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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`WESTERNGECO L.L.C.,
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`Petitioner,
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`v.
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`PGS GEOPHYSICAL AS,
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`Patent Owner.
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`____________
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`Case IPR2015-00311
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`U.S. Patent No. 6,906,981
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`____________
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`PETITIONER’S REPLY BRIEF
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`Pursuant to 37 CFR §§ 42.23 and 42.24(c)(1), WesternGeco L.L.C. (“WG”
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`or “Petitioner”) hereby submits the following Reply in support of its Petition for
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`Inter Partes Review (“IPR”).
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
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`____________
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`WESTERNGECO L.L.C.,
`
`Petitioner,
`
`v.
`
`PGS GEOPHYSICAL AS,
`
`Patent Owner.
`
`____________
`
`Case IPR2015-00311
`
`U.S. Patent No. 6,906,981
`
`____________
`
`
`PETITIONER’S REPLY BRIEF
`
`Pursuant to 37 CFR §§ 42.23 and 42.24(c)(1), WesternGeco L.L.C. (“WG”
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`
`
`or “Petitioner”) hereby submits the following Reply in support of its Petition for
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`Inter Partes Review (“IPR”).
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`I.
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`II.
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`Case IPR2015-00311
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`TABLE OF CONTENTS
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`INTRODUCTION ........................................................................................... 1
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`DE KOK ANTICIPATES CLAIMS 31, 32, and 36-38 OF THE ’981
`PATENT .......................................................................................................... 2
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`A. De Kok Teaches “Determining” First and Second Components of the
`Recorded Signals that Are “Coherent From . . . Trace to Trace” ......... 2
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`B.
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`C.
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`De Kok Teaches “Time Aligning” the Recorded Signals ..................... 3
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`De Kok Teaches the Use of CMP Gathers to Determine Shot to Shot
`Coherence .............................................................................................. 4
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`III. BEASLEY AND EDINGTON RENDER OBVIOUS CLAIMS 31-37 ......... 6
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`A.
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`B.
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`C.
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`D.
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`PGS Admits that Beasley and Edington Disclose All Elements of
`Claim 31 ................................................................................................ 6
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`POSA Would Have Been Motivated to Combine Beasley and
`Edington ................................................................................................ 7
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`1.
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`2.
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`3.
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`Beasley Can be Used With Time Delay Encoding ................... 11
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`Beasley and Edington’s Encoding and Decoding Methods Are
`Compatible ................................................................................ 13
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`Beasley and Edington Are Not Incompatible ........................... 15
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`Beasley and Edington Render Obvious Quasi-Random and Random
`Time Delays ........................................................................................ 17
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`Beasley and Edington Render Obvious the Use of CMP Gathers to
`Determine Shot to Shot Coherence ..................................................... 19
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`IV. PGS FAILS TO ESTABLISH A NEXUS SUPPORTING ITS ALLEGED
`SECONDARY CONSIDERATIONS OF NONOBVIOUSNESS ............... 20
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`ii
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`I.
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`INTRODUCTION
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`Case IPR2015-00311
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`By Patent Owner PGS Geophysical AS’s (“PGS’s”) own admission, U.S.
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`Patent No. 6,906,981 (“the ’981 patent” or “Vaage”), filed in 2002, does nothing
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`more than use “conventional marine seismic survey” equipment to exploit a natural
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`phenomenon that was recognized in marine seismic surveys by 1987 and used in
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`land seismic surveys by at least 1989. Although PGS masquerades this as
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`invention, it is not.
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`PGS alleges the “invention” of the ’981 patent was that if multiple marine
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`sources overlapped—but had a variable time delay between them, i.e., were
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`“asynchronous”—then their traces could be separated using conventional common-
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`midpoint (“CMP”) gathers. But, this was well known to those skilled in the art.
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`For example, De Kok teaches using CMP gathers to separate variably time-delayed
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`sources for marine seismic surveys. De Kok is therefore anticipatory.
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`Time delayed sources were also known in land seismic surveys, e.g.,
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`Edington, and a POSA had a strong motivation for combining that land-based
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`technique into a marine-based system that used CMP gathers, e.g., Beasley. That
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`variable time delays could work to separate sources in marine systems was not in
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`doubt: PGS’s own expert, Dr. Walt Lynn, acknowledges that this principle was
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`well known in a paper he authored over a decade before the ’981 patent’s earliest
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`priority date. (Ex. 1021.) Beasley itself also taught time delays between its
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`1
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`sources, and that those sources could be asynchronous. The ’981 patent’s trivial
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`Case IPR2015-00311
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`“improvement” of pulling these known pieces together to yield predictable results
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`is obvious.
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`The challenged claims of the ’981 patent are both anticipated by De Kok
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`(claims 31, 32, and 36-38) and rendered obvious by Beasley in view of Edington
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`(claims 31-37).
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`II.
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`DE KOK ANTICIPATES CLAIMS 31, 32, and 36-38 OF THE ’981
`PATENT
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`PGS’s Response sets forth three reasons that De Kok does not anticipate
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`claims 31, 32, and 36-38—all of which are easily dismissed. PGS’s arguments are
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`either based upon an unduly narrow reading of the challenged claims, a trivial
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`distinction that is nonetheless taught by De Kok, or both.
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`A. De Kok Teaches “Determining” First and Second Components of
`the Recorded Signals that Are “Coherent From . . . Trace to
`Trace”
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`The ’981 patent explains that determining trace to trace coherence
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`“separat[es] the components of the signals which are caused by [one source] from
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`the random noise.” (Ex. 1001 at 8:13-18.) As Dr. Lynn explained, random noise
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`is removed with CMPs. (Ex. 1022 at 57:7-12 (“Q. You suppress the random noise
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`by doing a CMP stack? A. Correct. Q. And that’s one of the main purposes of
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`doing a CMP stack? A. Yes.”); id. at 76:16-19 (“Q. So with the CMP gather
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`example, could you visually identify the trace-to-trace coherency? A. Yeah.”) De
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`2
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`Kok’s separation is achieved during processing “preferably in the common mid-
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`Case IPR2015-00311
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`point (CMP) domain,” which results in “coherent data,” thus anticipating the
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`challenged claims. (Ex. 1003 at 4:47-55; Ex. 2002 at 281:20-23.)
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`More generally, removing random noise such as that from another source or
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`a ship propeller is an inherent part of seismic surveying, has been done since the
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`1960s, and is necessarily done in De Kok. (Ex. 2002 at 202:22-25.) Particularly
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`where the goal is to “separat[e] individual source contributions into source
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`records” (as in De Kok), random noise must be removed during processing. (Ex.
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`1003 at 4:47-55.) Dr. Lynn likewise acknowledged that “[a]ny summation of
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`traces,” such as that done in De Kok, “is going to suppress the level of random
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`noise.” (Ex. 1022 at 133:8-11.) Thus, both experts agree that De Kok’s CMP
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`gathers necessarily remove random noise, i.e., “determin[e]” components of the
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`recorded signals that are “coherent from . . . trace to trace.”
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`B. De Kok Teaches “Time Aligning” the Recorded Signals
`De Kok’s encoding method uses a variety of positive and negative time
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`delays between the activation of the seismic sources and then uses “polarity
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`decoding to enhance and separate energy” from one seismic source shot series
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`3
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`from a second or third seismic source shot series.1 (Ex. 1003 at 6:41-65.) This
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`Case IPR2015-00311
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`process is the time aligning step of the challenged claims.
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`De Kok further discloses separating sources “in the common mid-point
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`domain” which, as known to POSA, necessarily includes normal move-out
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`correction (“NMO”) to time align seismic signals prior to summing them. (Ex.
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`1022 at 46:9-14.) During his deposition, Dr. Lynn explained that “any time you
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`would do a CMP stack,” a NMO correction would be done prior to generating the
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`CMP stack. (Ex. 1022 at 44:21-24; 45:5-8; 68:24-69:3 (“Q. And that gets back to
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`any time you would do a CMP stack, you would do an NMO time shift first? A.
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`Correct.”).) Thus, by disclosing separating sources in the CMP domain, De Kok
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`necessarily discloses “time aligning” the recorded signals as recited in claims 31,
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`32, and 36-38, either directly or through inherency.
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`C. De Kok Teaches the Use of CMP Gathers to Determine Shot to
`Shot Coherence
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`“Shot to shot coherence” refers to differentiating signals from two sources.
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`(Ex. 1001 at 8:18-25 (discussing “generat[ing] coherent traces from shot to shot” to
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`“represent seismic signals resulting only from source A” and that “noise from
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`1 As De Kok’s polarities are a direct function of the programmed time delays, De
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`Kok’s polarity decoding includes time aligning. (Ex. 2002 at 18:3-7; 187:19-
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`189:5.)
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`4
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`source B . . . will be substantially absent”).) Dr. Lynn confirmed that shot to shot
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`Case IPR2015-00311
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`coherence involves emphasizing signals from one source while suppressing those
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`from the second source. (Ex. 1022 at 70:18-71:6.)
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`De Kok expressly discloses this “separation of individual source
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`contributions.” (Ex. 1003 at 4:50-55.) Moreover, Dr. Lynn confirmed that this
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`separation is taught in De Kok. (Ex. 1022 at 136:22-137:2 (“Q. In theory. But
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`that’s what De Kok is at least teaching, is that if you do this method, you will be
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`able to isolate source one or isolate source two? A. Yes.”); id. at 131:25-132:6
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`(“Q. So Figure 5B shows that De Kok enhances source one and suppresses source
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`two? A. Correct. Q. And Figure 5C shows that De Kok enhances source two and
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`suppresses source one? A. Correct.”)
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`And, despite PGS’s protestation, De Kok uses the same CMP gathers as
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`Vaage in determining this coherency. (Compare Ex. 1022 at 75:2-4 (“Q. The
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`CMP gather in Vaage is what lets you determine the shot-to-shot coherency? A.
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`That’s how he approaches it, yes.”) with Ex. 1003 at 4:50-55 (teaching that the
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`“separation of individual source contributions” is preferably done “in the common
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`mid-point (CMP) domain”) (emphasis added) Nothing else is required to
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`anticipate the challenged claims.
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`5
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`III. BEASLEY AND EDINGTON RENDER OBVIOUS CLAIMS 31-37
`Beasley and Edington form a tight combination. Beasley discloses using
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`Case IPR2015-00311
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`multiple marine sources with a programmable delay between them and using CMP
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`gathers as part of separating the two sources. Edington discloses using variable
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`time delays to separate two land sources. These patents form a tight combination
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`because POSA looks to land-based seismic survey techniques for marine-based
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`applications and has done so over the history of this industry. (See e.g., Ex. 1002
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`at ¶ 29; Ex. 1009 at 161; Ex. 1010 at 477-78.) For PGS to argue otherwise,
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`effectively puts blinders on POSA. Even Dr. Lynn conceded that “these
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`techniques for suppressing an asynchronous second source” apply to both land and
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`marine and that the “natural phenomenon [] that if you have an asynchronous
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`second source, it will be suppressed in a CMP stack” would “apply both for land
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`and marine.” (Ex. 1022 at 94:5-14, 95:16-23.)
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`A.
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`PGS Admits that Beasley and Edington Disclose All Elements of
`Claim 31
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`This case is about motivation to combine only. PGS makes no argument
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`that the combination of Beasley and Edington does not teach the elements of claim
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`31. 2 Claim 31 simply contains the limitations recited in claim 1 along with aspects
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`of dependent claims 17 and 19. PGS has not argued that the combination of
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`Beasley and Edington fails to teach the elements of claims 1, 17, and 19.
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`2 The preamble of claim 31 is limiting and the Board should so find.
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`6
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`(IPR2015-00309, POR at 37-54.) This amounts to a tacit admission by PGS that
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`Case IPR2015-00311
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`the combination of Beasley and Edington teaches the elements of claim 31.
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`Moreover, Dr. Lynn admitted during his deposition that Beasley by itself
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`discloses all but one element of claim 1—“a time interval between firing the first
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`source and the second source varied between successive ones of the firing
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`sequences.” (Ex. 1022 at 162:6-167:25 (walking through elements of claim 1).)3
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`Dr. Lynn admitted, however, that Edington teaches this “missing” element. (Ex.
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`1022 at 143:20-25 (“Q. The time delay between the two sources varies from shot to
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`shot. A. Okay, I’m with you. Q. That’s something that Edington teaches? A.
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`Right.”) Thus, this case is merely about motivation, for which there is plenty, and
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`this Board need look no further to cancel the challenged claims.
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`B.
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`POSA Would Have Been Motivated to Combine Beasley and
`Edington
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`PGS argues that POSA would not have been motivated to take the variable
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`time-delay of Edington and attempt to use it with Beasley because the prior related
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`to land surveys and the latter to marine. (POR at 26-27.) In doing so, PGS ignores
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`the many well-recognized similarities between land and marine seismic acquisition
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`techniques—including the use of impulsive sources, source encoding, NMO, and
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`3 As discussed below, Beasley also teaches the “missing” asynchronicity in its
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`priority application that is incorporated by reference. (Ex. 1023 at p. 25, cl. 2.)
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`7
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`CMP gathers—and also ignores that many in the industry borrowed land
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`Case IPR2015-00311
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`technology for use in marine surveys and vice versa. (See e.g., Ex. 1002 at ¶¶ 29,
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`30, 34; Ex. 1009 at 161; Ex. 1010 at 477-78; Ex. 1021 at 1502 (“Although our data
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`examples are from the marine environment, the conclusions are also applicable to
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`problems of interference in land surveys.”); Ex. 1022 at 93:9-12; 94:23-95:7)
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`Notably, the marine patents at issue here, De Kok, Beasley, and even the ’981
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`patent, all cite to Edington (and other land references) as relevant prior art.
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`Multiple inventors in the relevant time frame considered Edington a close enough
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`technology to disclose it under the applicable duty of candor.4 Not only would
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`POSA involved in marine simultaneous surveys look to land references in the
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`abstract, the record shows three inventors who actually did.
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`Moreover, the marine prior art’s understanding of Edington is generalized to
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`any delay-separation and not limited to land contexts. (See, e.g., Ex. 1003 at 2:6-
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`12). Edington’s teaching is described in the prior art in almost identical language
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`as Dr. Lynn’s description of the ’981 patent:
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`“A method disclosed by
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`“Q. And in general, the Vaage patent
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`4 Even the marine Herkenhoff patent, on which PGS and Dr. Lynn rely, cites
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`Edington generally as “a method of time delay source coding.” (Ex. 2015 at 1:47-
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`50.)
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`8
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`U.S. Pat. No. 4,953,657 to
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`Case IPR2015-00311
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`uses a series of time delays between the
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`Edington discloses a suite of time
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`sources in firing sequences? A. In general,
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`delay differences between sources.
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`that’s a correct statement…Q. To enhance the
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`To enhance the signal from a
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`signal from a particular source, the Vaage
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`particular source, the
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`patent teaches that the corresponding signals
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`corresponding signals are aligned
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`are aligned and stacked like you show in that
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`and stacked. The contributions
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`figure on the left? A. Correct. Q. And if
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`from the other source(s) are not
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`you do that, the Vaage patent teaches that the
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`aligned and do not stack to full
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`contributions from the other source are not
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`strength.” (Ex. 1003 at 5:-101
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`aligned so they will not stack to full strength?
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`A. Correct.” (Ex. 1022 at 67:5-67:20)
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`The time delays in Edington are used for the same purpose as in the claimed
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`’981 invention, and POSA would have expected success importing Edington’s time
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`delays into the marine environment because it was known from a 1987 paper by
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`Dr. Lynn that the phenomenon of time-delay separation applied as equally in the
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`marine context as in the land context. (Ex. 1021; Ex. 1022 at 23:14-22, 60:6-10
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`(“Q. So when the two sources were asynchronous with each other, you would be
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`able to make the second source incoherent in the CMP gather? A. Correct.”); id.
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`at 62 (“Q. And what you discovered in 1987 was the phenomenon that using
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`9
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`regular equipment and using regular CMP techniques, you could suppress the
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`Case IPR2015-00311
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`second source if it was asynchronous to the first? A. That’s correct.”).) And
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`Beasley itself taught POSA that its system could be used with such asynchronous
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`sources—the priority 08/829,485 application that was explicitly incorporated by
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`reference into Beasley (Ex. 1004 at 1:5-14) discloses two timed intervals for two
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`sources and “time-shifting the second [source] to occur asynchronously relatively
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`to the . . . first.” (Ex. 1023 at p. 25, cl. 2.)5
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`The record is clear that POSA would have had a reasonable expectation of
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`success in using Edington’s asynchronous timings with Beasley’s time-delay
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`sources (and asynchronous timings) to exploit the same phenomenon taught by
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`Edington for land seismic, and observed by Dr. Lynn in 1987 for marine seismic,
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`5 In his deposition, Dr. Lynn confirmed that he based his opinion on the inability to
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`use Beasley with asynchronous sources. (Ex. 1022 at 172:9-17.) Not only is this
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`predicate wrong in light of Beasley’s explicit disclosure of asynchronous sources
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`discussed above, but Dr, Lynn also opined that it inherently anticipates the ’981
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`invention. (Id. at 114:22-116:4 (“So if the sources are dithered or
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`asynchronous . . . in a CMP domain, the energy—reflected energy coming back
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`from source A will be coherent and the energy being reflected back from source B
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`will be incoherent.”).)
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`10
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`to achieve the shared goal of Edington and Beasley of separating the two seismic
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`Case IPR2015-00311
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`sources using CMPs.
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`1. Beasley Can be Used With Time Delay Encoding
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`Beasley’s figure 7 discloses “decoders” 31 and 33 for separating the record
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`signal into two sources. (Ex. 1004, Fig. 7.) Beasley’s text also teaches that “any
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`desired type of coding” may be employed. (Ex. 1004 at 7:54-56.) The Edington
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`patent, titled “Time Delay Source Coding,” would seem to fit this bill. (Ex. 1006.)
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`More broadly, Beasley teaches it can be used with sources “that can be
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`discriminated from each other due to some identifying characteristic, parameter,
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`signature, or feature.” (Id. at 10:4-10.) Edington’s time-delay encoding fits
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`squarely within this framework and Edington’s “determinable time delay” (Ex.
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`1006 at 2:4-8) provides the very identifier sought by Beasley. POSA would
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`therefore understand that Beasley could be used with time delay encoding, as
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`taught by Edington. (Ex. 1002 at ¶ 241; Ex. 1004 at 7:55-56.)
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`PGS objected to the combination of Beasley and Edington by focusing on a
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`singular phrase–“any desired type of coding”–and arguing that it refers to source
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`signature encoding only. (POR at 33-35.) Although Dr. Lynn stated that this
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`sentence in Beasley excludes time delay encoding, he nevertheless admitted that
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`“time delay encoding” as disclosed in the ’981 patent is “a type of source signature
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`encoding for the marine environment” and that Edington’s time delay source
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`11
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`coding is “a type of source signature encoding.” (Ex. 1022 at 18:7-14; 185:2-3;
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`148:18-23.) Even if this phrase is construed as PGS suggests, which is incorrect,
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`the rest of Beasley’s teachings cannot be ignored.
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`Importantly, POSA would have looked to Edington’s time delay encoding as
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`a type of source signature encoding to use with Beasley because Beasley teaches
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`time-delayed source firing. Although PGS argues that Beasley teaches only
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`encoding with concurrent source firing (i.e., with no time delay,) that is
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`demonstrably false. (POR at 30-33.) Figure 7 of Beasley shows coding/decoding
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`with a time delay between the two sources. (Ex. 1004 at Fig. 7, 7:64-8:27
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`(“[S]ource SL is first activated at time T0 . . . source ST is activated at time t0 after
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`a time shift through delay line 29 . . . If the recorded reflected acoustic wavefields
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`were encoded, of course optional decoders 31 and 33 . . . would be inserted….”);
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`see also Ex. 1022 at 102:13-103:10 (discussing figures 7 and 8) ; id. at 180:13-21;
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`id. at 191:24-192:4 (“Q. In the timing diagram shown in Figure 8, it looks like the
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`two sources are going to overlap in the recordings. Is that fair? A. It looks like
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`it.”).) More generally, Beasley teaches coded sources that are fired
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`“simultaneously or nearly simultaneous,” just like the sources in Edington or in
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`the ’981 patent itself. (Ex. 1004 at 8:46-47.) And perhaps most importantly,
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`Beasley’s incorporated-by-reference priority document expressly teaches
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`asynchronous time-delayed source firing. (Ex. 1023 at p. 25, cl. 2.)
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`12
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`Case IPR2015-00311
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`PGS’s reliance on Beasley’s single use of the word “concurrently” does not
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`change anything. As an initial matter, PGS’s reference to “exactly concurrently” is
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`found nowhere within Beasley—it is from a 2007 reference that is irrelevant to this
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`proceeding. Additionally, PGS overlooks the fact that “concurrently” has a
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`specific meaning in the marine surveying context, instead basing its argument on
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`the colloquial meaning of “concurrently.” “Concurrently,” however, like
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`“simultaneous,” has a specific meaning in seismic surveying, and encompasses
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`timing that is “near concurrently” or “near simultaneous.” (Ex. 2002 at 218:8 –
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`219:2; 220:23-221:4.) Thus, POSA would have understood that Edington’s time
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`delay encoding could be used to activate Beasley’s multiple sources
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`“concurrently,” and that coding could be used with time-delayed sources as well.
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`See, e.g., Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (“[T]he
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`ordinary and customary meaning of a claim term is the meaning that the term
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`would have to a person of ordinary skill in the art.”) (emphasis added).
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`2. Beasley and Edington’s Encoding and Decoding Methods
`Are Compatible
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`PGS argues that WesternGeco somehow failed to consider whether
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`Edington’s encoding and decoding methods would be compatible with Beasley.
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`This is simply untrue. Rather, Dr. Ikelle opined that “the use of time delays is
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`independent of the environment of the survey” and POSA would be motivated to
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`13
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`combine Beasley and Edington because they “both address multishooting,
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`encoding, and decoding.” (Ex. 1002 at ¶¶ 241-43.)
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`Both Edington and Beasley time-align traces for their decoding. (Ex. 1006
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`at 5:60-64 (“The signals shown in FIG. 4 are then time shifted as shown in FIG. 5
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`so that the signals 38 are aligned…”); Ex. 1004 at 4:16-40 (“To separate the
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`sources’ data, the record is updated with one source’s geometry information (e.g.,
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`x, y location coordinates and time of day identifier) . . . optionally sorted to order
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`by known common mid-point (CMP) sorting methods . . . then re-done with the
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`attachment of the other source’s geometry.”); Ex. 1022 at 68:24-69:3; 56:7-17;
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`144:2-18.) PGS’s argument that Edington and Beasley are an encoding/decoding
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`mismatch is a red herring and conspicuously avoids the real question—whether it
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`would be within the skill level of POSA to use Edington’s random time variations
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`with Beasley’s seismic surveying system to achieve the result predicted by the
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`1987 Lynn paper. This answer is yes. (Ex. 1002 at ¶¶ 239-44.)
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`PGS’s arguments ignore the fact that Beasley itself discloses the use of time
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`delays (Ex. 1004 at 8:4-11; Figs. 7 (element 29), 8 (timing diagram))—and the
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`incorporated priority application explicitly discloses that those delays are
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`asynchronous. (Ex. 1023 at p. 25, cl. 2.) Dr. Lynn also acknowledged that CMP
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`stacking can be used with asynchronous sources to render one source coherent and
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`the other incoherent. (Ex. 1022 at 114:22-116:4.) CMP stacking allows for the
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`14
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`separation of two asynchronous sources after they have been time aligned using
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`Case IPR2015-00311
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`NMO (Ex. 1022 at 60:6-10; Ex. 1021 at 1506-07), and both Dr. Ikelle and Dr.
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`Lynn agree that CMP gathers can be used in either the marine or land context.
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`(Ex. 1022 at 94:23-95:4; Ex. 1002 at ¶ 30.)
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`And in any event, Edington and Beasley both decode by summing traces that
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`correspond to the same seismic event. As Dr. Lynn explained, Edington can do
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`this in the land context by repeating the same source-receiver locations. (Ex. 1022
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`at 145:12-20 (“Q. And because the source and the receiver are in the same
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`location, you can assume that the traces are reflecting the same seismic event? A.
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`Correct.”)) But because “[i]n the marine context you generally don’t repeat the
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`same source and receiver locations” (id. at 145:21-24), instead “you can use a
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`CMP stack to enhance the signal” (id. at 146:23-147:2; see also id. at 56:7-17
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`(explaining that “CMP traces . . . essentially relate to the same seismic event”).)
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`This CMP stacking is taught in Beasley, and one of skill in the art would have
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`expected it to separate Edington’s asynchronous sources in light of the known
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`phenomenon discussed in, e.g., Dr. Lynn’s 1987 paper.
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`3. Beasley and Edington Are Not Incompatible
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`PGS’s argument that Beasley and Edington are incompatible is based on
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`PGS’s creation of an unsolvable smearing problem that simply does not exist in
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`practice. Specifically, PGS argues that using Edington’s decoding technique with
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`15
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`Beasley’s encoding technique would result in the loss of spatial resolution, which
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`Case IPR2015-00311
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`PGS alleges Beasley seeks to avoid. (POR at 36.) As an initial matter, and as
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`discussed above, there is no reason that POSA would have to utilize Edington’s
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`specific decoding method in the proposed combination with Beasley because
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`POSA would understand that Edington’s decoding method is analogous to CMP
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`stacking, which was commonly used in marine seismic surveys and explicitly
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`disclosed in Beasley. (Ex. 1022 at 146:9-147:2.) As discussed above, POSA
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`would have known that Beasley’s CMP teaching would separate Edington’s
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`asynchronous sources as evidenced by, e.g., Dr. Lynn’s 1987 paper showing such a
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`result. (Ex. 1022 at 62:19-24 (“And what you discovered in 1987 was the
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`phenomenon that using regular equipment and using regular CMP techniques, you
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`could suppress the second source if it was asynchronous to the first? A. That’s
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`correct.”).)
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`PGS alleges that spatial smearing occurs when shot records or traces are
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`considered as a single shotpoint and there is a loss in spatial resolution because the
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`shotpoint corresponds to a mix of multiple different locations. (Ex. 2001 at ¶ 146.)
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`But in making its argument, PGS overlooks that spatial smearing is an element in
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`all seismic surveys and that POSA would know how to account for any smearing
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`when isolating the source signals. (Ex. 1022 at 35:20- 36:22 (sensors 25 meters
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`apart are often summed and treated as a single point, and that up to 10 to 12
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`16
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`sensors would typically be combined); id at 81:12-15 (ship movements during
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`Case IPR2015-00311
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`shots could smear another 25 meters).) This summing and movement would
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`necessarily result in a loss of spatial resolution, or seismic smearing, and dealing
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`with this known and well-understood problem was simply a routine part of
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`processing the survey data and part of the level of ordinary skill held by POSA.6
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`And, as PGS does not dispute, such smearing would not exist if Beasley’s CMP
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`gathers were used, which specifically update the geometry for each shot point.
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`(Ex. 1004 at 4:16-29.)
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`C. Beasley and Edington Render Obvious Quasi-Random and
`Random Time Delays
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`Edington teaches both systematic variation in time delays and the use of
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`“sources which exhibit considerable random variation.” (Ex. 1006 at 4:46-50; Ex.
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`1022 at 144:2-5 (“Q. What Edington teaches in at least some embodiments is that
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`you vary the time delay systematically from shot to short. Is that fair? A. Yes.”))
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`6 To the extent any disputes exist between Dr. Ikelle’s and Dr. Lynn’s opinions, it
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`is worth noting that the former has published papers and books and taught broadly
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`on marine simultaneous sources and also has prior art patents of his own in the
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`field, while the latter is a former PGS executive with no relevant publications in
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`the field and no knowledge or involvement in the field until about a decade after
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`the ’981 patent’s priority date. (Ex. 1002, App’x. A; Ex. 1022 at 19:11-21:13.)
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`17
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`As Dr. Lynn explained, Beasley’s system may include random variations as well
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`Case IPR2015-00311
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`based on the towing vessel’s velocity. (Ex. 1022 at 79:18-80:24 (“Q. But if there
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`were varying speeds, your time intervals would vary so that you would get the
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`shots at the same meter interval? A. Correct.”); id. at 126:14-17 (“Q. If the
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`velocity is variable during a survey, will the firing times of the shots be variable as
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`well? A. I would assume.”).) And, as explained by Dr. Ikelle, systematic,
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`random, and quasi-random variations were all routine design choices well within
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`the skill of POSA. (Ex. 1002 at ¶¶ 259-62, 318-19.)
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`Dr. Lynn agreed that systematic, random, and quasi-random variations were
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`all known design choices within the skill of POSA. (Ex. 1022 at 160:15-161:6.)
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`For example, Dr. Lynn points to a specific example of the exact type of book
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`POSA would have looked to when generating the random or quasi-random
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`sequence of events—Numerical Recipes in FORTRAN 77 Second Edition. (See
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`Ex. 2022.) As Dr. Lynn explains, this book includes tools that a person writing
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`code in FORTRAN would “absolutely” look to when generating their sequence of
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`numbers. (Ex. 1022 at 159: 14-20.)
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`To the extent not explicitly disclosed in Edington or Beasley, both experts
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`agree that the various types of time delays recited in the dependent claims were
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`predictable design choices available before the priority date. (Ex. 1002 at ¶¶ 259-
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`62, 318-19; Ex. 1022 at 160:15-24.) These claims are therefore obvious.
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`Case IPR2015-00311
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`D. Beasley and Edington Render Obvious the Use of CMP Gathers to
`Determine Shot to Shot Coherence
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`Beasley discloses using CMP gathers to determine shot to shot coherence,
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`and PGS’s suggestion otherwise ignores the basic teachings of Beasley, and the
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`prior art in general. As Dr. Lynn explained, Beasley’s disclosure that the traces are
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`“optionally sorted to order, e.g., by known common mid-point (CMP) sorting
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`methods,” is a clear teaching that you could use CMP gathers with the traces in
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`Beasley. (Ex. 1022 at 103:16-104:7; Ex. 1004 at 4:22-23.) Using CMP stacks to
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`attenuate sources while keeping the first source coherent was well known. (Ex.
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`1022 at 31:3-6; 31:22-32:2.) If Edington’s variable time delays are used with
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`Beasley, it is a basic principle of seismic surveying that in a CMP gather the
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`second source becomes incoherent and stacking suppresses the energy. (Ex. 1022
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`at 57:13-19.) PGS ignores this known and predictable result. Moreover, as Dr.
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`Lynn acknowledged, “if you have a CMP gather and you see a hyperbolic curve,
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`that’s an example of shot-to-shot coherence.” (Ex. 1022 at 71:24-72:3.) Beasley
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`discloses the use of CMP gathers “to make each trace distinct and can be
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`discriminated e.g. so that move out is hyperbolic and distance from other source
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`data.” (Ex. 1004 at 4:6-29.) Thus, not only was it known in 1987, over 10 years
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`before the ’981 patent, that if you had asynchronous sources you could make the
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`second source incoherent using a CMP gather, but Beasley also recognizes
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`hyperbolic move out, which would be understood by POSA as teaching the use of
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`19
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`CMP gathers to determine shot to shot coherence. (Ex. 1022 at 60:6-10.)
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`Case IPR2015-00311
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`Accordingly, Beasley and Edington render obvious the use of CMP gathers to
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`determine shot to shot coherence.
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`IV. PGS FAILS TO ESTABLISH A NEXUS SUPPORTING ITS
`ALLEGED SECONDARY CONSIDERATIONS OF
`NONOBVIOUSNESS
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`PGS’s secondary considerations argument fails as a matter of law. The
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`burden is on PGS to present sufficient evidence to establish a nexus between the
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`purported secondary considerations and the patented invention. See e.g., Liberty
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`Ammunition, Inc. v. United States, 119 Fed. Cl. 368, 397 (2014). But PGS has
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`failed to show that any alleged industry praise or copying relate to the
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`embodiments of the challenged claims, let alone establish a nexus between its
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`examples and the allegedly “novel” features of the claims.
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`PGS offers no claim charts, expert testimony, or any evidence that anyone
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`has ever even practiced an
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