Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 1 of 31
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`WESTERNGECO L.L.C.,
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`Plaintiff,
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`v.
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`)
`)
`)
`)
`)
`) Civil Action No. 4:09-CV-01827
`)
`) Judge Keith P. Ellison
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`) Jury Trial Demanded
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`)
`- - - - - - - - - - - - - - - - - - - )
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`ION GEOPHYSICAL CORPORATION,
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`Defendant.
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`WESTERNGECO'S OPPOSITION TO ION'S MOTION FOR A NEW TRIAL
`ON INVALIDITY UNDER 35 U.S.C. §§ 102 AND 103 (D.I. 550)
`
`Lee L. Kaplan
`lkaplan@skv .com
`SMYSER KAPLAN
`& VESELKA, L.L.P.
`Bank of America Center
`700 Louisiana, Suite 2300
`Houston, TX 77002
`Tel: (713) 221-2323
`Fax: (713) 221-2320
`
`Attorneys for Plaintiff
`WesternGeco L.L. C.
`
`Of Counsel:
`
`Gregg F. LoCascio, P.C.
`gregg.locascio@kirkland.com
`KIRKLAND & ELLIS LLP
`655 Fifteenth Street, N.W.
`Washington, D.C. 20005-5793
`Tel.: (202) 879-5000
`Fax: (202) 879-5200
`
`Timothy K. Gilman
`timothy. gilman@kirkland. com
`Simeon G. Papacostas
`simeon. papacostas@kirkland. com
`KIRKLAND & ELLIS LLP
`601 Lexington A venue
`New York, New York 10022
`Tel.: (212) 446-4800
`Fax: (212) 446-4900
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`Dated: October 26, 2012
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`ION 1016
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`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 14 of 31
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`To the extent that Workman discusses lateral position as a "threshold parameter" for
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`noise considerations, it merely addresses "minimum allowable separations between the streamer
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`cables"-essentially an accident avoidance maneuver. (ION 266 at 3:62-4:3) These "minimum
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`allowable separations," as their name suggests, merely set a minimum threshold separation
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`between adjacent streamers. They do not in any way "maintain" a specific spacing, as the
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`Court's claim construction requires. (See, e.g., Trial Tr. at 3965:2-14) Even the term employed
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`by Workman, "threshold parameters," confirms that they will be invoked only at the margins, as
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`confirmed by Workman's specification. (See, e.g., ION 266 at 4:40-46) Unlike WesternGeco's
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`patented inventions or ION's infringing products, Workman discloses no mechanism of setting
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`or maintaining any spacing between streamers. On direct examination, Mr. Brune distinguished
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`between the patented and infringed setting a particular value for desired streamer separations and
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`actively maintaining the streamer positions at that desired separation value versus Workman's
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`concept of maintaining a minimum threshold parameter. (Trial Tr. at 3804:4-6 ("You can have a
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`particular desired value, a set point target, or you can have constraints or limits of minimum and
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`maximum values.")) The patents and accused products are based on setting and maintaining the
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`former, whereas Workman merely mentions the latter. Mr. Brune also admitted that Workman
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`"doesn't say" how to accomplish even this limited goal. !d. at 3 965: 11-14.
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`Mr. Brune further admitted on cross-examination that Workman's "threshold parameters"
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`failed to address the problems solved by the Bittleston patents, such as the trousering effect,
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`where the separation between streamers is too large. (See, e.g., Trial Tr. at 3965:15-3966:2; id.
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`at 3968:8-11 ("Q. The concept where the streamers get too far, trousering, that is not minimum
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`separation distance as disclosed in Workman, is it? A. That wouldn't be addressed."). More
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`generally, Mr. Brune conceded that Workman didn't disclose how to set and maintain any given
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`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 15 of 31
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`distance between adjacent streamers. ld. at 3970:8-12 ("Q. But if the Court's construction, set
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`and maintain spacing, requires the streamers to each be equidistant from one another, both in a
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`minimum and a maximum setting, then Workman doesn't disclose that, agreed? A. That's a
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`different case, yes."); see also id. at 3967:3-14. Significantly, Mr. Brune did not include any
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`opinion that Workman infringed Claim 18 of the '520 patent in his expert report during
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`discovery, nor did ION include such a theory in its Preliminary or Final Invalidity Contentions.
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`(D.I. 308 at 10-11). Workman was only raised after ION's principal defenses failed as a matter
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`oflaw.
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`Because Workman fails to disclose all of the limitations of WesternGeco's claimed
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`invention, ION's invalidity defense fails as a matter of law. Sanofi, 550 F.3d at 1082. And to
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`the extent ION attempts to cobble together evidence of anticipation with cherry-picked snippets
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`of testimony, ION fails to address the entire evidentiary record-including the portions discussed
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`above-or to credit the jury's balancing of any conflicting evidence or evaluation of witness
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`credibility.
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`ION fails to apply the proper analysis in seeking a new trial post-verdict, under
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`which ION's motion must fail.
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`C. Workman Does Not Anticipate Claim 15 of the '607 Patent
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`Claim 15 ofthe '607 patent provides:
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`15. An array of seismic streamers towed by a towing vessel compnsmg:
`(a) a plurality of streamer positioning devices on or inline with each streamer;
`(b) a prediction unit adapted to predict positions of at least some of the streamer
`positioning devices; and (c) a control unit adapted to use the predicted positions to
`calculate desired changes in positions of one or more of the streamer positioning
`devices.
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`(PTX 3). As Mr. Brune admitted, Claim 15 of the '607 patent requires lateral steering. (See,
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`e.g., Trial Tr. at 3977:20-3978:3) And as explained above, Workman does not enable lateral
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`steering or the claimed "streamer positioning devices" capable of steering a streamer
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