Case No. IPR2015-00565
`Attorney Docket: 37136-0004IP1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________________
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`ION GEOPHYSICAL CORPORATION
`AND ION INTERNATIONAL S.A.R.L.,
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`Petitioners
`v.
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`WESTERNGECO LLC
`Patent Owner
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`
`_______________________
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`
`
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`PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 7,293,520
`UNDER 35 U.S.C. §§ 311-319 and 37 C.F.R. §§ 42.1-.80, 42.100-.123
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`
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark
`Office P.O. Box 1450
`Alexandria, VA 22313-1450
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`Case No. IPR2015-00565
`Attorney Docket: 37136-0004IP1
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`TABLE OF CONTENTS
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`INTRODUCTION ............................................................................................... 1
`I.
`II. GROUNDS FOR STANDING (37 C.F.R. § 42.104(a)); PROCEDURAL
`STATEMENTS .......................................................................................................... 1
`III. MANDATORY NOTICES (37 C.F.R. § 42.8(a)(1)) ....................................... 2
`IV. STATEMENT OF THE PRECISE RELIEF REQUESTED AND THE
`REASONS THEREFOR (37 C.F.R. §§ 42.22(a) and 42.104(b)) ............................. 3
`V. OVERVIEW ..................................................................................................... 3
`VI. THE ’520 PATENT .......................................................................................... 7
`A. The ’520 Patent’s Specification .................................................................... 7
`B. Challenged Claims 1, 2, 6, 18, 19 and 23 of the ’520 Patent ........................ 8
`VII. CLAIM CONSTRUCTION ........................................................................... 18
`A. Streamer Positioning Device ....................................................................... 19
`B. Control System ............................................................................................ 19
`C.
`Feather Angle Mode .................................................................................... 20
`D. Turn Control Mode ...................................................................................... 22
`E.
`Streamer Separation Mode .......................................................................... 23
`F.
`“A control system configured to use a control mode selected from a
`feather angle mode, a turn control mode, a streamer separation mode, and two or
`more of these modes” ........................................................................................... 26
`VIII. DETAILED EXPLANATION OF GROUNDS FOR ANTICIPATION
`AND/OR OBVIOUSNESS ...................................................................................... 28
`A. GROUND 1: CLAIMS 18 AND 1 ARE ANTICIPATED BY THE
`WORKMAN PATENT ........................................................................................ 28
`B. GROUND 2: CLAIMS 1, 2, 18 & 19 ARE OBVIOUS OVER THE
`WORKMAN PATENT ........................................................................................ 32
`C. GROUND 3: CLAIMS 1, 2, 18, & 19 ARE ANTICIPATED BY THE
`HEDBERG PATENT ........................................................................................... 38
`D. GROUND 4: CLAIMS 1, 2, 18, and 19 ARE OBVIOUS OVER THE
`HEDBERG PATENT ........................................................................................... 46
`E. GROUND 5: CLAIMS 1, 6, 18, AND 23 ARE OBVIOUS OVER THE
`’636 PCT IN VIEW OF THE ’153 PCT ............................................................... 49
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`F. GROUND 6: CLAIMS 1, 6, 18, AND 23 ARE OBVIOUS OVER
`DOLENGOWSKI IN VIEW OF THE ’636 PCT ................................................. 57
`IX. CONCLUSION .............................................................................................. 60
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`Case No. IPR2015-00565
`Attorney Docket: 37136-0004IP1
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`TABLE OF AUTHORITIES
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`FEDERAL CASES
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`Abbott Labs v. Baxter Pharm. Prods., Inc.,
` 334 F.3d 1274 (Fed. Cir. 2003) ...................................................................26
`
`
`Crystal Semiconductor Corp. v. TriTech Microelectronics,
`246 F.3d 1336 (Fed. Cir. 2001)….................................................................26
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`Curtiss-Wright Flow Control Corp.,
` 438 F.3d 1374, 1380 (Fed. Cir. 2006) .........................................................25
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`In re Yamamoto, 740 F.2d 1569 (Fed. Cir. 2004) ..................................................18
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`Janssen Pharmaceutica v. Eon Labs Mfg., Inc.,
` 134 Fed. App’x 425 (Fed. Cir. 2005) ..........................................................10
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`KSR Int’l Co. v. Teleflex Inc.,
`550 U.S. 398 (2007)..........................................................................35, 57, 59
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`Philips v. AWH Corp.,
` 415 F.3d 1303 (Fed. Cir. 2005) ...................................................................25
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`STATUTES, RULES & OTHER
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`37 C.F.R § 42 et seq. ..................................................................................1, 2, 3, 18
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`35 U.S.C. § 102 ...................................................................................3, 9-14, 28, 38
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`35 U.S.C. § 103 ..................................................................................................3, 28
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`35 U.S.C. § 119 ......................................................................................................10
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`35 U.S.C. § 311 ........................................................................................................1
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`35 U.S.C. § 363 ........................................................................................................9
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`G. Upchurch, Intellectual Property Litigation Guide: Patents and Trade Secrets
`(Oct. 2013)....................................................................................................10
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`S. Upadhy, Generic Pharmaceutical Patent and FDA Law (April 2013) ..............10
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`Case No. IPR2015-00565
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`I.
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`INTRODUCTION
`Pursuant to 35 U.S.C. § 311 and 37 C.F.R. § 42.100, ION Geophysical
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`Corporation and ION International S.a.r.l. (collectively, “ION” or “Petitioners”)
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`request Inter Partes review of Claims 1, 2, 6, 18, 19, and 23 of U.S. Patent No.
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`7,293,520 (the “’520 Patent”) (Ex. 1001), assigned on its face to WesternGeco
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`L.L.C. (“Patent Owner”). This Petition substantively copies the petition filed in
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`co-pending IPR2014-00689, which was instituted on December 15, 2014.
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`Accompanying this Petition is a motion to join IPR2014-00689. For at least the
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`reasons stated herein, Petitioners request that Claims 1, 2, 6, 18, 19, and 23 of the
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`’520 Patent be judged unpatentable and canceled. Because this Petition
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`substantively copies the petition filed in co-pending IPR2014-00689 and that IPR
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`has been instituted, this Petition establishes a reasonable likelihood Petitioners will
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`prevail with regard to Claims 1, 2, 6, 18, 19, and 23 of the ’520 Patent.
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`II. GROUNDS FOR STANDING (37 C.F.R. § 42.104(a)); PROCEDURAL
`STATEMENTS
`Petitioners certify that (1) the ’520 Patent is available for inter partes
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`review; and (2) Petitioners are not barred or estopped from requesting inter partes
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`review of any claim of the ’520 Patent on the grounds identified in this Petition.1
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`1 Petitioners were never served, they did not waive service, and a waiver of service
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`was never filed in any litigation involving U.S. Patent No. 7,293,520, including
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`Case No. IPR2015-00565
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`This Petition is filed in accordance with 37 C.F.R. § 42.106(a).
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`Concurrently filed herewith are a Power of Attorney and Exhibit List pursuant to
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`§ 42.10(b) and § 42.63(e), respectively. The Director is authorized to charge the
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`fees specified by 37 C.F.R. § 42.15(a) to Deposit Account No. 06-1050.
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`III. MANDATORY NOTICES (37 C.F.R. § 42.8(a)(1))
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`Real Parties-In-Interest (37 C.F.R. § 42.8(b)(1)): ION Geophysical
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`Corporation and ION International S.a.r.l. (collectively, “ION” or “Petitioners”).
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`Notice of Related Matters (37 C.F.R. § 42.8(b)(2)): The ’520 patent is or
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`has been the subject of the following civil actions: (i) Civ. Act. No. 4-09-cv-01827
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`(S.D. Tex.), filed Jun. 12, 2009; (ii) Civ. Act. No. 4-10-cv-02120 (S.D. Tex.), filed
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`Jun. 16, 2010; (iii) Civ. Act. No. 4-13-cv-02385 (S.D. Tex.), filed Aug. 15, 2013;
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`and (iv) Civ. Act. No. 4-13-cv-02725 (S.D. Tex.), filed Sep. 16, 2013.
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`Additionally, the ’520 patent is the subject of the following petitions for IPR:
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`IPR2014-00689 and IPR2014-01478.
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`Lead and Back-Up Counsel and Service Information (37 C.F.R. §§
`42.8(b)(3) and (4)):
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`Petitioners designate W. Karl Renner, Reg. No. 41,265, as Lead Counsel and
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`Roberto Devoto, Reg. No. 55,108, as Backup Counsel, both available at 3200 RBC
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`Civ. Act. No. 4-09-cv-01827 (S.D. Tex.), filed Jun. 12, 2009. See Ex. 1064
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`(Docket of Civ. Act. No. 4-09-cv-01827).
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`Case No. IPR2015-00565
`Attorney Docket: 37136-0004IP1
`Plaza, 60 South Sixth Street, Minneapolis, MN 55402 (T: 202-783-5070; F: 202-
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`783-2331), or electronically by email at IPR37136-0004IP1@fr.com.
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`IV. STATEMENT OF THE PRECISE RELIEF REQUESTED AND THE
`REASONS THEREFOR (37 C.F.R. §§ 42.22(a) and 42.104(b))
`Petitioners request inter partes review under 37 C.F.R. § 42.108 as to
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`Claims 1, 2, 6, 18, 19 and 23 of the ’520 Patent and a ruling that Claims 1, 2, 6, 18,
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`19 and 23 are unpatentable based on one or more of the grounds under 35 U.S.C.
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`§§ 102 or 103 set forth herein. Petitioners’ detailed statement of the reasons for the
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`relief requested is set forth in Section VIII below.
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`V. OVERVIEW
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`The ’520 Patent is directed to marine seismic surveying technology. These
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`surveys use reflected sound waves to determine geological properties of the earth’s
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`subsurface by using vessels to tow acoustic energy sources that fire “shots” of
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`sound waves into the water. These are reflected back and recorded by acoustic
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`sensors (“hydrophones” or “receivers”) that are towed in long cables known as
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`seismic “streamers.” In modern surveys, the vessel will typically tow a plurality of
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`streamers in an “array” and will traverse the survey area in straight lines, turning in
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`between, as if mowing a lawn. Ex. 1002 (Evans) at ¶¶ 28, 32.
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`“Streamer positioning devices,” sometimes called “birds” or “paravanes,” are built
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`into or attached to streamers to control their positions. See, e.g., Ex. 1009 (U.S.
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`Patent No. 3,605,674) (“Weese”)). The devices have at least one water-deflecting
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`surface (e.g., a wing, fin, or rudder) that can be positioned to adjust the streamers’
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`depths and/or lateral movement.
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`The ability to control streamer positions was recognized long before 1998 as
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`critical for efficiently obtaining quality seismic data. Currents and other forces can
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`push the streamers off of their pre-planned paths. Ex. 1002 (Evans) at ¶ 35. If the
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`survey fails to record sufficient data throughout the survey area, in accordance with
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`the survey plan, the vessel and streamers must re-acquire the missing data, which is
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`a time-consuming and expensive process. Id. Moreover, streamers veering off
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`course results in recording irregularly distributed and thus lower quality data. Id.
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`¶¶ 36-38. As Dr. Evans explains, “one of the primary goals of 3D marine seismic
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`data acquisition is to conform the actual survey to the survey plan’s specifications,
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`including maintaining the streamers’ positions along the pre-planned designated
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`course.” Id. ¶ 32. Streamers deviating from their planned positions also risks
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`entanglement of the expensive survey equipment. Id. ¶ 39. Long before 1998,
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`streamer steering was known as an effective solution for avoiding the degradation
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`of seismic data quality and streamer tangling that can be caused by currents. Id. ¶¶
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`49-51; Ex. 1005 (U.S. Patent No. 3,581,273) (“Hedberg”); Ex. 1009 (Weese).
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`Another long recognized problem relating to the positions of streamers
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`relates to turning the vessel and the seismic array. Turns are time-consuming and
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`risk streamer tangling. Ex. 1002 (Evans) at ¶ 40; Ex. 1008 (U.S. Patent No.
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`4,890,568) (“Dolengowski”); Ex. 1010 (U.S. Patent No. 4,231,111) (“Neeley”);
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`Ex. 1011 (U.S. Patent No. 4,486,863) (“French”). Centripetal forces compress the
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`streamers inward during a turn, which increases the risk of tangling. Ex. 1002
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`(Evans) at ¶¶ 40, 88-89; Ex. 1008 (Dolengowski) at 2:27-34.
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`Streamer positioning devices can be used to counteract this force and to prepare for
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`a straight and parallel configuration for use once the turn is complete. Id.
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`As explained by Dr. Evans, the problems relating to seismic data quality,
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`streamer tangling, and turning became more acute when the use of multi-streamer
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`arrays expanded throughout the 1980s and 1990s as a result of advances in
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`computing technology. Ex. 1002 (Evans) at ¶ 72; Ex. 1003 (Cole) at ¶ 42. Not only
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`were streamers being added to increase the width of the array, but also they were
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`being placed closer together in order to increase the quality of the seismic
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`image. Ex. 1002 (Evans) at ¶ 71. As a result, both the amount of data acquired in
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`a survey and the risk of entanglement increased significantly. And as survey
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`equipment became more expensive to deploy, the cost of downtime during turns—
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`when no data are acquired—also increased. The cost of in-filling to re-acquire
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`missing or low quality data likewise increased. Id. at ¶ 73. Surveyors in 1998 thus
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`were highly motivated to use streamer steering to avoid these problems.
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`Seismic steering also increased in importance when so called “4D” time-
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`lapse seismic surveys became more widely used in the mid-1990s. Time-lapse
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`surveys are performed by repeating 3D surveys over the same area at different
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`times to monitor any changes in the earth’s geology. Ex. 1012 (David H. Johnston,
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`“Time-Lapse Seismic analysis of the North Sea Fulmer Field,” SEG Extended
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`Abstracts (1997)). It was well-understood that in order to be effective, the location
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`of the streamers (and attached receivers) in a 4D survey should match the locations
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`in the previous surveys. Id. (“[R]epeatability of seismic data is a key issue”); Ex.
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`1002 (Evans) at ¶ 151. It was also well understood that streamer steering was
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`useful for this purpose. Id. Surveyors were therefore motivated to implement
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`streamer steering by the priority date to acquire high-quality 4D data. Id.
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`The declarations of Dr. Evans and Dr. Cole summarize improvements in
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`streamer positioning and control systems since the 1970s, including the disclosures
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`of laterally steerable streamer positioning devices and automatic control systems
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`that sought to address the following problems: (1) the degradation of seismic data
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`quality and the avoidance of gaps in coverage; (2) streamer tangling; (3) issues
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`related to turning; and (4) issues relating to the repeatability of 4D surveys. By the
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`October 1998 priority date, systems to resolve these problems were well-known.
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`VI. THE ’520 PATENT
`A. The ’520 Patent’s Specification
`The ’520 Patent, entitled “Control System for Positioning of Marine Seismic
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`Streamers,” is directed to a system for controlling seismic streamer positions
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`during a survey. The Patent points to the well known motivations for streamer
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`steering, including avoiding reduced “efficiency of current 3D seismic survey
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`operations,” “incidents of tangling adjacent streamers,” and “the loss of efficiency
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`associated with turning the seismic survey vessel.” Ex. 1001 at 2:14-22.
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`All of the Claims at issue in this proceeding relate to three “control modes”
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`directed to addressing these well-known problems: “feather angle control mode”;
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`“turn control mode” and “streamer separation mode.” In the feather angle mode,
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`the control system “attempts to keep each streamer in a straight line offset from the
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`towing direction by a certain feather angle.” Id. at 10:29-32. In turn control mode,
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`the control system sends signals to the streamer positioning devices to “‘throw out’
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`the streamer by generating a force in the opposite direction of the turn.” Id. at
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`10:39-42. Finally, in “streamer separation mode,” the control system sets a
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`minimum separation between streamers in one embodiment and, in another,
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`“attempts to minimize the risk of entanglement of the streamers” by positioning the
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`streamers “to maximize the distance between adjacent streamers.” Id. at 10:57-58.
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`B. Challenged Claims 1, 2, 6, 18, 19 and 23 of the ’520 Patent
`The claims at issue in this proceeding relate to these modes. Claim 1 recites:
`1. A method comprising:
`(a) towing an array of streamers each having a plurality of streamer
`positioning devices there along contributing to steering the
`streamers;
`(b) controlling the streamer positioning devices with a control
`system configured to operate in one or more control modes
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`selected from a feather angle mode, a turn control mode, and a
`streamer separation mode.
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`Claim 18 is a corresponding apparatus claim for a control system “configured to
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`use a control mode selected from” one or more of the three modes. Claims 2 and
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`19 are dependent method and apparatus claims that are directed only to “feather
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`angle control mode”; and Claims 6 and 23 are dependent claims directed to a
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`particular embodiment of “turn control mode.” Ex. 1001 at Cols. 11-12.
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`C.
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`Prior Art Relied Upon in this Petition
`1. Workman
`The Workman Patent (Ex. 1004), titled “Adaptive Control of Marine
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`Seismic Streamers,” issued on August 4, 1998. Because it was published before the
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`October 1, 1998 filing date of the Great Britain application to which the ’520
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`Patent claims priority, it is prior art under 35 U.S.C. § 102(a).
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`The Workman Patent also constitutes prior art under 35 U.S.C. § 102(b)
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`because it issued on August 4, 1998 and the critical date of the ’520 Patent for
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`§ 102(b) purposes is September 28, 1998—one year before its PCT filing date.
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`The ’520 Patent issued from a continuation that claims priority to PCT application
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`No. 99/01590, filed on September 28, 1999. The filing date of the international
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`PCT application is the effective U.S. filing date and is used to determine the
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`critical date for purposes of 35 U.S.C. § 102(b). See 35 U.S.C. § 363 (“An
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`international application designating the United States shall have the effect, from
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`its international filing date under article 11 of the treaty, of a national application
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`for a patent regularly filed in the Patent and Trademark Office.”); 35 U.S.C.
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`§ 119(a) (1994) (“no patent shall be granted on any application for patent for an
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`invention which had been patented or described in a printed publication in any
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`country more than one year before the date of the actual filing of the application in
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`this country”). These provisions establish that the critical date is based on the PCT
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`application date, not the date of an earlier filed foreign patent application. See,
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`e.g., Janssen Pharmaceutica v. Eon Labs Mfg., Inc., 134 Fed. App’x 425 (Fed. Cir.
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`2005); Ex. 1061 (G. Upchurch, Intellectual Property Litigation Guide: Patents and
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`Trade Secrets (Oct. 2013)) at § 15:5 (“the PCT application is the U.S. filing date”
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`and “the critical date for § 102(b) prior art” is one year before that date, rather than
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`one year before the earlier British application date); Ex. 1062 (Shashank Upadhy,
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`Generic Pharmaceutical Patent and FDA Law (April 2013)) at § 1.71.
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`Workman discloses an “improved system for controlling the position and
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`shape of marine seismic streamers.” Ex. 1004 (Workman) at 1:6-8. Like earlier
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`art, Workman recognized that because currents “will deflect the streamer cables
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`from their intended paths,” streamer steering “is desirable for preventing the
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`entanglement of streamer cables and for avoiding collisions with offshore
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`hazards.” Id. at 1:28-36. Workman also recognized that streamer steering was
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`desirable for efficient high-quality 3D marine seismic surveys. See id. at 1:37-41.
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`To perform this steering, Workman disclosed streamer positioning devices to
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`control the streamers’ lateral movement and depth during a survey. Id. at 1:45-61.
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`Workman discloses a control system configured to operate in various
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`streamer steering modes. In Workman’s system, the operator would implement a
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`particular mode by inputting “threshold parameters” that would determine when
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`and how the streamer positioning devices are repositioned. Workman disclosed a
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`non-exhaustive list of possible “threshold parameters,” including values for
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`“minimum allowable separations between streamer cables” and “minimum
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`allowable separations between any streamer cable and any obstructive hazard.” Id.
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`at 3:65-4:3. These modes would substantially reduce the risk of streamer tangling,
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`whether due to currents or obstructions such as oil rigs. Ex. 1002 (Evans) at ¶ 138.
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`2. Hedberg
`The Hedberg Patent (Ex. 1005), titled “Marine Seismic Exploration,” was
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`issued on May 25, 1971, and is prior art under 35 U.S.C. § 102(a) and (b).
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`Hedberg discloses a streamer positioning system that operates in a mode
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`whereby multiple streamers are maintained in straight lines behind the vessel using
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`laterally steerable streamer positioning devices. Hedberg recognized that errors in
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`seismic data occur “due to the set and drift or displacement of the spread by marine
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`currents.” Ex. 1005 at 6:28-32. In response, Hedberg disclosed a system to
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`“maintain[]” streamers “in such fixed or predetermined relative positions during
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`[the] survey [so] as to assure the accuracy of records produced.” Id. at 2:2-7.
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`Hedberg’s streamer positioning devices “may be controlled to maintain them in
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`predetermined and accurate positions with respect to each other.” Id. at 6:49-54.
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`Consequently, “[t]he seismic means are . . . held in such consistent and related
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`positions during traverse of the area under survey that the records obtained will be
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`capable of ready and accurate correlation and interpretation.” Id. at 6:54-57.
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`The ’636 PCT
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`3.
`International PCT Application No. WO 98/28636 (Ex. 1006), titled “Control
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`Devices for Controlling the Position of a Marine Seismic Streamer,” was published
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`on July 2, 1998. Because it was published before the October 1, 1998 filing date of
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`the Great Britain application to which the ’520 Patent claims priority and the
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`critical date, it is prior art under 35 U.S.C. §§ 102(a) and (b).
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`The ’636 PCT discloses a sophisticated streamer positioning device control
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`system. In so doing, it reiterates long-known motivations for streamer steering:
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`During the seismic survey, the streamers are intended to remain
`straight, parallel to each other and equally spaced. . . But because of
`sea currents, the streamers frequently fail to accurately follow the path
`of the seismic survey vessel, sometimes deviating from this path by an
`angle, known as the feathering angle, of up to 10°. This can adversely
`affect the coverage of the survey, frequently requiring that certain
`parts of the survey be repeated. In really bad circumstances, the
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`streamers can actually become entangled, which though rare, causes
`great damage and considerable financial loss.
`Ex. 1006 (’636 PCT) at 2.
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`In response, the ’636 PCT disclosed “novel streamer control devices which
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`alleviate at least some of the disadvantages of the current designs.” Id. Its
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`streamer positioning devices, called “birds,” are controlled by a control system on
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`the vessel that sends positioning commands to control systems within each bird.
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`Specifically, the ’636 PCT explains that the local control system within each bird
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`“receive[s] control signals representative of desired depth, actual depth, desired
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`lateral position, actual lateral position and roll angle of the bird . . . .” Id. at 4-5.
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`Using that information, the bird’s control circuit then “calculate[s]” and applies the
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`forces necessary “to move the bird to the desired depth and lateral position.” Id.
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`The ’153 PCT Application
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`4.
`International PCT Application Number WO 84/03153 (Ex. 1007), titled
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`
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`“Device in a Hydrophone Cable for Marine Seismic Surveys,” was published on
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`August 16, 1984, and is prior art under 35 U.S.C. § 102 (a) and (b).
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`
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`The ’153 PCT controlled a streamer cable using a “steerable end rudder or
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`steerable fins provided in the longitudinal direction of the cable.” Ex. 1007 at 11.
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`It recognized the problems of streamer deviation from the pre-determined path and
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`thus disclosed an “adaptive control system which manoeuvres the cable in such a
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`way that [the cable] will be positioned as favourably as possible in relation to the
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`reference line from which data is wanted in the sailing programme.” Id. at 10. The
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`’153 PCT specifically addressed the problems associated with turning the streamer
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`array, including that the “turning process is very time consuming, since the turning
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`must be carried out in such a way that the cable must be sufficiently straight before
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`starting a new line.” Id. at 10-11. The ’153 PCT thus endeavored to turn “along a
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`track which is as short as possible and renders an optimum shape of the cable prior
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`to the commencement of another [survey] line.” Id. at 11. To steer correctly
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`during this shorter turn, the ’153 PCT disclosed a “turning programme” that “can
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`be put in[to] [the system] as a completely controlled programme.” Id.
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`Dolengowski
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`5.
`The Dolengowski Patent, U.S. Patent No. 4,890,568 (Ex. 1008), titled
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`
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`“Steerable Tail Buoy,” was published on January 2, 1990, and is prior art under 35
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`U.S.C. § 102(a) and (b).
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`
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`Dolengowski disclosed a steerable “tail buoy,” which is a streamer
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`positioning device that is located at the end of the streamer. This tail buoy
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`included “two or more rudders, a steering mechanism and a communication
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`system.” Ex. 1008 at 3:3-5. The steering mechanism “controls the rudder position
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`based on signals received by the communication system from a remote transmitter
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`on the vessel.” Id. at 3:9-12. The computer on the survey vessel “would
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`continuously monitor the precise location of the tail buoy and initiate any
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`necessary actions to adjust the course of the tail buoy.” Id. at 3:40-42.
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`
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`Dolengowski’s tail buoy was aimed primarily at ameliorating the turning
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`problem. Dolengowski recognized that streamers can “cross and become tangled”
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`during a turn. Id. at 2:25-27. Without lateral steering, the tail buoys “are likely to
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`cross and become hooked, or the ropes that connect the buoys to the streamers may
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`become tangled.” Id. at 2:27-34. Dolgenowski explained that steering was
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`important outside the turn context as well, as “the wind and water current may
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`cause the trailing end of the streamer to feather outwardly from the vessel’s path”
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`and thereby risk damage to the streamer or tail buoy. Id. at 2:39-49. Dolengowski
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`thus disclosed a tail buoy “which can be remotely steered” to “prevent tangling of
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`the tail buoys or damage to the tail buoys or streamers.” Id. at 2:54-58.
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`Summary of the Prosecution History of the ’520 Patent
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`A.
`The ’520 Patent issued from Application No. 11/455,042 which was filed on
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`
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`June 16, 2006 with 34 claims. On August 18, 2006, the examiner rejected four
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`claims for nonstatutory double patenting and objected to the remaining 30 because
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`they depended from the rejected claims. Ex. 1048 at 2-3. After the applicant filed
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`a terminal disclaimer, the examiner allowed all of the claims. Ex. 1051.
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`B. District Court Litigation Relating to the Validity of Claim 18
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`In District Court litigation, WesternGeco (“WG”) asserted that Claims 18,
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`
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`19, and 23 of the ’520 Patent were infringed by ION Geophysical Corporation
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`(“ION”). ION contended Workman anticipated Claim 18. The jury concluded that
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`ION had not proven invalidity by clear and convincing evidence, and the court
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`denied ION’s motion for a new trial. Ex. 1013 (Jury Verdict) at 3; Ex. 1014 (Order
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`on Post Trial Motions) at 10. This Petition, however, presents new grounds for
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`invalidity that were not presented or adjudicated in the ION litigation.
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`
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`The jury’s conclusion that Workman did not anticipate, on a different record,
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`with a different claim construction, and a different burden of proof, is not relevant
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`or persuasive here. The argument at trial turned on the question of whether
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`Workman disclosed streamer separation mode, which the Court (applying a
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`different standard) construed to mean “a control mode that attempts to set and
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`maintain the spacing between adjacent streamers.” Ex. 1015 (Markman Order) at
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`28. That narrow construction plainly does not apply here, as the specification is
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`bereft of support for the proposition that spacing between adjacent streamers must
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`be “set” at both a minimum and maximum distance in streamer separation mode.
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`
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`The broadest reasonable construction of that term encompasses setting a
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`minimum distance between the streamers. See Section VII.E., infra. There can be
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`no dispute that Workman practices streamer separation mode under this
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`construction, as WesternGeco acknowledged that Workman disclosed a threshold
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`parameter of “minimum allowable separations between the streamer cables.” Ex.
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`1016 (WG’s Opp. to ION’s Mot. for New Trial) at 10-11.
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`
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`In any event, even under the narrow construction it applied (which does not
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`apply here), the jury’s finding cannot be squared with even a basic understanding
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`of the streamer array’s physics. As Dr. Evans explains, there is a maximum
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`separation distance that each vessel and streamer array may attain, depending on
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`the length and geometry of the system’s components. Ex. 1002 at ¶ 139.
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`Workman discloses a “streamer separation mode” even under the District Court’s
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`construction when its threshold parameter of “minimum allowable separation
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`distance” is set at the same value as the maximum streamer separation distance.
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`Id. at ¶ 140. At that threshold value, Workman would set both a minimum and
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`maximum distance between streamers—an appropriate array configuration in
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`extreme weather conditions when the streamer entanglement risk is high. Id.
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`
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`WesternGeco’s final argument—that Workman did not enable lateral
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`steering—is likewise inapplicable and unsupportable on this record. Workman
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`specifically disclosed a system of streamer positioning devices to control the
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`streamers’ lateral movement during a survey. Ex. 1004 at 1:45-61; Ex. 1002
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`(Evans) at ¶¶ 131-32, 145. There is no doubt that the prior art—including prior art
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`addressed below and not considered in prosecution or the litigation—repeatedly
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`discloses and enables lateral steering. See, e.g., Ex. 1009 (Weese) at 6:47-50; Ex.
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`1017 (U.S. Patent No. 5,532,975) (“Elholm”) at 5:56-67; Ex. 1006 (’636 PCT) at
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`2-3; Ex. 1018 (U.S. Patent No. 6,011,752) (“Ambs”) at 2:56-63, 3:3-7. Indeed,
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`WesternGeco conceded that the ’636 PCT discloses “a streamer positioning device,
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`or ‘bird,’ to steer the streamer both laterally and in depth.” Ex. 1016 (WG’s Opp.
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`to ION’s Mot. for New Trial) at 2; ----------------------------------------------------------
`
`-------------------------------------2 As Dr