`571-272-7822
`
`
`
`Paper 101
`Entered: December 15, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`PETROLEUM GEO-SERVICES INC.,
`and
`ION GEOPHYSICAL CORPORATION
`AND ION INTERNATIONAL S.A.R.L.,
`Petitioner,
`
`v.
`
`WESTERNGECO LLC,
`Patent Owner.
`____________
`
`Case IPR2014-006881
`Patent 7,080,607 B2
`____________
`
`
`Before BRYAN F. MOORE, SCOTT A. DANIELS, and
`BEVERLY M. BUNTING, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`1 Case IPR2015-00567 has been joined with this proceeding.
`
`
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`A. Background
`
`I. INTRODUCTION
`
`Petroleum Geo-Services (“Petitioner,” or “PGS”) filed a Petition to
`
`institute an inter partes review of claims 1 and 15 of U.S. Patent No.
`
`7,080,607 B2 (“the ’607 patent”).2 Paper 1 (“PGS Pet.”). WesternGeco LLC
`
`(“Patent Owner”) timely filed a Preliminary Response. Paper 26 (“First
`
`Prelim. Resp.”). We instituted trial in Petroleum Geo-Services, Inc., v.
`
`WesternGeco L.L.C., Case IPR2014-00688, (the “PGS IPR”), for claims 1
`
`and 15 of the ’607 patent on certain grounds of unpatentability alleged in the
`
`Petition. Paper 33 (“Decision to Institute” or “Inst. Dec.”). Patent Owner,
`
`in due course, filed a Response. Paper 44 (“Response”). Petitioner
`
`subsequently filed a Reply. Paper 78 (Reply).
`
`In a separate proceeding, ION Geophysical Corporation and ION
`
`International S.A.R.L., v. WesternGeco L.L.C., Case IPR2015-00567 (PTAB
`
`Jan. 14, 2015) (the “ION IPR”), ION Geophysical Corporation and ION
`
`International S.A.R.L. (“ION”) also filed a Petition to institute an inter
`
`partes review of claims 1 and 15 of the ’607 patent. Paper 3 (“ION Pet.”).
`
`With their Petition, ION also filed a Motion for Joinder, Paper 4 (“Mot.”),
`
`seeking to join the ION IPR with the PGS IPR. Mot. 2. Patent Owner filed
`
`an Opposition to ION’s Motion for Joinder. Paper 10 (“Opp.”). We
`
`instituted trial in the ION IPR and granted ION’s Motion for Joinder. Paper
`
`
`2 The Petition was initially accorded the filing date of April 23, 2014. Paper
`6. Following submission of an updated Mandatory Notice (Paper 18) on
`August 5, 2014, including additional real-parties-in-interest, the filing date
`of the Petition was changed to August 5, 2014 and we exercised our
`discretion under 37 C.F.R. § 42.5(c) to set a new deadline for Patent
`Owner’s preliminary response. Paper 22, 6.
`
`2
`
`
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`14 (“ION Decision to Institute” or “ION Inst. Dec.”). We ordered ION not
`
`to file papers, engage in discovery, or participate in any deposition or oral
`
`hearing in IPR2014-00688 without obtaining authorization. ION was,
`
`however, permitted to appear in IPR2014-00688 so that it could receive
`
`notification of filings and attend depositions and the oral hearing. Patent
`
`Owner subsequently filed a Preliminary Response to ION’s Petition. Paper
`
`70 (“ION Prelim. Resp.”).
`
`In addition, Petitioner filed a Motion to Exclude. Paper 85. Patent
`
`Owner filed an Opposition to Petitioner’s Motion to Exclude (Paper 90),
`
`and Petitioner filed a Reply. Paper 94. Also, Petitioner filed three Motions
`
`to Seal (Papers 81, 87, and 97), and Patent Owner filed a Motion to Seal.
`
`Paper 91.
`
`An oral hearing was held on July 30, 2015. A transcript of the hearing
`
`is included in the record. Paper 100 (“Tr.”).
`
`The Board has jurisdiction under 35 U.S.C. § 6(c). This Final Written
`
`Decision is entered pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`
`For the reasons that follow, we determine that Petitioner has proven, by a
`
`preponderance of the evidence, that claims 1 and 15 of the ’607 patent are
`
`unpatentable.
`
`B. Additional Proceedings
`
`Lawsuits involving the ’607 patent presently asserted against
`
`Petitioner include WesternGeco LLC v. Petroleum Geo-Services, Inc., 4:13-
`
`cv-02725 (the “PGS lawsuit”) in the Southern District of Texas and
`
`WesternGeco LLC v. ION Geophysical Corp., 4:09-cv- 01827 (the “ION
`
`lawsuit”) also in the Southern District of Texas. ION Pet. 8.
`
`The ’607 patent is related to the patents involved in IPR2014-00687
`
`and IPR2014-00689.
`
`3
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`C. The ’607 Patent
`
`The ’607 patent (Ex. 1001), titled “Seismic Data Acquisition
`
`Equipment Control System,” generally relates to a method and apparatus for
`
`improving marine seismic survey techniques to more effectively control the
`
`movement and positioning of marine seismic streamers towed in an array
`
`behind a boat. Ex. 1001, 1:16–24. As illustrated in Figure 1 of the ’607
`
`patent reproduced below, labeled “Prior Art,” a seismic source, for example
`
`air gun 14, is towed by boat 10 producing acoustic signals, which
`
`are reflected off the earth below. Id. The reflected signals are received by
`
`hydrophones (no reference number) attached to streamers 12, and the signals
`
`“digitized and processed to build up a representation of the subsurface
`
`geology.” Id. at 1:31–33.
`
`4
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`
`
`
`
`Figure 1, above, depicts an array of seismic streamers 12 towed
`
`behind vessel 10.
`
`In order to obtain accurate survey data, it is necessary to control the
`
`positioning of the streamers, both vertically in the water column, as well as
`
`horizontally against ocean currents and forces which can cause the normally
`
`linear streamers to bend and undulate and, in some cases, become entangled
`
`with one another. Id. at 1:42–2:16. As illustrated in Figure 1, above, each
`
`streamer is maintained in a generally linear arrangement behind the boat by
`
`deflector 16 which horizontally positions the end of each streamer nearest
`
`the boat. Id. at 3:37–46. Drag buoy 20 at the end of each streamer farthest
`
`5
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`from the vessel creates tension along the streamer to maintain the linear
`
`arrangement.
`
`To control the position and linear shapes of the streamers, a
`
`plurality of streamer positioning devices, called “birds” 18 or “SPD’s”
`
`(streamer positioning devices), are attached along the length of each
`
`streamer. Id. at 3:47–49. The birds are horizontally and vertically steerable
`
`and control the shape and position of the streamer in both vertical (depth)
`
`and horizontal directions. Id. at 3:49–55. The birds’s job is usually to
`
`maintain the streamers in their linear and parallel arrangement, because
`
`when the streamers are horizontally out of position, the efficiency of the
`
`seismic data collection is compromised. Id. at 2:5–7. The most important
`
`task of the birds, however, is to keep the streamers from tangling. Id. at
`
`3:65–66.
`
`To control the birds and the array of streamers, the ’607 patent
`
`describes a distributed control system using global control system 22 located
`
`on the vessel and a local control system at each bird to maintain the
`
`streamers in their particular linear and parallel arrangement. Id.
`
`at 3:56–60. In an embodiment of the described control system, global
`
`control system 22 “maintains a dynamic model of each of the seismic
`
`streamers” that takes into account the behavior of the entire array and uses
`
`desired and actual positions of the birds to “regularly calculate updated
`
`desired vertical and horizontal forces the birds should impart on the seismic
`
`streamers 12 to move them from their actual positions to their desired
`
`positions.” Id. at 4:28–34, 48–50.
`
`The ’607 patent further explains that there is a time delay between
`
`when the positions of the birds are measured and the “actual positions” of
`
`the birds used to determine the vertical and horizontal forces. Id. at 4:51–55.
`
`6
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`To account for the time delay “the global control system 22 runs position
`
`predictor software to estimate the actual locations of each of the birds 18.”
`
`Id. at 4:53–55. Once these forces are determined, “[t]he global control
`
`system will preferably send the following values to the local bird controller:
`
`vertical force, demanded horizontal force, towing velocity, and crosscurrent
`
`velocity.” Id. at 4:67–5:3.
`
`The specification explains that these forces are capable of being
`
`implemented by a bird as shown in Figure 2 of the ’607 patent, reproduced
`
`below.
`
`
`
`Figure 2 of the ’607 patent, above, illustrates bird 18 and local controller 36
`
`positioned on streamer 12 where bird 18 is controlled in both horizontal and
`
`
`
`7
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`vertical directions by wings 28 actuated by wing motors 34. Id. at 5:27–51.
`
`The specification of the ’607 patent describes that the position of streamer
`
`12 is effected when “local control system 36 controls the movement of the
`
`wings 28 by calculating a desired change in the angle of the wings and then
`
`selectively driving the motors 34 to effectuate this change.” Id. at 5:55–58.
`
`D. Illustrative Claim
`
`Claims 1 and 15 are independent. Claim 1 is a method claim and
`
`claim 15, reproduced below, an apparatus claim, illustrates the claimed
`
`subject matter:
`
`
`
`15. An array of seismic streamers towed by a towing vessel
`comprising:
`
` (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.
`
`Ex. 1001, 12:27–34 (emphasis added).
`
`
`E. The Instituted Grounds of Unpatentability
`
`Petitioner contends that the challenged claims are unpatentable on the
`
`following specific grounds.3
`
`
`
`
`3 Petitioner supports its challenge with Declarations of Dr. Brian J. Evans,
`Ph.D. (Ex. 1002) (“Evans Decl.”) and Dr. Jack H. Cole, Ph.D. (Ex. 1003)
`(“Cole Decl.”). See infra.
`
`8
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`References
`
`Workman4
`
`Workman
`
`Basis
`
`§ 102
`
`§ 103
`
`Workman and Elholm5
`
`§ 103
`
`
`
`Claims Challenged
`
`1 and 15
`
`1 and 15
`
`1 and 15
`
`II. CLAIM CONSTRUCTION
`
`A. Legal Standard
`
`In an inter partes review, claim terms in an unexpired patent are
`
`interpreted according to their broadest reasonable construction in light of the
`
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b); see
`
`also In re Cuozzo Speed Techs., LLC., 778 F.3d 1271, 1278–82 (Fed. Cir.
`
`2015) (“Congress implicitly approved the broadest reasonable interpretation
`
`standard in enacting the AIA,” and “the standard was properly adopted by
`
`PTO regulation.”). Claim terms are given their ordinary and customary
`
`meaning as would be understood by a person of ordinary skill in the art at
`
`the time of the invention and in the context of the entire patent disclosure.
`
`In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). If the
`
`specification “reveal[s] a special definition given to a claim term by the
`
`patentee that differs from the meaning it would otherwise possess[,] . . . the
`
`inventor’s lexicography governs.” Phillips v. AWH Corp., 415 F.3d 1303,
`
`1316 (Fed. Cir. 2005) (en banc) (citing CCS Fitness, Inc. v. Brunswick
`
`Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)).
`
`If an inventor acts as his or her own lexicographer, the definition must
`
`be set forth in the specification with reasonable clarity, deliberateness, and
`
`
`4 Ex. 1004, U.S. Patent No. 5,790,472 (Aug. 4, 1998).
`5 Ex. 1005, U.S. Patent No. 5,532,975 (July 2, 1996).
`
`9
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`precision. Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243,
`
`1249 (Fed. Cir. 1998). If a feature is not necessary to give meaning to what
`
`the inventor means by a claim term, it would be “extraneous” and should not
`
`be read into the claim. Renishaw PLC, 158 F.3d at 1249; E.I. du Pont de
`
`Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1433 (Fed. Cir.
`
`1988). Only terms which are in controversy need to be construed, and then
`
`only to the extent necessary to resolve the controversy. Vivid Techs., Inc. v.
`
`Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`
`We apply these general rules in construing the claims of the ’607
`
`patent.
`
`In our Decision to Institute we determined that a “streamer positioning
`
`device” is “a device that positions a streamer as it is towed.” Inst. Dec. 8–9.
`
`We also determined that “predicting positions,” means “estimating the actual
`
`locations.” Id. at 9. Based on the full record developed during trial, we
`
`adopt those constructions for purposes of this Decision. Because Patent
`
`Owner disagrees with our interpretation of “predicting positions” and also
`
`proposes a claim construction for the phrase “calculate desired changes” as
`
`recited in claims 1 and 15, we provide below additional analysis and the
`
`appropriate claim construction for both these claim limitations. See PO
`
`Resp. 6–14.
`
`B. Predicting Positions
`
`We determined in the Decision to Institute that “predicting positions”
`
`means “estimating the actual locations.” Inst. Dec. 9. Patent Owner
`
`disagrees with this construction and contends that the broadest reasonable
`
`interpretation of “predicting positions” is “determining positions using a
`
`behavior-predictive model.” PO Resp. 6 (emphasis added). Patent Owner
`
`argues that “[t]he intrinsic evidence requires that ‘predicting positions’
`
`10
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`addresses the time lag between positional measurements and steering
`
`commands arriving at the streamer positioning device, as well as the forces
`
`acting on the streamer.” PO Resp. 7 (citing Ex. 1001, 4:8–14, 48–55, 5:4–
`
`16; Ex. 2042 ¶¶ 40, 57, 64–65, 87–88.). Petitioner’s position is that our
`
`construction in the Decision to Institute is correct. Reply 5.
`
`Patent Owner argues that the proper understanding of “predicting
`
`positions” begins with the plain and ordinary meaning of the word
`
`“predicting” as having a temporal aspect, which must be accounted for in the
`
`broadest reasonable interpretation. PO Resp. 7. Patent Owner points to an
`
`ordinary meaning from WEBSTER’S THIRD NEW INTERNATIONAL
`
`DICTIONARY, (Ex. 2066) defining “prediction” as “‘an inference regarding a
`
`future event based on probability theory.” PO Resp. 10 (citing Ex. 2066)
`
`(emphasis added by Patent Owner). We agree with Patent Owner, at least to
`
`the extent that an ordinary meaning of the word “predict[ing]” can generally
`
`be understood as having a temporal aspect relating to the future. Patent
`
`Owner states further in their Response that:
`
`[p]redictive control as recited in claims 1 and 15 requires a
`prediction as to (1) where the streamer positioning device will
`be at the time when commands are received at the device and
`(2) taking into consideration the forces acting on the streamer.
`(Ex. 2042, ¶¶ 40, 64-65, 87-88.)
`
`Id. at 7. First, we note that neither claim 1 nor claim 15 recites “predictive
`
`control” as stated here by Patent Owner. See Ex. 1001, 11:15–24, 12:26–34.
`
`Second, with respect to point (1), our claim construction accounts for exactly
`
`this temporal, i.e. future, aspect of “predicting.” As explained in our
`
`Decision to Institute:
`
`the received position data of any bird 18 is old, i.e., not
`instantaneous, or current, but is used to estimate a position of
`bird 18, and assess the estimate as an actual position of bird 18.
`
`11
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`Inst. Dec. 9. Our claim construction relies specifically on the nature of the
`
`temporal component described in the ’607 patent specification which states
`
`“the global positioning system runs position predictor software to estimate
`
`the actual locations of each of the birds 18.” Ex. 1001, 4:51–55. Based on
`
`the specification, the estimated “actual locations” recited in our construction
`
`is a future prediction relative to the old (measured) position data that takes
`
`into account the time delay, or lag, and as stated in Patent Owner’s point (1)
`
`above. The “actual location” in our claim construction is “where the
`
`streamer positioning device will be at the time when commands are received
`
`at the device” as contended by Patent Owner. See PO Resp. 7.
`
`Turning to Patent Owner’s point (2), here Patent Owner argues that
`
`the broadest reasonable interpretation of “predict[ing] positions” must
`
`consider not only positional data, but also force data. Id. Patent Owner
`
`contends that the specification is clear that “predicting positions” requires
`
`“behavior prediction” and that “[b]ehavior prediction is more sophisticated
`
`than simply estimating the actual locations.” Id. at 9–10. To support its
`
`position that a “behavior-predictive model” should be part of the
`
`construction Patent Owner draws our attention to certain portions of the
`
`specification that discuss control of the streamer positioning devices:
`
`the inventive control system utilizes a distributed processing
`control architecture and behavior-predictive model-based
`control logic to properly control the streamer positioning
`devices.
`
`Ex. 1001, 4:11–14. Also,
`
`[t]he global control system 22 preferably maintains a dynamic
`model of each of the seismic streamers 12 and utilizes the
`desired and actual positions of the birds 18 to regularly
`calculate updated desired vertical and horizontal forces the bird
`
`12
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`should impart on the seismic streamers 12 to move them from
`their actual positions to their desired positions.
`
`Id. at 4:28–33. And,
`
`[t]he global control system 22 preferably calculates the desired
`vertical and horizontal forces based on the behavior of each
`streamer and also takes into account the behavior of the
`complete streamer array.
`
`Id. at 4:48–51. Using these specification examples, Patent Owner includes
`
`“behavior-predictive model” in its claim construction for “predict[ing]
`
`positions” as part of the overall dynamic model defining the streamer array
`
`and “predicts the effects of the forces resulting from operation of the system
`
`itself, such as the effects that controlling one streaming positioning device
`
`will have on others.6 PO Resp. 11 (citing Ex. 1001, 4:10–14, Ex. 2042 ¶¶
`
`59–65, 87–88). We must take care, however, when reading a patent
`
`specification to interpret and understand the claims and requisite claim
`
`language in light of the disclosure, while not inappropriately importing
`
`variations and specific embodiments into a claim interpretation. See
`
`Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir.
`
`2004). (“Though understanding the claim language may be aided by the
`
`explanations contained in the written description, it is important not to
`
`import into a claim limitations that are not a part of the claim.”).
`
`A claim construction analysis begins with, and is centered on, the
`
`claim language itself. See Interactive Gift Express, Inc. v. Compuserve, Inc.,
`
`256 F.3d 1323, 1331 (Fed. Cir. 2001). Claims 1 and 15, recite the limitation
`
`
`6 Claim 1 recites “predicting positions” in the nature of a method claim,
`whereas claim 15, an apparatus claim, recites “a prediction unit adapted to
`predict positions.” We understand no substantive difference between these
`two claim terms and our analysis and construction applies equally to both.
`
`13
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`“predict[ing] positions.” A plain meaning of the word “position” is “the
`
`point or area occupied by a physical object.” MERRIAM WEBSTER ONLINE
`
`DICTIONARY, http://www.merriam-webster.com/dictionary/position (last
`
`visted Dec. 4, 2015. On its face, therefore, the word itself does not impart
`
`any dynamic characteristic to the limitation as a whole. The claims also do
`
`not recite the terms “dynamic model,” “behavioral-predictive model,” or
`
`“force.” It is understood from a plain reading of the claims, that the
`
`“predicted positions” are used, for example as recited in claim 15 “by a
`
`control unit . . . to calculate desired changes in positions of one or more of
`
`the streamer positioning devices.” This at least implies that to control the
`
`streamer positioning device some force will be imparted by the streamer
`
`positioning device based on the control units’ calculations. It does not
`
`however, express to the reader that such forces utilized in a dynamic or
`
`behavior-predictive model, are required by the prediction unit to “predict
`
`positions.”
`
`Addressing the specific portions of the ’607 patent relied upon by
`
`Patent Owner, these examples discuss dynamic model, streamer and SPD
`
`behavior including, calculated forces and estimated actual locations of the
`
`SPD’s as separate functional elements or components of a “global control
`
`system 22.” See Ex. 1001, 4:48–55. The specification states explicitly that
`
`these are preferred embodiments. Id.. “While . . . claims are to be
`
`interpreted in light of the specification and with a view to ascertaining the
`
`invention, it does not follow that limitations from the specification may be
`
`read into the claims.” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d
`
`1182, 1186 (Fed. Cir. 1998) (citation omitted). Patent Owner’s construction
`
`would require the term “predicit[ing] positions” to include a “behavior-
`
`predictive model,” a term that is recited only one time in the specification
`
`14
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`and without any specific definition, other than as “control logic to properly
`
`control the streamer positioning device.” Ex. 1001, 4:16–20. We are not
`
`persuaded from the claim language itself or the written description of the
`
`’607 patent that the “behavior-predictive model” to control all the streamer
`
`positioning devices in the array should necessarily be read into “predict[ing]
`
`positions” as recited in claims 1 and 15.
`
`Patent Owner also relies upon the testimony of its Declarant, Dr.
`
`Triantafyllou, in support of its position that “predicting positions” requires a
`
`behavior-predictive model. PO Resp. 10–12 (citing Ex. 2042 ¶¶ 36, 59–65,
`
`87–88. Dr. Triantafyllou has over 40 years of experience in the field of
`
`marine vehicle dynamics and control. Ex. 2042 ¶ 1. He has a bachelor’s
`
`degree in Naval Architecture and Marine Engineering, as well as a Master of
`
`Science and Mechanical Engineering, a Master’s of Science in Ocean
`
`Engineering, and a Ph.D in Ocean Engineering from MIT. Id. at ¶ 2. Since
`
`1979, Dr. Triantafyllou has been an MIT faculty member and professor,
`
`including Director of the Center for Ocean Engineering at MIT, as well as a
`
`visiting research scientist at the Woods Hole Oceanographic Institute. Id. at
`
`¶¶ 6, 9. We understand from Dr. Triantafyllou’s testimony, that in a large
`
`array of towed seismic streamers, it is particularly helpful to synchronize all
`
`the streamer positioning devices that control the numerous parallel
`
`streamers, and “to continuously coordinate all the streamer positioning
`
`devices in the array, combined with a behavior-based predictive model, and
`
`then send commands to each local control system helps prevent the type of
`
`overcorrection that can increase the likelihood of streamer tangling.” Ex.
`
`2042 ¶ 71. Although Dr. Triantafyllou’s testimony is helpful in
`
`understanding how the specification of the ’607 patent attempts to describe
`
`the preferred aspects of the invention disclosed therein, for example that the
`
`15
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`behavior-predictive model “uses past information and knowledge about the
`
`dynamics of a system to determine how that system configuration will
`
`change over time,” his testimony does not explain why, as discussed above,
`
`we should interpret the claim term “predicting positions” as requiring a
`
`preferred embodiment from the specification. Ex. 2042 ¶ 65, see also Ex.
`
`1001, 4:11–13 (In an embodiment described in the specification “[t]he
`
`global control system 22 preferably maintains a dynamic model of each of
`
`the seismic streamers 12.”)
`
`In the instant case, Patent Owner has not brought any language from
`
`the specification to our attention where Patent Owner purported to be its
`
`own lexicographer and defined “predict[ing] positions” in a manner that
`
`requires a behavior-predictive model relying on dynamics of the system as a
`
`whole. It is well settled that “claims will not be read restrictively unless the
`
`patentee has demonstrated a clear intention to limit the claim scope using
`
`words of expressions of manifest exclusion or restriction.” Martek
`
`Biosciences Corp. v. Nutrinova, Inc., 579 F.3d 1363, 1381 (Fed. Cir. 2009).
`
`To the extent the term “predicting positions” needs any interpretation,
`
`we determine based on the specification, claim language, and evidence from
`
`the complete record before us, that under the broadest reasonable
`
`interpretation, and giving the words their plain and ordinary meaning
`
`consistent with the specification that, “predicting positions,” means
`
`“estimating the actual locations.”
`
`C. Calculate Desired Changes
`
`Patent Owner contends that the broadest reasonable interpretation of
`
`“calculate desired changes” as recited in claims 1 and 15 is to “determine
`
`forces based on streamer and array behavior.” Patent Owner argues that this
`
`claim limitation “requires the desired changes to take into account not only
`
`16
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`the streamer on which the streamer positioning device is located, but also the
`
`complete streamer array.” PO Resp. 12. We are not persuaded to read such
`
`a limitation into this claim phrase. First, in the context of both claim 1 and
`
`claim 15, the phrase is more completely, “calculate desired changes in
`
`positions.” The plain meaning of, “calculate,” is essentially interchangeable
`
`with “determine,” thus we see no reason to clarify this aspect of the claim
`
`language. The direct object of the verb “calculate” is “changes in position”
`
`of the SPD, thus the proposed claim construction would substitute “forces
`
`based on streamer and array behavior” for “changes in position.” The
`
`asserted claim construction, however, naturally expresses how changes in
`
`position are, or could be accomplished. For example, “force” acting on an
`
`object is, from a physics perspective, a different quantity than the “position”
`
`of the object. A certain force may cause a change in position but it is not the
`
`“change in position” itself. We are, therefore, not persuaded by the plain
`
`meaning of the claim language that “changes in position” is required to be
`
`limited to any particular causational definition or quantity.
`
`Patent Owner’s claim construction relies upon preferred embodiments
`
`from the specification, for example, the specification states that “[t]he global
`
`control system 22 preferably calculates the desired vertical and horizontal
`
`forces based on the behavior of each streamer and also takes into account the
`
`behavior of the complete streamer array.” See PO Resp. 13 (citing Ex. 1001,
`
`4:48–51). Furthermore, to the extent that Patent Owner is relying on the
`
`“global control system 22” as predicting or calculating such forces, the
`
`specification includes an alternative embodiment where the global control
`
`system does not calculate the forces, but alternatively, “can transmit location
`
`information to the local control system 36 instead of force information.” Ex.
`
`1001, 6:38–39.
`
`17
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`Accordingly, we determine based on the specification, claim
`
`language, and evidence from the complete record before us, that under the
`
`broadest reasonable interpretation, and giving the words their plain and
`
`ordinary meaning consistent with the specification, that the phrase
`
`“calculating desired changes in position” needs no construction and should
`
`be accorded its plain and ordinary meaning.
`
`III. ANALYSIS
`
`A. Claims 1 and 15 – Anticipation by Workman
`
`To prevail on its patentability challenge, Petitioner must establish
`
`facts supporting its challenge by a preponderance of the evidence. 35 U.S.C.
`
`§ 316(e); 37 C.F.R. § 42.1(d). Petitioner asserts that claims 1 and 15 are
`
`anticipated by Workman under 35 U.S.C. § 102. Pet. 26–40; Pet. Reply 17–
`
`26. Patent Owner disagrees, and focuses its arguments on (a) distinguishing
`
`the claimed “predicting positions” limitation in claims 1 and 15 from the
`
`Kalman filter solution disclosed in Workman, and (b) that the positional
`
`correction disclosed by Workman does not fall within the broadest
`
`reasonable interpretation of “calculate desired changes.” PO Resp. 21–29.
`
`“A claim is anticipated only if each and every element as set forth in
`
`the claim is found, either expressly or inherently described, in a single prior
`
`art reference.” Verdegaal Bros. Inc. v. Union Oil Co., 814 F.2d 628, 631
`
`(Fed. Cir. 1987). “The identical invention must be shown in as complete
`
`detail as is contained in the . . . claim.” Richardson v. Suzuki Motor Co., 868
`
`F.2d 1226, 1236 (Fed. Cir. 1989). The elements must be arranged as
`
`required by the claim, but this is not an ipsissimis verbis test, i.e., identity of
`
`terminology is not required. In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990).
`
` “[U]nless a reference discloses within the four corners of the
`document not only all of the limitations claimed but also all of
`
`18
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`the limitations arranged or combined in the same way as recited
`in the claim, it cannot be said to prove prior invention of the
`thing claimed and, thus, cannot anticipate under 35 U.S.C. §
`102.”
`
`Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008).
`
`Whether a patent is invalid as anticipated is a two-step inquiry. See
`
`Power Mosfet Tech., LLC. v. Siemens AG, 378 F.3d 1396, 1406 (Fed. Cir.
`
`2004). The first step requires construction of the claims. Id. The second
`
`step in the analysis requires a comparison of the properly construed claim to
`
`the prior art. Id.
`
`1. Overview of Workman
`
`Workman discloses a method for controlling the position and shape of
`
`marine seismic streamer cables towed by a vessel. Ex. 1004, Abstract, Fig.
`
`1. More specifically, Workman teaches that real time signals, i.e. actual
`
`signals, from a towed streamer array are compared to corresponding input
`
`threshold parameters, to determine if the cables should be repositioned. Id.
`
`at 2:47–51. Workman discloses that the positions of seismic streamer cables
`
`are controlled by a plurality of birds and tail buoys “for adjusting the vertical
`
`and lateral positions of the streamer cables 13.” Id. at 3:16–19. Figure 2 of
`
`Workman is reproduced below.
`
`
`
`19
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`
`
`Figure 2 of Workman illustrates diagrammatically, seismic data
`
`acquisition system 5 for positioning streamer cables 13, including streamer
`
`controller 16 receiving instructions from streamer control processor 40. Id.
`
`at col. 4, ll. 16–18. Within data acquisition system 5, Workman also
`
`discloses network solution system 10 which uses a “Kalman filter solution
`
`on the signals it receives from the vessel positioning system 20 and location
`
`sensing devices 15.” Id. at col. 3, ll. 47–49. Workman states that once the
`
`real time position signals are obtained, “[t]he 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.” Id. at col. 4, ll. 12–17.
`
`Threshold values can be, for example, minimum streamer cable separations,
`
`minimum allowable seismic coverage, maximum hydrophone noise levels,
`
`20
`
`
`
`IPR2014-00688
`Patent 7,080,607 B2
`
`and minimum obstructive hazard separation. Id. at col. 3, l. 66–col. 4, l. 3.
`
`Besides repositioning of the streamer cables according to the comparison of
`
`real time signals and threshold parameters, Workman discusses an “at risk”
`
`situation such as entanglement of the streamer cables, or obstructive hazards.
`
`Id. at col. 4, ll. 45–51. In an “at risk” situation, ce