Case 4:09-cv-01827 Document 6 Filed in TXSD on 06/16/09 Page 1 of 24
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`§§
`
`§§
`
`§ CiVIL ACTION NO. 4:09-cv-01827
`§
`
`§§
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`§ JURY TRIAL DEMANDED
`
`WESTERNGECO LLC.,
`
`Plaintiff,
`
`V.
`
`ION GEOPHYSICAL CORPORATION,
`
`Defendant.
`
`ION GEOPHYSICAL CORPORATION’S ANSWER, AFFIRMATIVE DEFENSES,
`AND COUNTERCLAIMS TO WESTERNGECO L.L.C.’S
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Defendant
`
`ION Geophysical Corporation (“ION Geophysical”)
`
`files this Answer,
`
`Affirmative Defenses, and Counterclaims in response to WesternGeco L.L,C.’s Complaint (the
`
`“Complaint”), and in support thereof would respectfully show the Court the following:
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`ANSWER
`
`1.
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`ION Geophysical lacks information sufficient to admit or deny the allegations of
`
`Paragraph 1 of the Complaint and on that basis denies them.
`
`2.
`
`3.
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`ION Geophysical admits the allegations of Paragraph 2 of the Complaint.
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`ION Geophysical admits that the Complaint attempts to allege causes of action for
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`infringement of certain patents, as stated in Paragraph 3 of the Complaint, but ION Geophysical
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`denies all such allegations.
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`4.
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`ION Geophysical admits that the Court has jurisdiction over this case as alleged
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`in Paragraph 4 of the Complaint.
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`5.
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`6.
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`ION Geophysical admits the allegations of Paragraph 5 of the Complaint.
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`ION Geophysical admits the allegations of Paragraph 6 of the Complaint.
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`WesternGeco Ex. 2004, pg. 1
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`7.
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`ION Geophysical admits that the ‘038 Patent was issued on February 10, 2004, as
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`alleged in the first sentence of Paragraph 7 of the Complaint.
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`ION Geophysical denies that the
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`‘038 Patent was “duly and legally issued to WesternGeco” as further alleged in the first sentence
`
`of Paragraph 7 of the Complaint, ION Geophysical lacks information sufficient to admit or deny
`
`the allegations of the second sentence of Paragraph 7 of the Complaint and on that basis denies
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`them.
`
`ION Geophysical admits the allegations made in the third sentence of Paragraph 7 of the
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`Complaint.
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`8.
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`ION Geophysical admits that the ‘017 Patent was issued on August 23, 2005, as
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`alleged in the first sentence of Paragraph 8 of the Complaint.
`
`ION Geophysical denies that the
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`‘017 Patent was “duly and legally issued to WesternGeco” as further alleged in the first sentence
`
`of Paragraph 8 of the Complaint. ION Geophysical lacks information sufficient to admit or deny
`
`the allegations of the second sentence of Paragraph 8 of the Complaint and on that basis denies
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`them.
`
`ION Geophysical admits the allegations made in the third sentence of Paragraph 8 of the
`
`Complaint.
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`9.
`
`ION Geophysical admits that the ‘607 Patent was issued on July 25, 2006, as
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`alleged in the first sentence of Paragraph 9 of the Complaint.
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`ION Geophysical denies that the
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`‘607 Patent was “duly and legally issued to WesternGeco” as further alleged in the first sentence
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`of Paragraph 9 of the Complaint.
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`ION Geophysical lacks information sufficient to admit or deny
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`the allegations of the second sentence of Paragraph 9 of the Complaint and on that basis denies
`
`them.
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`ION Geophysical admits the allegations made in the third sentence of Paragraph 9 of the
`
`Complaint.
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`10.
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`ION Geophysical admits that the ‘967 Patent was issued on January 16, 2007, as
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`alleged in the first sentence of Paragraph 10 of the Complaint.
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`ION Geophysical denies that the
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`2
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`WesternGeco Ex. 2004, pg. 2
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`‘967 Patent was “duly and legally issued to WestemGeco” as further alleged in the first sentence
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`of Paragraph 10 of the Complaint,
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`ION Geophysical lacks information sufficient to admit or
`
`deny the allegations of the second sentence of Paragraph 10 of the Complaint and on that basis
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`denies them.
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`ION Geophysical admits the allegations made in the third sentence of Paragraph 10
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`of the Complaint.
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`11.
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`ION Geophysical admits that the ‘520 Patent was issued on November 13, 2007,
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`as alleged in the first sentence of Paragraph 11 of the Complaint.
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`ION Geophysical denies that
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`the ‘520 Patent was “duly and legally issued to WestemGeco” as further alleged in the first
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`sentence of Paragraph 11 of the Complaint.
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`ION Geophysical lacks information sufficient to
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`admit or deny the allegations of the second sentence of Paragraph 11 of the Complaint and on
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`that basis denies them.
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`ION Geophysical admits the allegations made in the third sentence of
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`Paragraph 11 of the Complaint.
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`12.
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`13.
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`14.
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`15.
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`Paragraph 12 of the Complaint contains a legal conclusion requiring no response.
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`ION Geophysical denies the allegations made in Paragraph 13 of the Complaint.
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`ION Geophysical admits the allegations made in Paragraph 14 of the Complaint.
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`ION Geophysical lacks information sufficient to admit or deny the allegations of
`
`Paragraph 15 of the Complaint and on that basis denies them.
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`16.
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`17.
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`18.
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`19.
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`20.
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`ION Geophysical denies the allegations made in Paragraph 16 of the Complaint.
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`ION Geophysical denies the allegations made in Paragraph 17 of the Complaint.
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`Paragraph 18 of the Complaint contains a legal conclusion requiring no response.
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`ION Geophysical denies the allegations made in Paragraph 19 of the Complaint.
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`ION Geophysical admits the allegations made in Paragraph 20 of the Complaint.
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`3
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`WesternGeco Ex. 2004, pg. 3
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`21.
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`ION Geophysical lacks information sufficient to admit or deny the allegations of
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`Paragraph 21 of the Complaint and on that basis denies them.
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`22.
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`23.
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`24.
`
`25.
`
`26.
`
`27.
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`ION Geophysical denies the allegations made in Paragraph 22 of the Complaint.
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`ION Geophysical denies the allegations made in Paragraph 23 of the Complaint.
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`Paragraph 24 of the Complaint contains a legal conclusion requiring no response.
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`ION Geophysical denies the allegations made in Paragraph 25 of the Complaint.
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`ION Geophysical admits the allegations made in Paragraph 26 of the Complaint.
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`ION Geophysical lacks information sufficient to admit or deny the allegations of
`
`Paragraph 27 of the Complaint and on that basis denies them.
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`28.
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`29.
`
`30.
`
`31.
`
`32.
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`33.
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`ION Geophysical denies the allegations made in Paragraph 28 of the Complaint.
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`ION Geophysical denies the allegations made in Paragraph 29 of the Complaint.
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`Paragraph 30 of the Complaint contains a legal conclusion requiring no response.
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`ION Geophysical denies the allegations made in Paragraph 31 of the Complaint.
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`ION Geophysical admits the allegations made in Paragraph 32 of the Complaint.
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`ION Geophysical lacks information sufficient to admit or deny the allegations of
`
`Paragraph 33 of the Complaint and on that basis denies them.
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`34.
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`35.
`
`36.
`
`37.
`
`38.
`
`39.
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`ION Geophysical denies the allegations made in Paragraph 34 of the Complaint.
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`ION Geophysical denies the allegations made in Paragraph 35 of the Complaint.
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`Paragraph 36 of the Complaint contains a legal conclusion requiring no response.
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`ION Geophysical denies the allegations made in Paragraph 37 of the Complaint.
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`ION Geophysical admits the allegations made in Paragraph 38 of the Complaint.
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`ION Geophysical lacks information sufficient to admit or deny the allegations of
`
`Paragraph 39 of the Complaint and on that basis denies them.
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`4
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`WesternGeco Ex. 2004, pg. 4
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`ION Geophysical denies the allegations made in Paragraph 40 of the Complaint.
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`ION Geophysical denies the allegations made in Paragraph 41 of the Complaint.
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`All allegations made in the Complaint which are not specifically admitted herein
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`40.
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`41,
`
`42.
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`are denied.
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`AFFIRMATIVE DEFENSES
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`43.
`
`ION Geophysical asserts the following affirmative defenses to Plaintiff’s claims
`
`for patent infringement. The assertion of an affirmative defense is not a concession that ION
`
`Geophysical has the burden of proving the matter asserted:
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`First Affirmative Defense
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`44.
`
`The ‘038 Patent, the ‘017 Patent, the ‘607 Patent, the ‘967 Patent, or the ‘520
`
`Patent
`
`(collectively,
`
`the “Patents”), are invalid for failure to comply with or satisfy the
`
`requirements and/or conditions of patentability as specified under one or more sections of Title
`
`35 of the United States Code, including, without limitation, 35 U.S.C. § 101, 102, 103, or 112,
`
`or the Patents are unenforceable. ION Geophysical reserves the right to assert any other basis for
`
`invalidity or unenforceability, or any other defense, that discovery may reveal.
`
`Second Affirmative Defense
`
`45.
`
`Plaintiff’s claims for relief and prayer for damages are barred, in whole or in part,
`
`by 35 U.S.C. § 287.
`
`Third Affirmative Defense
`
`46.
`
`Plaintiff is estopped from construing the claims of the Patents in such a way as
`
`may cover any ION Geophysical product or process by reasons of statements made to the United
`
`States Patent and Trademark Office (“PTO”) during the prosecution of the applications that led
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`to the issuance of the Patents.
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`5
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`WesternGeco Ex. 2004, pg. 5
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`Fourth Affirmative Defense
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`47.
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`The ‘017 Patent, the ‘607 Patent, the ‘967 Patent and the ‘520 Patent (collectively
`
`the “Bittleston Patents”) are invalid or unenforceable because they were procured through
`
`inequitable conduct before the PTO. The Bittleston Patents all derive from or are continuations
`
`of Application No. 09/787,723. Each of the claims of each of the Bittleston Patents requires a
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`device which controls, or describes a method of controlling, the position of a marine seismic
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`streamer.
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`48.
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`Marine seismic streamers are long cables which are towed behind ships in an
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`array of 5-20 streamers which, ideally, maintain a parallel relationship to one another. On each
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`streamer, there are a number of hydrophones which collect acoustic data reflected from the
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`subsurface of the ocean from acoustic signals typically produced by air guns near the ships. The
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`collected data is processed to yield an image of the subsurface geology which is used in
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`hydrocarbon exploration. For many seismic studies, it is important that the streamers be located
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`at a specific depth and lateral position with respect to each other.
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`49.
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`During a series of meetings and communications which took place beginning in
`
`1995, Simon Bittleston, a named inventor on all of the Bittleston Patents, was shown a device
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`which had been invented and prototyped by DigiCOURSE, Inc., a company later acquired by
`
`ION Geophysical. This device was designed to provide precise vertical and lateral steering of a
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`marine seismic streamer. One embodiment of the devices demonstrated to Bittleston had two
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`wings, each with a separate axis, with both wings being rotatable about that axis to impart both
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`vertical and/or horizontal forces to the seismic streamer. The meetings between DigiCOURSE
`
`and Mr. Bittleston took place pursuant to a Confidential Disclosure Agreement dated April 25,
`
`1995 between DigiCOURSE and Bittleston’s
`
`employer, GECO A.S.
`
`(WestemGeco’s
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`6
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`WesternGeco Ex. 2004, pg. 6
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`predecessor). This DigiCOURSE device was prior art to Bittleston’s claimed invention in the
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`Bittleston Patents, Either l3ittleston and/or the patent attorney prosecuting the patent application
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`which led to the Bittleston Patents intentionally and deliberately withheld the DigiCOURSE
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`prior art from the PTO contrary to the duty of full disclosure.
`
`50.
`
`In addition, the currently named inventors and/or the attorneys prosecuting the
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`patent applications for the Bittleston Patents intentionally and with deceptive intent failed to
`
`identify Andre W. Olivier, Robert E. Rouquette and Brien G. Rau, the DigiCOURSE engineers
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`who developed the seismic cable steering device, as named inventors.
`
`51.
`
`In addition to WesternOeco ‘ s
`
`inequitable conduct
`
`in the procurement of the
`
`Bittleston Patents, WesternGeco also procured the ‘038 Patent
`
`through inequitable conduct
`
`before the PTO. During the prosecution of the ‘038 Patent,
`
`the patent examiner cited the
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`Hillesund reference (WO 00/20895), an international patent application published on April 13,
`
`2000 under the Patent Cooperation Treaty, against the ‘038 Patent application. The attorney
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`prosecuting the ‘038 Patent responded to the PTO by stating that the Hillesund reference “does
`
`not disclose positioning a streamer vertically and horizontally relative to a second streamer in the
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`array, as claimed. Hillesund teaches only horizontal steering (p. 6, line 20) of the streamers.
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`Vertical position is monitored but not steered as described in Hillesund on p. 8, 11. 6-10, .
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`. the
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`.
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`global control system 22 will typically acquire the following .
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`.
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`the location of the birds in the
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`horizontal plane. .
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`. Thus, Hillesund does not anticipate Claim 1.”
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`.
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`52.
`
`This argument was convincing to the patent examiner, who allowed the issuance
`
`of the ‘038 Patent despite the existence of the Hillesund reference. The prosecuting attorney’s
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`argument, however, was a blatant misrepresentation of the teachings of Hillesund. For example,
`
`in the first paragraph on page 6 of Hillesund, Hillesund discloses that “preferably, the birds are
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`7
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`both vertically and horizontally steerable.. .
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`. The vertically and horizontally steerable birds 18
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`can be used to constrain the shape of the seismic streamer 12 between the deflector 16 and the
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`tail buoy in both vertical [depth] and horizontal directions.” The reference goes on to disclose on
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`page 10 in the second paragraph: “[T]he bird 18 uses two wings 28 to produce the horizontal
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`and vertical forces on the streamer.” Clearly, the Hillesund reference discloses vertical steering
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`of the streamers, and had the attorney prosecuting the ‘038 Patent properly disclosed this, the
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`‘038 Patent would not have issued.
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`Fifth Affirmative Defense
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`53.
`
`Plaintiff’s claims for relief and prayer for damages are barred in whole or in part
`
`by the equitable doctrines of laches, waiver and equitable estoppel.
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`Sixth Affirmative Defense
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`54.
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`Plaintiff’s claims for relief and prayer for damages are barred under the equitable
`
`doctrine of unclean hands.
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`Seventh Affirmative Defense
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`55.
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`Plaintiff has failed to state a claim upon which relief maybe granted.
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`COUNTERCLAIMS
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`56.
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`ION Geophysical brings the following counterclaims against Plaintiff:
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`Jurisdiction And Venue
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`57.
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`This is an action for declaratory relief. This Court has jurisdiction over the
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`counterclaim based on28 U.S.C. § 1331, 1338(a), 2201, and 2202.
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`58.
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`Venue is proper under 28 U.S.C. §sS 139 1(b) and 1400(b).
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`8
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`WesternGeco Ex. 2004, pg. 8
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`Parties
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`59.
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`ION Geophysical is a corporation organized and existing under the laws of the
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`state of Delaware with a principal place of business at 2105 CityWest Boulevard, Suite 400,
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`Houston, Texas 77042-2839.
`
`60.
`
`On information and belief, WesternGeco L.L.C. (“WesternGeco”) is a corporation
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`organized and existing under the laws of the state of Delaware with a principal place of business
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`at 10001 Richmond Avenue, Houston, Texas 77042-4299.
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`61. WestemGeco has submitted itself to the personal jurisdiction of this Court by
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`filing its Complaint in this Court alleging infringement of the Patents and has likewise conceded
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`that venue here is proper for the resolution of claims such as ION Geophysical’s counterclaims.
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`First Counterclaim — Declaratory Judgment (Non-Infringement)
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`62.
`
`ION Geophysical repeats and realleges each and every allegation contained in
`
`Paragraphs 56 - 61 of the Counterclaims as if fully set forth herein.
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`63.
`
`WesternGeco alleges ownership of the Patents, and has brought suit against ION
`
`Geophysical alleging infringement of the Patents.
`
`64.
`
`ION Geophysical has not and does not infringe the Patents, either directly or
`
`indirectly, literally or under the doctrine of equivalents. ION Geophysical has not contributed to
`
`any infringement by others or induced others to infringe the Patents.
`
`65.
`
`An actual case or controversy exists between ION Geophysical and WestemGeco
`
`based on WesternGeco having filed a Complaint against ION Geophysical alleging infringement
`
`of the Patents.
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`66.
`
`ION Geophysical has been injured and damaged by WestemGeco having filed a
`
`Complaint asserting Patents that are not infringed by ION Geophysical.
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`9
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`67,
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`Declaratory relief is appropriate and necessary to establish that ION Geophysical
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`does not infringe the Patents.
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`Second Counterclaim — Declaratory Judgment (Invalidity)
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`68.
`
`ION Geophysical repeats and realleges each and every allegation contained in
`
`Paragraphs 56 — 67 of the Counterclaims as if fully set forth herein.
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`69. WestemGeco alleges ownership of the Patents, and has brought suit against ION
`
`Geophysical alleging infringement of the Patents.
`
`70.
`
`ION Geophysical alleges that one or more claims of each of the Patents are
`
`invalid and/or unenforceable for failing to comply with one or more provisions of the patent
`
`laws, 35 U.S.C. § 1 et seq., including but not limited to 35 U.S.C. §S 101, 102, 103 and 112 or is
`
`unenforceable.
`
`71.
`
`An actual case or controversy exists between ION Geophysical and WesternGeco
`
`based on WestemGeco having filed a Complaint against ION Geophysical alleging infringement
`
`of the Patents.
`
`72.
`
`ION Geophysical has been injured and damaged by WesternGeco filing a
`
`Complaint asserting patent infringement against ION Geophysical based on patents that are
`
`invalid.
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`73.
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`Declaratory relief is both appropriate and necessary to establish that each of the
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`Patents are invalid and/or unenforceable, and thus cannot be asserted against ION Geophysical.
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`Third Counterclaim — Declaratory Judgment (Prosecution History Estoppel)
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`74.
`
`ION Geophysical repeats and realleges each and every allegation contained in
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`Paragraphs 56 -73 of the Counterclaims as if fully set forth herein.
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`10
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`WesternGeco Ex. 2004, pg. 10
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`75.
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`WesternGeco alleges ownership of the Patents, and has brought suit against ION
`
`Geophysical alleging infringement of the Patents.
`
`76.
`
`By reason of the prior art limitations and the claims of the Patents, the claims of
`
`the Patents are limited in scope and WesternGeco is estopped from maintaining that any product
`
`manufactured, used, sold, offered for sale, or leased by ION Geophysical or any use to which
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`those products may be put constitutes infringement of any of the claims of the Patents.
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`77.
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`An actual case or controversy exists between ION Geophysical and WesternGeco
`
`based on WesternGeco having filed a complaint against ION Geophysical alleging infringement
`
`of the Patents.
`
`78.
`
`ION Geophysical has been injured and damaged by WesternGeco filing a
`
`complaint asserting patent infringement against ION Geophysical based on Patents that may not
`
`be construed in such a way to find infringement or inducement
`
`to infringe against ION
`
`Geophysical.
`
`79.
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`Declaratory relief is both appropriate and necessary to establish that the Patents
`
`may not be construed in such a way that they may be asserted against ION Geophysical.
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`Fourth Counterclaim — Tortious Interference with Contract and
`Prospective Business Relations
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`80.
`
`ION Geophysical repeats and realleges each and every allegation contained in
`
`Paragraphs 56-79 of the Counterclaims as if fully set forth herein.
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`81.
`
`Based upon information and belief, ION Geophysical has learned that at the 2008
`
`Society of Exploration Geophysicists (“SEG”) Convention held in Houston, Texas, one or more
`
`of WestemGeco’s executives made assertions to ION Geophysical’s customers and potential
`
`customers that ION products and the use of ION products infringe WesternGeco patents. At the
`
`time, no specific patents were identified to customers. During and after the SEG convention,
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`11
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`certain customers and potential customers raised concerns with ION Geophysical that if they
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`were to purchase or use ION products, they might be sued or found liable for infringement of
`
`WesternGeco patents.
`
`82.
`
`In late 2008/early 2009, ION Geophysical received information from a customer
`
`that WesternGeco had specifically identified certain U.S. Patents in connection with its threats of
`
`infringement. Among the patents identified were the Patents subject of this suit. As more fully
`
`described above, each of the Patents is not infringed, or is either invalid and/or unenforceable.
`
`83.
`
`WesternGeco ‘ s threats to ION Geophysical’s customers and potential customers
`
`were made for the express purpose of inducing those customers and potential customers to use
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`WestemGeco’s “Q-Marine” system instead of ION Geophysical products.
`
`84.
`
`WesternGeco’s
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`interference with the contractual and potential contractual
`
`relationships between ION Geophysical and its customers was made without privilege, and has
`
`caused damage to ION Geophysical.
`
`Fifth Counterclaim — Business Disparagement
`
`85.
`
`ION Geophysical repeats and realleges each and every allegation contained in
`
`Paragraphs 56-84 of the Counterclaims as if fully set forth herein.
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`86. WesternGeco has published disparaging statements about ION Geophysical.
`
`87.
`
`88.
`
`The disparaging statements published by WesternGeco were false.
`
`WestemGeco intentionally and maliciously published the disparaging statements.
`
`89. WesternGeco does not have and has never had any privilege to publish the
`
`disparaging statements.
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`90.
`
`ION Geophysical has suffered special damages due to WesternGeco’s intentional
`
`and malicious publishing of disparaging statements.
`
`12
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`WesternGeco Ex. 2004, pg. 12
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`Sixth Counterclaim — Breach of Contract
`
`91,
`
`ION Geophysical repeats and realleges each and every allegation contained in
`
`Paragraphs 56-90 of the Counterclaims as if fully set forth herein.
`
`92.
`
`As described above, GECO A.S.
`
`and DigiCOURSE,
`
`Inc. entered into a
`
`Confidential Disclosure Agreement (the “Agreement”) on April 25, 1995. A copy of the
`
`Agreement is attached to this pleading as Exhibit “A.” The term of the Agreement was extended
`
`from 5 to 20 years by Amendment dated December 8, 1997 (attached as Exhibit “B”). The
`
`purpose of the Agreement was to protect discussions and disclosures between the parties
`
`concerning streamer cable positioning technology.
`
`93.
`
`Following the execution of the Agreement, Simon Bittleston, one of the named
`
`inventors on four of the five patents asserted against ION Geophysical, traveled to New Orleans
`
`to meet with employees of DigiCOURSE.
`
`In connection with those meetings, Bittleston was
`
`shown working prototypes of new lateral streamer steering devices which were being developed
`
`by DigiCOURSE. One of the prototypes disclosed to Bittleston under the Agreement was an
`
`operating model of a streamer control device attached to a streamer cable with two wings
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`attached 180 degrees apart.
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`In operation,
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`the pitch of each wing could be independently
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`adjusted, i.e., the angle of each wing relative to the streamer could be different from the angle of
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`the other wing. This device enables a seismic cable to be steered both laterally and in depth.
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`Upon information and belief, GECO did not have an operational streamer steering device with
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`these capabilities at the time of the meeting.
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`94.
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`Following the meeting in New Orleans, Bittleston requested that he be sent an
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`operational model of the steering device. The device was sent to Bittleston in the fourth quarter
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`of 1995, and was never returned to DigiCOURSE. Upon information and belief, GECO took the
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`information it learned during its confidential meetings with DigiCOURSE and the device it
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`obtained from DigiCOURSE to advance its knowledge of seismic streamer steering, and used the
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`DigiCOURSE information and device as a basis for the Bittleston Patents.
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`This use of
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`DigiCOURSE information was a breach of the Agreement which has caused ION Geophysical
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`damages.
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`Seventh Counterclaim — Conversion
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`95.
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`ION Geophysical repeats and realleges each and every allegation contained in
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`Paragraphs 56-94 of the Counterclaims as if fully set forth herein.
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`96.
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`As described in Paragraphs 92-94
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`above, GECO obtained confidential
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`information and materials from DigiCOURSE relating to seismic streamer steering technology.
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`Without the knowledge or consent of DigiCOURSE, GECO misappropriated this information
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`and technology, and has
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`illegally profited from it. WesternGeco’s conduct constitutes
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`conversion which has caused ION Geophysical damages.
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`Eighth Counterclaim — Inventorship
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`97.
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`ION Geophysical repeats and realleges each and every allegation contained in
`
`Paragraphs 56-96 of the Counterclaims as if fully set forth herein.
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`98.
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`As described above, Andre W. Olivier, Robert E. Rouquette, and Brien G. Rau
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`are inventors of the inventions claimed in the Bittleston Patents.
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`In the event that the failure to
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`so name Olivier, Rouquette and Rau as inventors was not made with deceptive intent, ION
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`Geophysical hereby sues to correct the Bittleston Patents’ inventorship pursuant to 35 U.s.c.
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`§ 256 to include Olivier, Rouquette and Rau.
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`Ninth Counterclaim — Patent Infringement
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`99.
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`ION Geophysical repeats and realleges each and every allegation contained in
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`Paragraphs 56-98 of the Counterclaims as if fully set forth herein.
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`100.
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`This is a civil action for the willful infringement of United States Patent No.
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`6,525,992 (the ‘992 Patent). This action arises under the patent laws of the United States 35
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`U.S.C. § 1 etseq.
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`101.
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`On February 25, 2003,
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`the ‘992 Patent,
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`titled “Devices for Controlling the
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`Position of an Underwater Cable” was duly and legally issued to Input/Output, Inc. (the former
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`name of ION Geophysical) as assignee.
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`ION Geophysical is the current assignee of the ‘992
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`Patent and is the owner of the right to sue and to recover for any current or past infringement of
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`the ‘992 Patent. A copy of the ‘992 Patent is attached as Exhibit “C.”
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`102. WesternGeco has infringed the ‘992 Patent, literally and/or under the doctrine of
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`equivalents, by making, using, offering to sell, selling and/or supplying in or from the United
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`States products and services relating to steerable streamers (including, but not limited to, the
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`Q-Marine Products and Services) and/or inducing and/or contributing to such conduct by
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`WesternGeco’s customers or other persons or entities, without authority and in violation of 35
`
`U.S.C. § 27 1(a), (b), (c) and/or (f).
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`103. WestemGeco does not have any license or other authority from ION Geophysical
`
`or any other person or entity to practice the subject matter claimed by the ‘992 Patent.
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`104. Upon information and belief, WesternGeco has been aware of the ‘992 Patent at
`
`all relevant times.
`
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`105. Upon information and belief, WesternGeeo has willfully infringed the ‘992
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`Patent. WesternGeco’s willful infringement of the ‘992 Patent renders this an exceptional case
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`pursuant to 35 U.S.C. § 285.
`
`Tenth Counterclaim—Antitrust Violation as to the Bittleston Patents
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`106.
`
`ION Geophysical repeats and realleges each and every allegation contained in
`
`Paragraphs 56-105 of the Counterclaims as if fully set forth herein.
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`107.
`
`On information and belief, one or more individuals associated with the filing and
`
`prosecution of the applications that led to the issuance of the Bittleston Patents including the
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`alleged, named co-inventor, Bittleston, deliberately and intentionally committed fraud before the
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`PTO in the procurement of the Bittleston Patents. On information and belief, the Bittleston
`
`Patents were assigned to WesternGeco.
`
`108.
`
`On information and belief, WesternGeco’s deliberate and intentional failure to
`
`disclose the DigiCOURSE device, upon which the subject matter of the Bittleston’s Patents’
`
`claims are based, materially affected allowance of the Bittleston Patents in that one or more
`
`claims of the Bittleston Patents would not have been allowed (at least in their present form) but
`
`for WesternGeco’s fraudulent omission. Moreover, the currently named inventors and/or the
`
`attorneys prosecuting the patent applications for the Bittleston Patents intentionally and with
`
`deceptive intent failed to identify Andre W. Olivier, Robert E. Rouquette and Brien G. Rau, the
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`DigiCOURSE engineers who developed the seismic cable steering device, as named inventors.
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`Relevant Market & Market Power
`
`109.
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`On information and belief, WesternGeco is one of, if not the largest provider of
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`marine seismic services in the United States.
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`ION Geophysical competes with WesternGeco in
`
`the United States market by, among other things, manufacturing and selling devices which
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`provide for the lateral steering of marine seismic streamers and by providing seismic data
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`processing services for 4D seismic surveys.
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`110,
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`A relevant market is the market for marine seismic surveys performed using
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`laterally steerable streamers in the United States. Upon information and belief, the United States
`
`market for marine seismic surveys performed using laterally steerable streamers is a separate and
`
`distinct market from other geographical markets. Furthermore, the market for marine seismic
`
`surveys performed using laterally steerable streamers is a separate and distinct market from the
`
`market for marine seismic surveys performed using other seismic survey devices. WestemGeco
`
`is active in the market for marine seismic surveys performed using laterally steerable streamers
`
`and, on information and belief, controls a significant share of the market and/or is attempting to
`
`gain a significant share of the market through the fraudulently procured Bittleston Patents.
`
`111.
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`A relevant submarket is the market for 4D marine seismic surveys. WesternGeco
`
`is active in the market for 4D marine seismic surveys, and on information and belief, controls a
`
`significant share of the market and/or is attempting to gain a significant share of the market
`
`through the fraudulently procured Bittleston Patents.
`
`Attempt To Monopolize
`
`112.
`
`The attempt
`
`to monopolize in violation of Sherman Act § 2 arises out of
`
`WesternGeco ‘ s fraudulent procurement and enforcement of the Bittleston Patents.
`
`113. WestemGeco’s improper acts in procuring the Bittleston Patents constitute
`
`knowing, willful, and intentional acts, misrepresentations, and/or omissions before the PTO
`
`sufficient for a finding of fraud on the PTO.
`
`114. On information and belief, WestemGeco’s deliberate and intentional failure to
`
`disclose the DigiCOURSE device upon which the subject matter of the Bittleston Patents’ claims
`
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`are based materially affected allowance of the Bittleston Patents in that one or more claims of the
`
`E3ittleston Patents would not have been allowed (at
`
`least
`
`in their present
`
`form) but
`
`for
`
`WesternGeco’s fraudulent omission.
`
`115.
`
`On information and belief, WesternGeco has asserted the Bittleston Patents
`
`against ION Geophysical with knowledge of its failure to cite material prior art during the
`
`prosecution of the applications for the Bittleston Patents, and thus, with knowledge