`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`WESTERNGECO L.L.C.,
`
`Plaintiff,
`
`v.
`
`)
`)
`)
`)
`)
`) Civil Action No. 4:09-CV-01827
`)
`) Judge Keith P. Ellison
`)
`) Jury Trial Demanded
`)
`)
`)
`)
`- - - - - - - - - - - - - - - - - - - )
`
`ION GEOPHYSICAL CORPORATION,
`
`Defendant.
`
`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
`
`Dated: October 26, 2012
`
`1
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`ION 1027
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`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 6 of 31
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`majority of ION's other invalidity defenses were dismissed as a matter of law at trial. (D.I. 533)
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`On August 16, 2012 the jury returned a verdict in WesternGeco' s favor on all remaining issues,
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`finding all of the asserted patent claims willfully infringed, not anticipated and not obvious, and
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`awarding WesternGeco $105.9 million in damages for ION's past infringement. (D.I. 536)
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`BACKGROUND
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`Marine seismic streamers are cables up to many miles in length that are towed behind
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`ships. (Trial Tr. at 248:25-253: 17) An acoustic source, such as an air gun, is used to generate
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`an acoustic signal towards the ocean floor. Id. Seismic sensors, such as hydrophones, are spaced
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`along the length of each streamer and are used to detect the reflected acoustic signal. Id. The
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`resulting data can be used to map the subsurface geology for the purpose of exploring,
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`exploiting, and managing natural resources of the seabed and subsoil. I d.
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`In 1992, Dr. Simon Bittleston began developing methods and systems for lateral streamer
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`steering for Geco-Prakla, AS ("Geco"), a predecessor to WesternGeco.
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`(Trial Tr. at 497:12-
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`501:10, 518:13-519:22, 521:2-527:13)
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`For example, Dr. Bittleston invented a streamer
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`positioning device, or "bird," to steer the streamer both laterally and in depth, as reflected in his
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`December 20, 1996 patent application. (ION 18, the '"636 application")
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`In order to implement a workable steering system, Dr. Bittleston also recognized the need
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`for sophisticated control systems for steering across the miles-long streamer array. (Trial Tr. at
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`509:11-517:7, 532:19-534:3, 536:5-539:23) As Dr. Bittleston explained at trial, this was akin to
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`trying to steer 200 separate airplanes on auto-pilot simultaneously, while dealing with the
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`unpredictable forces of currents and waves in the deepwater ocean and in light of the many
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`millions of dollars of equipment that could be destroyed or lost with any error. (I d. at 497:12-
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`501:10, 507:11-508:3) Working with Oyvind Hillesund, another Geco engineer, Dr. Bittleston's
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`research led to the International Patent Application WO 00/20895 (ION 19, the "'895
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`2
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`2
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`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 10 of 31
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`the Zajac '038 patent-ION's invalidity arguments were thoroughly vetted and dismissed by the
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`PTO before granting the '038 patent.
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`A. Workman Does Not Teach or Enable Lateral Steering or the "Streamer
`Positioning Devices" Claimed in the Bittleston Patents
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`The Court construed "streamer positioning device" to mean "a device that controls the
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`position of a streamer as it is towed (e.g., a 'bird')," noting evidence that "each streamer-
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`positioning device must be capable of steering horizontally." (D.I. 120 at 14) Workman does
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`not enable such laterally steerable streamer positioning devices-or any lateral steering
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`technology-and therefore cannot anticipate any of the Bittleston patent claims. The Workman
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`patent-now owned by WesternGeco-stems from the work of Rick Workman at Western
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`Geophysical in the 1990s before it merged with Geco in 2000 to form WesternGeco. As
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`confirmed by multiple co-workers of Mr. Workman from this time-including ION trial witness
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`Kenneth Williamson-Western Geophysical in general, and Mr. Workman in particular, never
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`worked on or invented any lateral steering technology. (See, e.g., Trial Tr. at 289:20-291:12,
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`838:7-9,4014:20-4015:6, 4110:15-23).
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`Rather, Workman focused on noise thresholds that affect the acoustic signals used to map
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`subsurface formations.
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`(ION 266 at 4:37-40 ("[T]he present invention controls the use of
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`position correction by determining when the hydrophone noise level should prevent the
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`repositioning of the streamer cable."); see also id. at 4:61-5:31 (discussing noise thresholds))
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`ION's expert, Mr. Brune confitmed this fact.
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`(Id. at 3949:23-24 ("Q. The key focus of the
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`Workman patent is noise reduction? A. Correct.")) As he admitted on cross-examination,
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`Workman "basically presupposes that there is a working steering system" already in place.
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`(Trial Tr. at 3950:15-19; see also id. at 3950:22-3951:5) 1 The mere reference to "lateral
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`Unless otherwise indicated, all emphases are added.
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`6
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`3
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`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 11 of 31
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`steering" is insufficient to enable one of ordinary skill in the art to actually practice lateral
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`steering. Id. at 3949:4-8 ("Q. You would agree, sir, that just mentioning lateral steering in a
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`reference does not anticipate the claims in this case, correct? A. The mere mention of it, without
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`some disclosure at some level of detail, certainly would not."); see also Impax Labs., 545 F.3d at
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`1314 (stating that an anticipatory reference must "enable one of ordinary skill in the art to make
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`the invention without undue experimentation").
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`Accordingly, Mr. Workman's '472 patent cannot anticipate WesternGeco's lateral
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`steering inventions, because Workman never invented or enabled such technology. See Forest
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`Labs., Inc. v. Ivax Pharms., Inc., 501 F.3d 1263, 1268 (Fed. Cir. 2007) ("A reference that is not
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`enabling is not anticipating."); Elan Pharms., Inc. v. Mayo Found. forMed. Educ. & Research,
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`346 F.3d 1051, 1055 (Fed. Cir. 2003) ("The disclosure in an assertedly anticipating reference
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`must be adequate to enable possession of the desired subject matter); Fiers v. Revel, 984 F.2d
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`1164 (Fed. Cir. 1993) ("[O]ne cannot describe what one has not conceived.").
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`Although Workman
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`includes references
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`to "streamer positioning devices,"
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`the
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`specification makes clear that the term largely refers to depth control devices whose noise can
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`affect the seismic survey:
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`The use of streamer positioning devices comes at the price of introducing
`increased noise onto the seismic streamer and hence into the hydrophones. The
`areas of greatest noise are from those hydrophones which are adjacent to
`externally attached streamer positioning devices, such as depth controlling birds.
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`(ION 266 at 1 :62-67) Such depth birds do not satisfy the horizontal steering required by the term
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`"streamer positioning devices" as used in the Bittleston patents. (D.I. 120 at 14)
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`At most, Workman discloses only two devices in its discussion of lateral positions-
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`Waters '278 and Owsley '027, neither of which were ever built, or would work in the invention
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`claimed in the '520 patent. As Mr. Brune admitted, the Waters '278 device was described in
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`7
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`4
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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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`11
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`5
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`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 16 of 31
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`horizontally. (See Argument § I.A, supra; D.l. 120 at 14) Workman does not teach and enable
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`all of the claim limitations of Claim 15 of the '607 patent, and therefore cannot anticipate as a
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`matter of law. Sanoji, 550 F.3d at 1082.
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`Notably, Mr. Brune also did not discuss whether or not Workman met the separate claim
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`limitations of a "prediction unit" and "control unit" in his testimony.
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`(Trial Tr. at 3979:21-
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`3980:13 ("I didn't talk about that in detail, no.")2
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`; Id. at 3982:23-3983:3 ("Q. [Y]ou never looked
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`at or analyzed in your presentation the specific pieces of Claim 15, did you? A. No, I did not.").
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`If anything, ION's failure to offer any evidence or testimony that Workman discloses all of the
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`limitations of Claim 15 warrants judgment as a matter of law against ION's defense. Sanoji, 550
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`F.3d at 1082. ION was unable to present sufficient evidence for a jury to properly find in its
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`favor. On ION's post-trial motion, where it seeks to reverse a jury verdict of validity, ION's
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`shortcomings doom its motion to failure.
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`D.
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`The '895 Application Does Not Anticipate Claim 14 of the '038 Patent
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`The '895 application is the original application that led to the Bittleston patents-in-suit.
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`As discussed above, the Zajac '038 patent built on this foundation and invented a system to
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`repeat surveys over time to produce 4D images.
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`It was undisputed at trial that the '895
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`application did not disclose the 4D inventions of the Zajac '038 patent. The jury's verdict to that
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`2
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`ION argues that because the Bittleston patents recite "parallel method and apparatus
`claims," Mr. Brune merely addressed the method claims and conclusorily imported those
`(D.I. 550 at 6 n.l) But for the '607 patent, the asserted
`analyses for the apparatus claims.
`apparatus Claim 15 recites a limitation-the prediction unit-absent from method Claim 1 and
`therefore never addressed by Mr. Brune. Additionally, Workman fails to disclose or enable the
`required "prediction unit" or "to use the predicted positions to calculate desired changes in
`positions." Although ION points to Workman's vague recitation of a "Kalman filter," no
`disclosure exists as to what type of Kalman filter is intended, what measurements it receives, or
`what, if any, prediction it performs. And even if a predicted position had been disclosed,
`Workman fails to teach how that prediction would be used to calculate positioning commands as
`required by Claim 15 of the '607 patent.
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`6
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`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 22 of 31
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`failure of the prior art to disclose the claimed inventions, whether the prior art taught away from
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`the claimed inventions and whether secondary considerations confirm the non-obviousness ofthe
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`inventions-must be accepted based on the record evidence.
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`B.
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`Claim 15 of the '607 Patent is Not Obvious
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`As discussed above, the Workman reference fails to enable any lateral steering, the
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`claimed "streamer positioning device," "prediction unit," or using predicted positions to
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`calculate steering commands. ION's attempts to ameliorate these shortcomings by meshing the
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`Workman reference with the '636 application fail to prove invalidity, as found by both the PTO,
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`which considered both pieces of art before allowing the '607 patent to issue, and the jury, which
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`rejected ION's defense in its verdict. ION fails to explain how the combination could disclose
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`and enable all of these limitations, how the differing approaches of Workman and Bittleston's
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`'636 application would be harmonized, or why the secondary considerations of non-obviousness
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`should have been ignored by the jury. Ample evidence supports the jury's verdict that Claim 15
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`of the '607 patent is not rendered obvious over the combination of Workman and the '636
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`application, and ION's motion is properly denied.
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`Claim 15 of the '607 patent requires "a control unit adapted to use the predicted
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`positions." Mr. Brune admitted that the '636 application does not disclose such a control unit.
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`(Trial Tr. at 3982:16-22 ("Q. The '636 application that you rely on has localized control on each
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`bird, correct? A. It has a local control unit on or near the individual birds. Q. That's different
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`than what we see in [claim element] 15C, isn't it? A. Yeah, I believe so. That's -- this control
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`unit is referring to what would be onboard."); id. at 3978:25-3979:4 ("Q. Sir, the '636 discussion
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`that is in the actual '607 patent distinguishes the '607 work from '636 by describing that as
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`having a local control system within the birds to adjust wing angles. Do you see that? A. Yes, I
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`do."). Thus, neither the '636 application nor the Workman reference teaches the requisite
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`18
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`7
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`Case 4:09-cv-01827 Document 574 Filed in TXSD on 10/26/12 Page 23 of 31
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`prediction claimed in the '607 patent, and ION's obviousness defense fails as a matter of law, let
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`alone was properly rejected by the jury on this record. Sanofi, 550 F.3d at 1 085-86; In re Kumar,
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`418 F.3d at 1369.
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`As Mr. Brune admitted, the approach of the '636 application specifically teaches away
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`from the inventive control system of the Bittleston '607 patent, whose specification notes that
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`"while this ['636] type of system allows for more automatic adjustment of the bird wing angles,
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`the delay period and the relatively long cycle time between position measurements, prevents this
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`type of control system from rapidly and efficiently controlling the horizontal position of the
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`bird." (PTX 3 at 2:38-43; Trial Tr. at 3977:8-14; see also Trial Tr. at 3978:4-7 ("Q. And the
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`'607 patent talks about the ['636 application] and says it works differently than the '607 patent,
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`fair? A. Yes."). As distinguished in the '607 patent, the '636 application uses actual
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`measurements rather than the position prediction taught and claimed by the '607 patent. To the
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`extent that Workman's vague reference to a Kalman filter comprises a disclosure of"prediction,"
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`it teaches away from the "actual measurement" approach of the '63 6 application, rendering
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`ION's proposed combination improper. See Tee Air, Inc. v. Denso Mfg. Michigan Inc., 192 F.3d
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`1353, 1360 (Fed. Cir. 1999) ("There is no suggestion to combine, however, if a reference teaches
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`away from its combination with another source"). Workman offers no explanation why
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`"prediction" would be beneficial over the "actual measurement" approach of the '636 patent, and
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`no credible record evidence exists regarding how this tension between approaches would be
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`resolved by a person of ordinary skill in the art, let alone resolved in a manner so as to arrive at
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`the invention of the '607 patent.
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`Moreover, no record evidence exists that a person of ordinary skill in the art would have
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`"selected and combined [the] prior art elements [i.e., those in Workman and the '63 6 application]
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`19
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`8
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