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`ION Exhibit 1025
`WesternGeco’s Opening Claim Construction Brief
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` 5
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`Pages numbered 1-5
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`Ex. PGS 1025
`(EXCERPTED)
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`Protective Order Material – Subject to Protective Order
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`WESTERNGECO L.L.C.,
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`Plaintiff,
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`v.
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`ION GEOPHYSICAL CORPORATION,
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`Defendant.
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`)
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`)
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`) Civil Action No. 4:09-CV -01827
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`) Jucy Trial Demanded
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`CONFIDENTIAL INFORMATION
`FILED UNDER SEAL
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`WESTERNGECO'S OPENING CLAIM CONSTRUCTION BRIEF
`
`Lee LN Kaplan
`]kaplai1.@skv .con1
`SMYSER KAPLAN
`& VESELKA, L.L.P.
`Banlc of America Center
`700 Louisiana, Suite 2300
`Houston, TX 77002
`Tel: (713) 221-2323
`Fax: (713) 221-2320
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`Attorneys .for Plaintiff!
`Counterclaim lJefendant
`fYesternGeco L.L.C.
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`Of Counsel:
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`John M .. Desmarais, P.C.
`john .. desmarais@kirkland.com
`Timothy K. Gilman
`timothy ~gilman@kirkland,com
`Truuir Packin
`tamir.packin@kirkland.com
`Xiaoyan Zhang
`xiaoyan.zhang@kirkland.com
`AmeetModi
`ameet.modi@kirkland.com
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, New York 10022
`TeL: (212) 446-4800
`Fax_: (212) 446-4900
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`Dated: February 10,2010
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`ACCESS RESTRICTED- ATTORNEYS ONLY- USDC SDTX
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`WG-PGS00080132
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`Ex. PGS 1025
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`2
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`70:21) ION's current streamer steering devices were developed years later and do not embody
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`the '992 patent. (Ex.43 at 11:15-19; Ex.44 at ll5:21-116:2; Ex. 16 at 3)
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`·I.
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`CLAIM TERMS ARE PROPERLY CONSTRUED BASED ON THEIR
`ORDINARY MEANING IN LIGHT OF THE PATENT'S SPECIFICATION
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`"[T]hc claims of a patent define the invention to which the patentee is entitled the right to
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`exclude." Phillips v. AWJJ Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en bane). "[T]he court
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`has the power and obligation to construe as a matter of law the meaning of language used in the
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`patent claim.!' 1\rfarkman v. Vlestview lnstr. Inc.~ 52 F.3d 967,979 (Fed. Cir. 1995) (en bane).
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`The "words of a claim 'are generally given their ordinary and customary meaning' ... the
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`meaning that the term would have to a person of ordinary skill in the art in question at the time of
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`invention." Phillips, 415 F.3d at 1312-13. "Importantly, the person of ordinary skill in the art is
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`deemed to read the claim term not only in the context of the particular claim in which the
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`disputed term appears, but in the conte)'..1 of the entire patent, including the specification." Id at
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`i3 i 3. "Tne specification 'is always highly relevant to the ciaim construction analysis. Usuaiiy, it
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`is dispositive; it is the single best guide to the meaning of a disputed tem1."' ld at 1315.
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`II.
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`PROPOSED CONSTRUCTIONS FOR THE BITTLESTON PATENTS
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`(a)
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`"streamer positioning device(s)"
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`Tern1
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`WesternQet9's Proposed'.:
`cmlstructi<m · :'' · ·
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`"streamer
`1 '017-l, 3-5, 7-8, 16;
`1 positioning
`1 '967-l-9, IS;
`'607-l, 4-6, 8·9, 15; device(s}"; "the
`'520-1, 9, !&, 26.
`positioning device"
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`I a device t~.ltt controls the position cf I device(s) used. to steer/positi-on
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`a streamer as it is towed (e_g., a
`"bird")
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`Lhe stream~ both vertically and
`horizontally
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`Both parties
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`include "streamer," "positioning" and "device"
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`in their proposed
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`e-onstruc-tion. There is no contention that these ~lords have 1..-rnusual mea.flings or '""tould be
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`confusing for a jury. In such cases, claim construction "involves little more than the application
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`10
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`ACCESS RESTRICTED- ATTORNEYS ONLY- USDC SDTX
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`WG-PGS00080147
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`Ex. PGS 1025
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`3
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`of the widely accepted meaning of commonly understood words." Phillips, 415 F3d at 1314.
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`WestemGeco's proposed construction is in accord with this principle- a "streamer positioning
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`dedcc'' is "a device that controls the position of a streamer as it is tovved (e.g, a 'bird'),''
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`The ~Jledfication confrrms this ordinary meaning.
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`''Birds," "deflectors" and "steerable
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`tail buoys" are all disclosed as examples of "streamer positioning devices." (E.g., Ex. 1 at 10:23-
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`30) 4 Some of these control the lateral position of the streamer as it is towed. (Eg., id. at
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`1:24-27) Some control the vertical position.
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`(E.g., id. at 1:34-36) And some control both.
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`(E.g., id. at 3:27-29) Specifically regarding birds, the specification discloses examples that are
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`laterally steerable, vertically steerable and both. (!d. at 1:34-36, 1:47-52, 2:5-6 (citing Ex. 12 at
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`WG24354-55)) There is no requirement that a "streamer positioning device" must control both
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`laterai and vertical steering. (See Ex. 18, at 1[38; see aiso Ex. 41 at 52:19-53:2)
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`This construction is confirmed by the context of the claims. Claim I recites a "streamer
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`positioning device having a wing ... to steer the streamer positioning device laterally." (Ex. J at
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`Cl. 1) If the "streamer positioning device" were limited to vertical and horizontal steering, the
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`later limitation would be redundant. See Stumbo v. Eastman Outdoor;~ Inc., 508 F.3d 1358,
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`1362 (Fed. Cir. 2007) (rejecting a proposed construction that rendered claim terms superfluous);
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`Merck & Co., inc. v. Teva Pharms. USA, inc., 395 F.3d i 364, i 372 (Fed, Cir. 2005) ("A claim
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`construction that gives meaning to all of the terms of the claim is preferred over one that does not
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`do so!'); Phillips, 415 F.3d at 1314 ("[T]he claim in this case n:fers to 'steel baffles', which
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`srrongly implies that the term 'baffles' does not inherently mean objects made of steel.")
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`ION's proposed construction commits the "cardinal sin of claim construction" by
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`4
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`As the specifications of the Bittleston patents are largely identical, citations are made to the '017 patent for
`con~ience, To the extent any relevant differences exist, the patents are addressed separately herein,
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`ll
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`ACCESS RESTRICTED- ATTORNEYS ONLY- USDC SDTX
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`WG-PGS00080148
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`Ex. PGS 1025
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`4
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`attempting to limit the claims to a preferred embodiment. Telejlex, Inc. v. Ficosa N Am. Corp.,
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`299 F.3d 1313, 1324 (Fed Cir. 2002). As disclosed in the specification, combined vertical and
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`lateral c.ontrol is ·merely a preferred embodiment:
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`Located between the deflector 16 and the tail buoy 20 are a plurality of streamer
`positioning devices knovm as birds 18. Preferably the birds18 are both
`vertically and horizontally s'leerabte.
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`(Ex. 1, at 3:2i .. 29)5 The .Federal Circuit has !!repeatedly warned against confining the ciain1s to
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`[preferred] embodiments." Phillips, 415 F.3d at B23. "[I[t is well-settled that claims are not to
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`be confined to [a preferred] embodiment." DSW, Inc. v. Shoe Pavilion, Inc., 537 F.Jd 1342,
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`1348 (Fed. Cir. 2008). The use of "preferably" to refer to this embodiment "strongly suggests
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`that ... [it] is simply a preferred embodiment." Halliburton Energy Services, Inc. v. M-1 LLC,
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`514 F3d 1244~ 1251 (Fed. Cir. 2008).
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`Moreover, ION's proposed construction would improperly exclude from the scope of
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`"streamer positioning devices" embodiments that the Bittleston patents explicitly disclose as
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`examples of "streamer positioning devices," e.g., devices that only control lateral steering. See
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`Verizon Servs. Corp. v. Vonage Holdings Corp., 503 FJd 1295, 1305 (Fed. Cir. 2007) ("We
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`normally do not interpret claim terms in a way that excludes disclosed examples in the
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`specification.'~). For this reason as well, ION""s proposed construction is properly rejected.
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`(b)
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`"global control system"
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`a cnntrol system mat semis comma.nos to
`other devices in a system (e.g, local
`control systmns)
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`1 system that ~onit~ the. po:iti?~g or.th:
`streamers ana provH.tes tne aesnea verucru
`and horizontal forces or vertical a:nd
`horizontal positioning information to the
`local control systems
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`II
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` "giobai
`control
`? system·lt
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`I •ot7-7, s;
`'607-7, 8;
`'_967 .. 1~ 4~ 5~
`8,9, 15
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`As taught in the Bittlcs+wn patents, 'tth.c control sys'"tem for the birds 18 is distributed
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`5 Unless otherwise indicated, all emphases are added.
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`i2
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`ACCESS RESTRICTED- ATTORNEYS ONLY- USDC SDTX
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`WG-PGS00080149
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`Ex. PGS 1025
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`5
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