Case 4:09-cv-01827 Document 550 Filed in TXSD on 09/28/12 Page 1 of 35
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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,
`
`v.
`
`ION GEOPHYSICAL CORPORATION,
`FUGRO-GEOTEAM, INC., FUGRO(cid:173)
`GEOTEAM AS, FUGRO NORWAY
`MARINE SERVICES AS, FUGRO, INC.,
`FUGRO (USA), INC. and FUGRO
`GEOSERVICES, INC.,
`
`Defendants.
`
`Judge Keith P. Ellison
`
`§
`§
`§
`§
`§ CIVIL ACTION NO. 4:09-cv-01827
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`§
`§
`§
`§
`§
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`§
`§
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`JURY TRIAL DEMANDED
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`ION'S RULE 59 MOTION FOR NEW TRIAL
`ON INVALIDITY UNDER 35 U.S.C. §§ 102 and 103
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`1
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`ION 1023
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`Case 4:09-cv-01827 Document 550 Filed in TXSD on 09/28/12 Page 19 of 35
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`solution system I 0 to calculate desired changes in position of one or more of the streamer
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`positioning devices 14. Because the Workman Patent discloses all the limitations of Claim 15 of
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`the '607 Patent, Claim 15 is invalid as anticipated under 35 U.S.C. § 102. The evidence and
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`testimony in this regard is clear, convincing, and un-rebutted, and the jury's contrary conclusion
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`is against the great weight of the evidence.
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`D.
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`The '607 Patent- Claim 15 Is Obvious Based On the Combination of the Workman
`Patent and the '636 Patent Publication.
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`As explained in Section V(C) supra, the Workman Patent discloses each and every
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`limitation of claim 15 of the '607 Patent. However, to the extent there is any doubt that the
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`Workman Patent discloses limitation (c) of Claim 15, that limitation is undoubtedly disclosed in
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`the '636 Patent Publication. As explained by Mr. Brune, the Workman Patent and the '636
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`Patent Publication are in the same field, and they are both also in the same field as the '607
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`Patent. Ex. A, Tr. at 3819:21 - 3820:4. Even a cursory review of the patents confirms Mr.
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`Brune's opinion:
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`Workman Patent - "The present invention generally relates to an improved system for
`controlling the position and shape of marine seismic streamers." Ex. C, DX 266 at 5 (col.
`1, II. 6-8).
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`'636 Publication - "This invention relates to control devices for controlling the position
`of a marine seismic streamer." Ex. E, DX 18 at 3.
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`Additionally, a person of ordinary skill in the art would be motivated to combine the Workman
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`Patent and the '636 Publication. Ex. A, Tr. at 3820:5-15.
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`Figure 2 of the '636 Publication is a detailed view of the local control system 26 that
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`resides on or near the streamer positioning device 10:
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`15
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`2
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`Case 4:09-cv-01827 Document 550 Filed in TXSD on 09/28/12 Page 20 of 35
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`Fig.2.
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`Ex. E, DX 18 at 13.
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`\~ :;-I """' 1.!!
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`The '636 Publication makes clear that the desired changes in positions of the streamer
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`positioning devices as recited in limitation (c) of the '607 Patent are calculated. For example, as
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`shown in Figure 2 above, the control system 26 comprises a microprocessor-based control circuit
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`34 having respective inputs 35 to 38 to receive control signals representative of desired depth,
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`actual depth, desired lateral position, and actual lateral position. Ex. E, DX 18 at 7; see also id.
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`at 8 ("In operation, the control circuit 34 receives between its inputs 35 and 36 a signal indicative
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`of the difference between the actual and desired depths of the bird 10, and receives between its
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`inputs 3 7 and 3 8 a signal indicative of the difference between the actual and desired lateral
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`positions ofthe birds 1 0."). The control circuit 34 uses the differences to calculate the respective
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`angular positions of the wings 24 which together will produce the lateral force (left or right)
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`required to move the bird I 0 to the desired lateral position. !d.
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`In conclusion, the Workman Patent and the '636 Publication render Claim 15 of the '607
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`Patent obvious, and thus invalid under 35 U.S.C. § I 03. The evidence and testimony in this
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`regard is clear, convincing, and un-rebutted, and the jury's contrary conclusion is against the
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`great weight ofthe evidence.
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`16
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`3
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`Case 4:09-cv-01827 Document 550 Filed in TXSD on 09/28/12 Page 21 of 35
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`E.
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`The '967 Patent- Claim 15 Is Obvious Based On the Combination of the Workman
`Patent and the '636 Publication.
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`Mr. Brune testified that, in his expert opinion, Claim 15 of the '967 Patent is obvious
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`based on the combination of the Workman Patent and the '636 Publication. See generally Brune
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`Ex. A, Tr. at 3828:14-3837:8. Claim 15 of the '967 Patent reads:
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`15.
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`An anay of seismic streamers towed by a towing vessel comprising:
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`(a)
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`(b)
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`a plurality of streamer positioning devices on or inline with each streamer,
`at least one of the streamer positioning devices having a wing;
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`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.
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`Ex. F, PX 2 at 10 (col. 12, II. 33-41).
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`The CoUit construed the following limitations of Claim 15:
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`"streamer positioning device(s)";
`"the positioning device"
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`"global control system"
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`"local control system"
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`"location information"
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`a device that controls the position
`of a streamer as it is towed (e.g., a
`"bird")
`a control system that sends
`commands to other devices in a
`system (e.g., local control systems)
`a control system located on or near
`the streamer positioning devices
`(e.g., birds)
`infotmation regarding location
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`Jury Instructions (Dkt. 530), Instruction No. 6.
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`As discussed above, the Workman Patent and the '636 Publication are analogous prior
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`art, and a person of ordinary skill in the art would be motivated to combine these references. See
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`Section V(D) supra.
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`1.
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`The Combination of the Workman Patent and the '636 Publication Discloses
`Limitation (a) of Claim 15
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`Limitation (a) of Claim 15 recites "a plurality of streamer positioning devices on or inline
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`with each streamer, at least one of the streamer positioning devices having a wing." Ex. F, PX 2
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`17
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`4
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`Case 4:09-cv-01827 Document 550 Filed in TXSD on 09/28/12 Page 22 of 35
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`at 10 (col. 12, II. 35-37). The first portion of limitation (a) relates to streamer positioning devices
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`and streamers. Figure 1 of the Workman Patent clearly and convincingly discloses "a plurality
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`of streamer positioning devices on or inline with each streamer," as required by Claim 15:
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`Fig. 1
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`Ex. C, DX 266 at 2 (emphasis added); see also id at 6 (col. 3, II. 14-21) ("streamer positioning
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`devices 14, for example birds and tail buoys, may be attached to the exterior of the streamer
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`cables !3 for adjusting the vertical and lateral positions of the streamer cables !3."); see also Ex.
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`A, Tr. at3829:!9-3830:7.
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`The second portion of limitation (a) requires that the streamer positioning devices have
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`wings, which is disclosed in the '636 Publication:
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`12
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`QUICK RElEASE
`AlTACHMENT
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`Ex. E, DX 18 at 12; see also Ex. A, Tr. at 3830:12-3831:2. As the text of the '636 Publication
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`makes clear, "[i]n its preferred form, the bird [10] has two opposed wings (24) .... " Ex. E, DX
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`18 at 1. Therefore, the combination of the Workman Patent and the '636 Publication clearly and
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`convincingly discloses limitation (a) of Claim 15.
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`!8
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`5
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`Case 4:09-cv-01827 Document 550 Filed in TXSD on 09/28/12 Page 23 of 35
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`2.
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`The Combination of the Workman Patent and the '636 Pnblication Discloses
`Limitation (b) of Claim 15
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`Limitation (b) of Claim 15 recites "a global control system transmitting location
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`information to at least one local control system on the at least one streamer positioning device
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`having a wing, the local control system adjusting the wing." Ex. F, PX 2 at 10 (col. 12, ll. 38-
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`41 ). This can be broken down into several sub-limitations: (1) a global control system; (2) a
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`local control system; (3) transmitting location information from the global control system to the
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`local control system; and ( 4) the local control system adjusting the wing.
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`The Court construed "global control system" to mean "a control system that sends
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`commands to other devices in a system (e.g., local control systems)." Jury Instructions (Dkt.
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`530), Instruction No. 6. The Workman Patent discloses a control system that sends commands to
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`other devices in a system. The text of the Workman Patent also describes the positioning
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`commands being sent from streamer control processor 40 to streamer device controller 16, as
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`well as the subsequent the adjustment and repositioning commands sent to the streamer
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`positioning devices 14:
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`The streamer control processor 40 evaluates these real time signals and the
`threshold parameters from the terminal 32 to determine when the streamer cables
`13 need to be repositioned and to calculate the position correction required to
`keep the streamer cables 13 within the threshold parameters. The streamer control
`processor 40 is connected to the streamer device controller 16. When the streamer
`cables 13 need to be repositioned, the position correction is used by the streamer
`device controller 16 to adjust the streamer positioning devices 14 and reposition
`the streamer cables 13.
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`Ex. C, DX 266 at 6 (col. 4, ll. 12-21); see also Ex. A, Tr. at 3831:6- 3832:21. Therefore, the
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`Workman Patent clearly and convincingly discloses the claimed "global control system."
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`The Court constmed "local control system" to mean "a control system located on or near
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`the streamer positioning devices (e.g., birds)." Jury Instructions (Dkt. 530), Instruction No. 6.
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`19
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`6
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