMAS S. FLETCHER, ESQ.
`ALEC T. SWAFFORD, ESQ.
`CHRISTOPHER A. SUAREZ, ESQ.
`SANJIV P. LAUD, ESQ.
`Williams & Connolly LLP
`725 Twelfth Street, N.W.
`Washington, D.C. 20005
`202-434-5000
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`KEVIN HART, PGSI Representative
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`ON BEHALF OF THE PATENT OWNER:
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`MICHAEL L. KIKLIS, ESQ.
`CHRISTOPHER RICCIUTI, ESQ.
`KATHERINE CAPPAERT, ESQ.
`MITCH BLAKELY, ESQ. (In-House Counsel)
`Oblon, McClelland, Maier & Neustadt, LLP
`1940 Duke Street
`Alexandria, Virginia 22314
`703-413-3000
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`

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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
`
`P R O C E E D I N G S
`
`(9:00 a.m.)
`JUDGE B. MOORE: Please be seated. Good
`morning. I'm Judge Moore. With me today remotely are
`Judges Daniels and Bunting on the screen there. As I can see,
`the video is on top of the screen there, so when you address
`the remote judges, if you want to look them in the eye you can
`look at that video there.
`This is an oral hearing for cases IPR2014- 1475,
`1477, and 1478.
`A few initial remarks: First of all, we appreciate
`that the parties worked with the Board in the changing of the
`date of the hearing. We do appreciate that.
`As in all hearings, Petitioner bears the burden, so
`Petitioner will go first. Patent Owner will follow. And the
`Petitioner may reserve time if they wish after Patent Owner's
`presentation.
`I want to let the parties know that no objections
`should be made during the other side's presentation. You
`should hold objections until your portion of the presentation
`or until your rebuttal.
`As far as demonstratives, as we noted in the oral
`hearing order, this is being recorded as well as we have
`remote judges so it is very important that you indicate where
`you are in the record, either by demonstrative number or, if
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
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`you are using the ELMO, what page in the record you are at,
`and give time so that the remote judges can catch up to you
`because they're not going to be able to see what is on the
`screen during the presentation.
`And, okay, with that, Petitioner, could you let us
`know who is here?
`MS. BERNIKER: Certainly. Jessamyn Berniker
`from Williams & Connolly on behalf of Petroleum
`Geo-Services.
`With me from Williams & Connolly are David
`Berl, Tom Fletcher, David Krinsky, Alec Swafford, Chris
`Suarez and Sanjiv Laud. And from Petroleum Geo-Services
`we have Kevin Hart.
`JUDGE B. MOORE: All right. And that points
`out another thing that we should be aware of. If you don't use
`the microphone the remote judges can't hear you very well.
`MS. BERNIKER: Thank you, Your Honor.
`MR. KIKLIS: Michael Kiklis, Your Honor, from
`Oblon for WesternGeco, Patent Owner. With me is Chris
`Ricciuti, Kate Cappaert, and in- house counsel Mitch Blakely.
`JUDGE B. MOORE: All right. So unless the
`remote judges have something, we are ready to begin.
`Hearing nothing --
`MS. BERNIKER: Your Honor, would you like
`another copy of our demonstratives? Would that be helpful?
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
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`JUDGE B. MOORE: That would be great. Thank
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`you.
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`MS. BERNIKER: Certainly.
`JUDGE DANIELS: I just have one quick question
`before you begin. I was reviewing the record from our
`previous hearing on the related cases, but I just wanted to
`make sure, I think, Petitioner, you started off discussing the
`'607 patent and the claim construction there.
`And I, just for consistency or just to make sure I
`know where we are going, we are going to discuss, it looks
`like from your slides here, we are going to discuss the '967
`patent first?
`MS. BERNIKER: I had intended to do that
`because the '967 patent addresses the global control system
`issue, which is then repeated in the '607 patent, but I'm happy
`to take the patents in whatever order you prefer.
`JUDGE DANIELS: No, that's fine. I just wanted
`to, it is almost for my own consistency in reviewing the
`record in both cases and to let the other judges know that it is
`going to be a little different order. Thank you.
`MS. BERNIKER: Certainly, Your Honor. With
`the Board's permission, I would like to reserve about 20
`minutes for rebuttal.
`JUDGE B. MOORE: Sure.
`MS. BERNIKER: The first set of --
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`

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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
`
`JUDGE B. MOORE: Just a moment. Just before
`you get started let me double-check one thing.
`I think I forgot to say on the record that both sides
`have a total of 60 minutes. Go ahead.
`MS. BERNIKER: The first set of IPRs that we
`handled earlier depended principally with the independent
`claims of these patents.
`This set of IPRs relate to the dependent claims,
`but the dependent claims add limitations that are so trivial
`that WesternGeco does not even try to argue that most of them
`make any difference to this proceeding. WesternGeco and its
`expert, Dr. Triantafyllou, still do not dispute invalidity under
`the PGS and Board constructions.
`Instead, WesternGeco continues to try to do what
`it did in the first set of IPRs, which is to try to rewrite the
`claims. But WesternGeco's case has gotten even worse.
`At his deposition, their expert, Dr. Triantafyllou,
`admitted what WesternGeco has been refusing to admit for
`months, which is that the PGS and Board claim constructions
`which are broader are also not unreasonable, and if they are
`not unreasonable, they must be adopted under the BRI
`standard. And Dr. Triantafyllou also sided with PGS on
`several key issues regarding the teachings of the prior art.
`So we will begin with the '967 patent. Turning to
`slide 3, claim 1 of the '967 patent is depicted on slide 3.
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`

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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
`
`There are principally two disputes in connection with this
`patent. The first is the claim construction of global control
`system and the second is whether the '636 PCT discloses a
`global control system. These same two disputes were
`addressed in the first IPR so I will run through them relatively
`quickly.
`
`Turning to slide 4, the two competing
`constructions. On the left you have the PGS construction.
`And as you will remember, PGS adopted the construction that
`WesternGeco advocated for in the ION District Court case.
`WesternGeco offered that construction along with
`testimony from their expert on claim construction who
`testified that it was the appropriate construction, and the
`District Court adopted the construction. That construction is
`a control system that sends commands to other devices in a
`system.
`
`A few months ago for the first time they turned
`around and said that that construction was wrong. And now
`they have attempted to request that the Board adopt a different
`construction in these proceedings.
`The new construction on the right requires that the
`control system coordinate all the streamer positioning devices
`in the array. So, again, the difference here is whether the
`global control system must command all of the streamer
`positioning devices or only some of them.
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`

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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
`
`JUDGE DANIELS: Counsel, are we tied to the
`District Court's claim construction? I mean, we have two
`different, as I understand it, you know, the District Court is
`certainly not tied to the broadest reasonable interpretation.
`MS. BERNIKER: As a theoretical matter you are
`not tied to the District Court construction, but in this case we
`believe you are required to adopt it. And the reason is, first
`of all, under principles of judicial estoppel, WesternGeco is
`not permitted to change their claim construction now.
`And the reason for that is, under the authority that
`we cited in our papers, they are not permitted to advocate a
`broad claim construction when infringement is at issue and
`then turn around and advocate a narrow one to try to preserve
`those claims when validity is at issue.
`And the only thing they proved or tried to prove at
`trial with respect to infringement was under the broader claim
`construction. They never made any showing of infringement
`under the narrower claim construction.
`So that is one reason why in this particular case I
`think you are tied to the original WesternGeco construction
`that was adopted by the District Court.
`But the other reason that I think is important is
`that what you see from the original construction that
`WesternGeco adopted is broader, and WesternGeco is now not
`in a position to say that a construction that they offered and
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
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`advocated for is unreasonable. And the only way you can
`conclude that this is the wrong construction is if it is
`unreasonable, but it is not unreasonable.
`It was supported by Dr. Evans. It was supported
`by WesternGeco's original claim construction expert. And it,
`frankly, in this case is supported by Dr. Triantafyllou. If you
`look at slide 5 I asked him specifically is this claim
`construction unreasonable? And he said, no, it is not
`unreasonable, I would not call it unreasonable.
`Moreover, WesternGeco has not submitted
`testimony from a person of skill in the art supporting the
`conclusion that it is unreasonable.
`So for those reasons in this particular case I think
`you do need to adopt the PGS construction that was adopted
`by the District Court.
`Finally, this claim construction that WesternGeco
`proposes is inconsistent with the claim language. And if you
`look back at slide 3 that has the claim language, what you see
`is that specifically the global control system does not have to
`send commands to all of the streamer positioning devices. On
`the contrary, it says it only needs to transmit location
`information to at least one streamer positioning device.
`And then turning to slide 6, there is the fact that
`WesternGeco is trying to import a limitation from a preferred
`embodiment. And under the Linear Tech case and abundant
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
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`other authority from the Federal Circuit, it is improper to
`limit the claims to a preferred embodiment, especially in the
`BRI context.
`So for all those reasons we think it is clear that
`the PGS construction must be adopted.
`Turning now to the anticipation argument, on slide
`7, this is up here to remind you what is in the specification of
`the '967 patent. WesternGeco already says in the
`specification of the '967 patent --
`JUDGE DANIELS: Can we just go back to the
`claim construction before we get to anticipation?
`MS. BERNIKER: Absolutely.
`JUDGE DANIELS: Can we just take a look at, if
`you would just point out, what would be helpful is I would
`like `to look at some of the evidence right from the spec. And
`this is an important aspect of whether a global control system
`is a preferred embodiment or whether or not -- or whether it is
`bigger than that, I guess.
`Is it intended to be -- is the global coordination, is
`it the same as the remote coordination that is discussed in the
`background?
`MS. BERNIKER: You are talking about the
`callout regarding the '636 PCT I believe.
`JUDGE DANIELS: Yes.
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
`
`MS. BERNIKER: So why don't we take a look at
`that. That is reflected on -- give me a second, please.
`JUDGE DANIELS: Sure. You can even go to the
`patent if you want.
`MS. BERNIKER: Certainly. That is reflected in
`column 2 where -- and now I have it up on the screen on slide
`8 -- and that refers specifically to the '636 PCT. And what it
`says is that the '636 PCT discloses a control system wherein
`the desired horizontal positions, that's plural, and the actual
`horizontal positions, plural, are received from a remote
`control system, and those are then used to adjust the birds.
`And in terms of your question, is a remote control
`system exactly the same as a global control system, I don't
`think that the evidence supports the conclusion that they are
`coextensive. But what the evidence supports the conclusion
`of is that the remote control system that's described here is a
`global control system.
`And the reason we know that is, among other
`things, it refers to a single remote control system that is then
`used to send commands to a number of birds. And under the
`broader construction of global control system which we think
`is applicable here, that satisfies the limitation.
`With respect to the claim construction issue,
`however, I think what is evident is that the language that
`WesternGeco relies on to suggest that it must send commands
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
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`to all of the streamer positioning devices, which is reflected
`in column 4, line 21, and on slide 6, is expressly language
`from a preferred embodiment.
`And that language is inconsistent with what the
`claim says, which says you only need to send instructions to
`one or more.
`Did I answer Your Honor's question?
`JUDGE DANIELS: Thank you. Yes.
`MS. BERNIKER: So back to slide 7 for a moment.
`We discussed this at length in the first proceeding so I won't
`belabor it.
`Figure 1 shows that the global control system is in
`the prior art. WesternGeco already said that. And Dr.
`Triantafyllou acknowledged that at his deposition, having a
`global control system -- for me to claim, as he says, for me to
`claim that global control did not exist, it's not true.
`Turning now to slide 8, we've talked already about
`the admissions in the specification regarding the '636 PCT.
`On the left side of slide 8 we have the '636 PCT. As you are
`aware, the evidence is that a person of skill in the art would
`interpret the teachings of the '636 PCT, including figure 2,
`including the discussion of where the positions are coming
`from, that's found on page 5 of the reference, and including
`the reference to the control line that connects, throughout the
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
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`streamer that connects all of the birds and is the way that the
`instructions are sent to the birds.
`The testimony from Dr. Evans is undisputed that a
`person of skill in the art would understand that to describe a
`control system that is sending commands to multiple birds.
`And I say it is undisputed because, this is
`important, WesternGeco has had two opportunities to try to
`submit testimony from a person of skill in the art under the
`PGS construction to say that this is not what the '636 PCT
`discloses, and both times they have elected not to try to refute
`this through testimony of a person of skill in the art.
`The only testimony from Dr. Triantafyllou on any
`obviousness or anticipation issue in this case is under the
`WesternGeco claim construction.
`Turning briefly now to claim 4, slide 11,
`WesternGeco tries to make an issue regarding the question of
`where the calculation takes place in terms of calculating the
`difference between the actual vertical depth and the desired
`vertical depth, but Dr. Evans' testimony is unrefuted that the
`figure 2 of the '636 PCT makes clear that calculation must
`happen at the global control system.
`And that is corroborated by the testimony of Dr.
`Triantafyllou, who admitted the same thing at his deposition,
`and WesternGeco never even elicited a contrary opinion from
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
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`him in his expert report. So we submit that there is no issue
`with respect to claim 4.
`JUDGE DANIELS: Counsel, is it your position, as
`I understand it, Petitioner's position, that the -- I was just
`back at slide 8 but we can stay on slide 11 because it is the
`same figure, figure 2 -- the actual lateral position, the desired
`lateral position, that data or those signals are apparently
`coming from the remote system.
`Is that what you all are saying?
`MS. BERNIKER: Yes. They are coming from the
`remote/global control system, which in this case is one and
`the same, yes. And that is --
`JUDGE DANIELS: And then the -- sorry, go
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`ahead.
`
`MS. BERNIKER: No, please.
`JUDGE DANIELS: And then the remainder of
`these, and the remainder, for instance, as you have highlighted
`here, are occurring at the local control system level?
`MS. BERNIKER: The remainder of the limitations
`that you find here on claim 4 are absolutely found at the local
`system. That's consistent with the testimony of Dr. Evans.
`That's consistent with the figure. You see the
`input into the local control system's control circuit as two
`different things, the actual depth coming from the depth
`sensor and the desired depth coming from the global control
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
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`system, and then you understand as a person of ordinary skill
`would that the deviation between the two is calculated at the
`control circuit, which then outputs the commands to tell the
`wings where to go. And that's exactly what Dr. Triantafyllou
`admitted at his deposition that is reflected on the right.
`JUDGE DANIELS: Thank you.
`MS. BERNIKER: Certainly. Absent further
`questions on this patent I will move on to the '607 patent.
`Looking at slide 13 we have claim 15 of the '607 patent.
`In the first set of IPRs, PGS relied on the
`Workman reference as an anticipatory reference. Here
`because the dependent claims add additional limitations
`regarding the specific streamer positioning device, we rely on
`the combination of the '636 PCT and the Gikas paper.
`But even though there is a new combination at
`issue here, the fight remains the same. The principal dispute
`with respect to this patent is the claim construction of the
`term predicting positions.
`Turning now to slide 14, we have the Board's
`construction which is "estimate the actual locations." That
`construction is directly from the specification. It is
`word-for-word from the specification.
`And it is consistent with the claim language
`because, if you look back at slide 13 at the claim language,
`what you see is there is nothing in this claim that specifies
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
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`how you go about predicting, only that you must go about
`predicting.
`By contrast, WesternGeco continues to offer its
`much narrower claim construction requiring that there be a
`behavior predictive model that is used in this prediction. So
`they inconsistently with the claim language try to limit the
`way you go about predicting.
`Now, despite --
`JUDGE DANIELS: Counsel, doesn't the word
`"predict" connote some future occurrence? I think there is an
`argument in Patent Owner's position, I may not be stating it
`correctly, but that the normal understanding of predict is
`something in the future, not merely to estimate?
`MS. BERNIKER: So as I understand their
`argument, and I also apologize if I am misstating it, I think
`they are suggesting that predict has to have a time component
`which requires some amount of updating. But whether that is
`taking a past piece of information and making it current or
`taking a current piece of information and making it future, I
`think is not in dispute here.
`As I understand it, WesternGeco does not contend
`that you must have a future estimate but, rather, that you must
`simply update a piece of information. And that's consistent
`with what their expert, Dr. Triantafyllou, said at his
`deposition and that's consistent with the position that
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`

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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
`
`WesternGeco took at the District Court when they said a
`future location isn't required.
`But, in any event, I'm not sure that's a distinction
`that matters for this purpose because the Gikas reference
`specifically says that you are talking about a situation where
`you start with one data point and you update it as a matter of
`time.
`
`JUDGE DANIELS: Okay. Thank you.
`MS. BERNIKER: Now, again, WesternGeco's
`construction of using a behavior-predictive model, according
`to their expert, requires consideration of every force that
`could take place in real life on the streamer. And he listed
`several of them at his first deposition and he said that's only
`the first layer.
`Of course, these forces are not described in the
`specification and they certainly are not described in a way
`that would enable a person of skill to actually practice this
`invention. There are no algorithms or any other teaching
`about how to go about this.
`But, more importantly, as I said earlier, the claim
`simply doesn't require it.
`Now, turning to the Board's claim construction,
`the Board's claim construction is clearly broader than the
`limited prediction that WesternGeco tries to apply. And Dr.
`Triantafyllou at his deposition, on slide 15, confirmed once
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
`
`again that the Board's claim construction is not unreasonable.
`And WesternGeco never elicited any testimony that it is
`unreasonable. And, as a result, under BRI it must be adopted.
`On slide 16, I have included the diagram that Dr.
`Triantafyllou drew at his deposition to explain the
`relationship between ways of predicting. And what he said --
`this is his own diagram -- is that the behavior-based model
`that WesternGeco tries to limit its construction to, is a subset
`of dynamic models.
`But this is a significant problem for them because,
`as you see on slide 17, the '607 patent specifically says that
`dynamic models generally are preferred. It does not say the
`behavior-based dynamic models are preferred. It says
`dynamic models are preferred.
`But the WesternGeco construction on slide 18
`excludes those dynamic models that are not behavior based
`and, therefore, excludes preferred embodiments in the
`specification in direct violation of the GE Lighting case cited
`in our papers.
`In fact, under the authority, the BRI authority and
`basic claim construction authority, you are not even permitted
`to limit the claim to the dynamic model because that's merely
`a preferred embodiment and you are not permitted to limit the
`claim to the preferred embodiment. So WesternGeco's
`construction is doubly wrong.
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
`
`And this is important because, as we will see, the
`Gikas reference specifically discloses dynamic prediction. It
`falls within the circle I have colored in blue that is a dynamic
`model that is preferred in the specification of the patent.
`As if this weren't enough, WesternGeco has told
`the EPO exactly what PGS is saying in this case. Slide 19.
`JUDGE DANIELS: Excuse me, counsel. One
`thing that might be helpful, I think you touched on it before
`you got into Dr. Triantafyllou's diagram here, could you
`explain a little bit about the difference between a dynamic
`model and a behavior model?
`I understand the behavior model is a subset.
`Could you give us some sort of an explanation as to the
`difference, I guess? Let me just ask you that.
`MS. BERNIKER: I will do my best. As I
`understand it, a dynamic model is a model that takes into
`account the motion of the system or the fact that it is
`changing as a matter of time.
`And so that, we see that when the Gikas paper
`refers to a dynamic model, and what it says is you are taking
`the -- out of the old information or the current information
`and then you are updating it as a matter of time.
`And that is different, for example, from a
`behavior-predictive model which, as described by Dr.
`
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
`
`Triantafyllou, requires you to consider every force, every
`physical force that is acting on the system.
`So whereas you can perform a dynamic model that
`updates the position as a matter of time without necessarily
`saying let's look at all of the forces on the system, but more
`generally, for example, just considering velocity times speed,
`the WesternGeco construction requires you to consider all of
`these other forces that Dr. Triantafyllou explained at his
`deposition, including the drag forces, the tension forces, the
`distribution of mass, the centrifugal forces, the Coriolis
`forces. He went on and on about what they are.
`And so the dynamic model in this case would
`certainly be a model that doesn't require considering every
`single one of those forces, but, frankly, just is able to update
`the system as a matter of time.
`JUDGE DANIELS: So it seems like the major
`difference, as I understand it -- and of course we can hear
`from Patent Owner on this -- but your behavior-based model
`would use more specific data, more data points on specific
`issues?
`
`MS. BERNIKER: It would, as I understand it,
`involve a number of sub-models that model the various ways
`the streamers can behave as a matter of hydrodynamics. And
`the dynamic model doesn't necessarily require consideration
`
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
`
`of all of those. It doesn't require specific hydrodynamic
`forces to be considered.
`JUDGE BUNTING: So, counsel, I have a
`question. Even though the behavior-based model has all of
`these other factors, isn't it also based on time?
`MS. BERNIKER: I think the behavior-based
`model certainly would be based on time, and that's why it is a
`form of dynamic model but not the only form of dynamic
`model.
`
`So turning to slide 19 again, WesternGeco told the
`European Patent Office a year ago that, according to the
`specification of the patent, a dynamic model, whether
`behavior predictive or otherwise, is not essential. And they
`said the same thing to the European Patent Office two months
`ago.
`
`In Exhibit 1125 cited in our papers, the very thing
`the PGS has been arguing to this Board for months, and that
`WesternGeco has been refuting for months, two months ago
`they told the EPO once again that a behavior-predictive model
`is not essential.
`They should not be permitted to exclude all other
`configurations, all other reasonable dynamic models under
`this claim construction, which requires BRI, when at the same
`time they are telling the European Patent Office that the
`behavior-predictive model is non-essential.
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
`
`I'm going to skip ahead to the Gikas reference
`now, which is on slide 24. And the Gikas reference is the
`reference we cite in connection with the prediction limitation.
`The other limitations of the claim are principally undisputed
`and they are found in the '636 PCT. We will focus on this
`here.
`
`The Gikas paper in slide 24 was not before the
`Patent Examiner. And what it is, is a paper that talks about
`how to use Kalman filters in seismic streamer -- seismic
`surveys, I apologize, in the marine context.
`Now, I called up Section 3.1, but this is just one
`paragraph of a very lengthy paper that explains exactly how to
`use these Kalman filters, and he talks about a Kalman filter
`being the best known of the commonly-used recursive
`algorithms for the estimation of the parameters of time
`varying systems.
`Again, the Kalman filter does exactly what the
`prediction requires here. It is estimating parameters in a time
`varying system. And looking at the bottom of the callout,
`what you see is that it discloses using two models to do this.
`The first is a measurement model that tells you
`where the observation was at an earlier time, and the second is
`a dynamic model -- those words again -- that relates that
`parameter and updates it to a later time. And the Kalman
`filter that's described in Gikas has specific formulas about
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`Case No. IPR2014-01475 (Patent 7,162,967)
`Case No. IPR2014-01477 (Patent 7,080,607)
`Case No. IPR2014-01478 (Patent 7,293,520)
`
`how to go about doing this, and it states specifically that's for
`use in real time.
`Dr. Triantafyllou, turning to slide 25, admits that
`the Gikas model is, within what we have colored in here as the
`blue circle, a dynamic model. It is undisputed that Gikas is a
`dynamic model and it is undisputed that it is not teaching in
`favor of a behavior-predictive model. This is the crux of

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