Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 1 of 30
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`
`
`
`
`
`
`)
`
`))
`
`)))))
`
`)
`)
`)
`
`
`)
`
`)
`) Civil Action No. 4:09-CV-01827
`)
`
`Judge Keith P. Ellison
`
`Jury Trial Demanded
`
`
`
`
`
`
`WESTERNGECO L.L.C.,
`
`
`
` Plaintiff,
`
`
`
` v.
`
`
`ION GEOPHYSICAL CORPORATION,
`
`
`
`Defendant.
`
`
`
`
`WESTERNGECO’S OPPOSITION TO ION’S RENEWED MOTION
`FOR JUDGMENT AS A MATTER OF LAW AND ALTERNATIVE
`MOTION FOR NEW TRIAL REGARDING NON-INFRINGEMENT (D.I. 556)
`
`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
`Ryan Kane
`ryan.kane@kirkland.com
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, New York 10022
`Tel.: (212) 446-4800
`Fax: (212) 446-4900
`
`Dated: October 26, 2012
`
`
`
`
`
`
`
`1
`
`ION 1018
`
`

`

`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 20 of 30
`
`
`
`proposition that “a party prevailing on an issue of claim construction cannot argue for a differing
`
`claim construction following an adverse jury verdict.” Cordis, 658 F.3d at 1355; see also
`
`Fenner, 632 F. Supp. 2d at 638. WesternGeco prevailed at claim construction and seeks nothing
`
`new. ION, in contrast, seeks precisely what was rejected in Cordis and Fenner—to revisit a
`
`decided claim construction post-verdict. ION’s purported reliance on Central Admixture Pharm.
`
`Servs., Inc. v. Advanced Cardiac Solns., P.C., 482 F.3d 1347, 1356 (Fed. Cir. 2007) is also
`
`misplaced. Unlike the party in Central Admixture, however, WesternGeco specifically asserted
`
`that “predict” had its ordinary meaning to one of skill in the art and was not limited to future
`
`times, and accordingly, WesternGeco did not “waive” this position. Substantial evidence
`
`supports the jury’s verdict under the Court’s claim construction, and ION’s motion accordingly
`
`should be denied.
`
`C.
`
`ION Infringes Claim 15 Of The ’967 Patent
`
`Claim 15 of the ’967 patent provides:
`
`An array of seismic streamers towed by a towing vessel comprising: (a) a
`plurality of streamer positioning devices on or inline with each streamer, at least
`one of the streamer positioning devices having a wing; (b) a global control system
`transmitting location information to at least one local control system on the at
`least one streamer positioning device having a wing, the local control system
`adjusting the wing.
`
`(PTX 2 at Claim 15) ION contends that the “location information” limitation is not met because
`
`a reasonable juror could not conclude that the “fin angle” information sent from ION’s lateral
`
`controller to the DigiFIN units comprises “location information.” (D.I. 556 at 17–20) As an
`
`initial matter, ION is incorrect in arguing that the Lateral Controller only sends a desired fin
`
`angle to the DigiFINs. (D.I. 556 at 7, 18) ION’s user manual shows that the Lateral Controller
`
`also sends “operating mode commands” and other location information to the DigiFINs. (PTX 9
`
`at ION 15134) But in any event, WesternGeco presented substantial evidence that a commanded
`
`
`
`16
`
`2
`
`

`

`Case 4:09-cv-01827 Document 569 Filed in TXSD on 10/26/12 Page 21 of 30
`
`
`
`fin angle comprises “location information.” WesternGeco’s expert, Dr. Triantafyllou, testified
`
`that the fin angle indicates how much force is needed to keep the streamers at their target
`
`separation. (Id. at 1338:22–1339:17) ION’s engineers and product literature confirm that the
`
`commanded fin angle is based directly on the location separations between adjacent streamers.
`
`(Id. at 1488:4–25; PTX 8) The commanded fin angle accordingly provides information about
`
`location because “to find the fin angle, you have to know where you are and where you go.”
`
`(Trial Tr. at 1338:22–1339:15; see also id. 1385:22–1386:8, 1386:16–1387:17, 1393:25–
`
`1394:11) Mr. Brune, ION’s technical expert, agreed that ION’s system used location
`
`information to calculate the fin angle, which is sent to the DigiFINs in the water. (Trial Tr. at
`
`3926:10–19) This record evidence supports the verdict as well as confirms that ION literally
`
`infringes under the Court’s claim construction.
`
`To the extent that the fin angle is not literally location information, Dr. Triantafyllou also
`
`testified that the fin angle is “an equivalent concept, whether you send location or a fin
`
`calculated on location.” (See, e.g., Trial Tr. at 1463:9–22) For example, “the fin angle is a
`
`function, direct function, you can write it down as a function of the location.” Id. This is
`
`confirmed by ION’s engineering documents, which show a proportional relationship between
`
`locations and the fin angle sent to each DigiFIN. (PTX 269) To the extent the fin angle
`
`represented a specific direction, “that direction is equivalent to giving you the information and
`
`telling you to calculate it.” (Trial Tr. at 1464:17–22) Accordingly, in addition to the evidence of
`
`literal infringement discussed above, WesternGeco presented considerable evidence supporting
`
`infringement under DOE as well. Dawson, 978 F.2d at 208; see also Cummins-Allison, 2012
`
`WL 1890153 at *4.
`
`
`
`17
`
`3
`
`