IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`CIVIL ACTION NO. 4:22-CV-00965
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`§
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`C&M OILFIELD RENTALS, LLC D/B/A
`C-MOR ENERGY SERVICES,
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`V.
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`ENSIGN US SOUTHERN DRILLING
`LLC,
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`Plaintiff,
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`Defendant.
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`ENSIGN’S SUPPLEMENTAL PRELIMINARY INVALIDITY
`CONTENTIONS
`Introduction
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`Pursuant to Plaintiff’s April 19 2023 invitation for Ensign to supplement and pursuant to the
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`I.
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`Southern District of Texas’s Patent Local Rules 3-3 (Preliminary Invalidity Contentions) and 3-4
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`(Document Production Accompanying Preliminary Invalidity Contentions), Defendant Ensign US
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`Southern Drilling LLC (“Ensign”) hereby submits its Supplemental Preliminary Invalidity
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`Contentions and Document Production.
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`Plaintiff served Ensign with Plaintiff’s Disclosure of Asserted Claims and Preliminary
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`Infringement Contentions for U.S. Patent Nos. 10,976,016 and 10,900,626 pursuant to P.R. 3-1 and
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`3-2, wherein Plaintiff alleged infringement of claims 1-2, and 23 of the ’016 patent and claims 9 and
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`19 of the ’626 patent. Ensign timely served its Preliminary Invalidity Contentions and Plaintiff invited
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`Ensign to supplement those. The original Preliminary Invalidity Contentions and the Supplemental
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`Invalidity Contentions are collectively referred to as “Preliminary Invalidity Contentions” or
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`“Invalidity Contentions” unless the connotation suggests otherwise.
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`Ensign does not provide any Preliminary Invalidity Contentions regarding any claims not
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`asserted against Ensign. To the extent Plaintiff is permitted to assert additional claims against
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`Ensign in the future, Ensign reserves all rights to disclose new or supplemental invalidity
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`contentions regarding such claims.
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`In these Invalidity Contentions, with respect to each Asserted Claim, Ensign: (i) identifies
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`each currently known item of prior art that either anticipates or renders obvious each Asserted
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`Claim; (ii) specifies whether each such item of prior art anticipates or renders obvious the applicable
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`claims; (iii) submits charts for illustrative prior art references identifying where each limitation of
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`each Asserted Claim is disclosed or rendered obvious by the prior art; and (iv) identifies the grounds
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`for invalidating the Asserted Claims based on enablement and/or written description under 35 U.S.C.
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`§ 112. Ensign reserves the right to supplement these Invalidity Contentions pursuant to the Federal
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`Rules of Civil Procedure, the Court’s Local Rules, or any other order or schedule entered by the
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`Court.
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`II. General Statements and Objections
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`Ensign’s Preliminary Invalidity Contentions are based on Ensign’s knowledge,
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`understanding, and belief as to the facts and information available as of the date of these Preliminary
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`Invalidity Contentions. Discovery in the case is proceeding and Ensign has not yet completed their
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`investigation, collection of information, discovery, or analysis relating to this action, and additional
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`discovery may require Ensign to supplement or modify these contentions. For example, Plaintiff
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`has not produced all of the information relevant to Ensign’s counterclaims and defenses. For these
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`and other reasons, including those set forth below, Ensign reserves the right to further supplement or
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`alter the positions taken and information disclosed in these Preliminary Invalidity Contentions
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`including, without limitation, the prior art and grounds of invalidity set forth herein, to take into
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`account information or defenses that may come to light as a result of these continuing efforts. Ensign
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`further reserves the right to introduce and use such supplemental materials at trial.
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`Ensign provides the information below and in the attached claim charts, as well as the
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`accompanying document production, in a good faith effort to comply with the Local Rules and the
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`Court’s Scheduling Order. Ensign reserves the right to amend, modify, and/or supplement these
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`Preliminary Invalidity Contentions. In addition, Ensign reserves the right to prove the invalidity of
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`the Asserted Claims on bases other than those required to be disclosed in these Preliminary Invalidity
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`Contentions.
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`
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`A. Plaintiff’s Infringement Contentions
`These Preliminary Invalidity Contentions are made in response to Plaintiff’s Infringement
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`Contentions. Should Plaintiff modify any assertion or contention in Plaintiff’s Infringement
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`Contentions, Ensign reserves the right to supplement or otherwise amend these Preliminary
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`Invalidity Contentions and the accompanying document production. Ensign notes that Plaintiff’s
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`Infringement Contentions are deficient in a number of respects, including without limitation, relying
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`on allegations made upon insufficient evidence, incorrect reasoning, and positions in direct conflict
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`with the plain meaning of the claims. By setting forth their Preliminary Invalidity Contentions in
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`response to Plaintiff’s Infringement Contentions, Ensign does not waive their objections to Plaintiff’s
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`deficient Infringement Contentions, nor do Ensign’s Preliminary Invalidity Contentions acquiesce
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`to or implicitly agree with any of the reasoning, analysis, conclusions, or other basis set forth in
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`Plaintiff’s Infringement Contentions.
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`
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`B. Claim Construction
`The Court has not yet construed the Asserted Claims of either patent. Ensign reserves the
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`right to identify other prior art or to supplement these Preliminary Invalidity Contentions because
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`Ensign’s position on invalidity of certain claims may depend on how those claims are construed by
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`the Court. Ensign’s Preliminary Invalidity Contentions are based, at least in part, on their present
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`understanding of the Asserted Claims and/or their present understanding of the claim constructions
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`Plaintiff appears to be using—based on Plaintiff’s Infringement Contentions— whether or not
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`Ensign agrees with such claim constructions.
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`To the extent that these Preliminary Invalidity Contentions reflect constructions of claim
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`terms that may be consistent with or implicit in Plaintiff’s Infringement Claim Charts, no inference
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`is intended or should be drawn that Ensign agree with such claim construction(s). Ensign takes no
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`position on any matter of claim construction in these Preliminary Invalidity Contentions. Any
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`statement herein describing or tending to describe any claim element is provided solely for the
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`purpose of understanding the relevant prior art. Ensign expressly reserves the right to propose any
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`claim construction they consider appropriate and/or to contest any claim construction they
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`consider inappropriate. Indeed, Ensign may disagree with Plaintiff’s interpretation of the meaning
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`of many terms and phrases in the Asserted Claims.
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`Similarly, nothing stated herein shall be treated as an admission or suggestion that Ensign
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`agree with Plaintiff regarding either the scope of any of the Asserted Claims or the claim
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`constructions advanced directly or implicitly by Plaintiff. Additionally, nothing in these Preliminary
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`Invalidity Contentions shall be treated as an admission that any accused product meets any limitations
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`of any of the Asserted Claims.
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`Ensign anticipates the Court’s construction of claim terms may significantly affect the scope
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`of the Asserted Claims. Therefore, Ensign reserves the right to supplement or modify these
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`Preliminary Invalidity Contentions based upon any future claim construction ruling.
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`C. Ongoing Discovery and Disclosures
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`Ensign provides these Preliminary Invalidity Contentions as provided for in the Scheduling
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`Order in this matter. Discovery in this case is ongoing, however, and Ensign’s investigation,
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`including Ensign’s search for prior art, is ongoing. Ensign therefore reserves the right to further
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`supplement or alter the positions taken and information disclosed in these Preliminary Invalidity
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`Contentions including, without limitation, the prior art and grounds of invalidity set forth herein, to
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`take into account information or defenses that may come to light as a result of these continuing
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`efforts. Ensign hereby incorporates by reference the testimony of any fact witnesses that are
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`deposed, that provide declarations, or that otherwise testify in this lawsuit or related lawsuits such
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`as the Apollo and Nabors lawsuits with C&M. Ensign also hereby incorporates by reference the
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`forthcoming reports and testimony of Ensign’s expert witnesses regarding invalidity of the patents.
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`Ensign incorporates and reserves the right to rely upon any and all prior art references and/or other
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`invalidity or unenforceability defenses or claims asserted in the Apollo or Nabors pleadings, the
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`Apollo or Nabors Invalidity Contentions, or in the Apollo or Nabors expert reports in the cases of
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`C&M v. Apollo Lighting, Case No.21-cv-00544, Western District of Texas, Waco Division and/or
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`Nabors v. C&M, Case No. 4:22-cv-02140. Southern District of Texas, Houston Division. In
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`addition, Ensign reserves the right to rely upon any invalidity defenses asserted and/or raised in any
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`USPTO proceeding including, but not limited to, any inter parte review petition involving any
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`asserted patent.
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`Ensign bases these Preliminary Invalidity Contentions on their current knowledge and
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`understanding of the Asserted Claims, Plaintiff’s Infringement Contentions, the prior art, and other
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`facts and information available as of the date of these contentions. Ensign has not yet completed
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`their investigation, collection of information, discovery, or analysis relating to this action, and
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`additional discovery may require Ensign to supplement or modify these contentions. For example,
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`Plaintiff has not produced all of the information relevant to Ensign’s claims, counterclaims and
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`defenses. Ensign therefore reserves the right to further supplement or alter the positions taken and
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`information disclosed in these Preliminary Invalidity Contentions including, without limitation, the
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`prior art and grounds of invalidity set forth herein, to take into account information or defenses that
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`may come to light as a result of these continuing efforts. Ensign further reserves the right to
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`introduce and use such supplemental materials at trial.
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`Both asserted patents are subject to post-AIA law because the earliest potential priority date
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`is March 15, 2018. However, the ’016 and ’626 patents are not entitled to any date of invention earlier
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`than their respective effective filing date or a filing date of a parent application. “For a patent to
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`claim priority from the filing date of its provisional application, it must satisfy 35 U.S.C. § 119(e)(1).”
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`Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015). Specifically:
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`the specification of the provisional must ‘contain a written description of the invention
`and the manner and process of making and using it, in such full, clear, concise, and
`exact terms,’ 35 U.S.C. § 112 ¶1, to enable an ordinarily skilled artisan to practice the
`invention claimed in the non-provisional application. New Railhead Mfg., LLC v.
`Vermeer Mfg. Co., 298 F.3d 1290, 1294 (Fed. Cir. 2002).
`Ensign objects to Plaintiff alleging or providing evidence of any earlier date of invention. To
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`the extent Plaintiff is able and permitted to assert an earlier date of invention for any of the Asserted
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`Claims, Ensign further reserves their right to supplement, modify, and/or amend these Preliminary
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`Invalidity Contentions and their identification and production of prior art.
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`Further, Ensign expects to take discovery on public use and/or the on-sale bar under 35 U.S.C.
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`§ 102(a), additional prior art under 35 U.S.C. §§ 102 and 103, improper inventorship and/or
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`derivation, earlier invention by other parties under 35 U.S.C. § 102, and/or applicant’s failure to
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`comply with 35 U.S.C. §§ 101, 112, and its duty of disclosure. Ensign therefore reserves all rights
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`to further supplement or amend these Preliminary Invalidity Contentions if and when further
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`information becomes available.
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`D. Prior Art Identification and Citation
`Ensign identifies portions of prior art references that disclose the elements of the Asserted
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`Claims. Although Ensign has identified at least one citation per element for each reference charted
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`or otherwise discussed herein, each and every disclosure of the same element in said reference is not
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`necessarily identified. In an effort to focus the issues, Ensign identifies only limited portions of the
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`cited references and documents produced. It should be recognized that a person of ordinary skill in
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`the art (POSA) would review a photo and/or read a prior art reference as a whole and in the context of
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`other publications, literature, and general knowledge in the field. To understand and interpret any
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`specific statement or disclosure in a prior art reference, a person of ordinary skill in the art would
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`rely upon other information including their common sense, common knowledge, and other
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`publications and general scientific or engineering knowledge.
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`Ensign therefore reserves the right to rely upon other portions of the prior art references not
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`specifically cited herein, as well as on other publications and expert testimony to provide context
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`and to aid understanding and interpretation of the identified portions. Ensign also reserves the right
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`to rely upon other prior art references, other publications, and the testimony of experts to establish
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`that the alleged inventions would have been obvious to a person of ordinary skill in the art, including
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`on the basis of modifying or combining certain cited references. Ensign also reserves the right to
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`rely upon any admissions relating to prior art in the ’016 and/or ’626 patents or their respective
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`prosecution histories or in other proceedings.
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`Where Ensign identifies a particular figure in a prior art reference, the identification should
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`be understood to encompass the caption and description of the figure as well as any text relating to
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`the figure in addition to the figure itself. Similarly, where an identified portion of text refers to a figure
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`or other material, the identification should be understood to include the referenced figure or other
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`material as well.
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`E. Reservation of Rights
`Ensign reserves all rights to further supplement or modify these Preliminary Invalidity
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`Contentions, including the prior art disclosed and stated grounds of invalidity, pursuant to the Court’s
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`Local Rules and the Scheduling Order in this matter. In addition, Ensign reserves the right to prove
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`the invalidity of the Asserted Claims on bases other than those required to be disclosed in these
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`Preliminary Invalidity Contentions and accompanying document production.
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`III.
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`Invalidity Contentions Under 35 U.S.C. § 102 and/or § 103
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`Each Asserted Claim is invalid for lack of novelty under 35 U.S.C. § 102 and/or for
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`obviousness under 35 U.S.C. § 103. The prior art cited herein and/or produced in the accompanying
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`production discloses all the limitations of the Asserted Claims, explicitly, implicitly, and/or
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`inherently, and along with related art and/or POSA knowledge that may also be relied upon to show
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`the state of the art in the relevant time frames. Ensign has produced documents and/or identified
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`exemplary portions of the prior art disclosing the claimed limitations. The prior art and POSA
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`knowledge, however, may contain additional support for particular claim limitations. Ensign
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`expressly reserves the right to rely on uncited portions of the prior art, other documents, and expert
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`testimony to provide context or to aid in the understanding of the cited portions of the prior art.
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`Where Ensign identifies a particular figure in a prior art reference, the identification should be
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`understood to encompass the caption and description of the figure as well as any text relating to the
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`figure in addition to the figure itself. Similarly, where an identified portion of text refers to a figure
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`or other material, the identification should be understood to include the referenced figure or other
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`material as well.
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`Ensign has provided accompanying exemplary charts for the ’016 and ’626 patents and
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`associated document production. Individual claim charts illustrate where each element of each
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`Asserted Claim can be found in each item of the listed prior art. To the extent one might argue that
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`any reference identified in the Charts does not disclose every aspect of an element, the reference
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`still anticipates or renders obvious alone, or in combination, the Asserted Claim(s) because any such
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`aspect of an element is inherently disclosed or would have been obvious to one skilled in the art.
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`Further, by mapping the claim language of the ’016 and ’626 patents to the representative references,
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`Ensign does not imply or admit that the claim language satisfies Section 112 of the Patent Act or
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`that the claim language has patentable weight.
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`The cited prior art could and/or would be combined and modified in a number of ways to
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`meet the Asserted Claims. It should also be recognized that a person of ordinary skill in the art
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`would generally read a prior art reference as a whole and in the context of other publications,
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`literature, and general knowledge in the field. To understand and interpret any specific statement
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`or disclosure in a prior art reference, a person of ordinary skill in the art would rely upon other
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`information including other publications and general scientific or engineering knowledge or
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`common sense. Ensign therefore reserves the right to rely upon other portions of the prior art
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`references not specifically cited herein and on other publications and expert testimony to provide
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`context and to aid understanding and interpretation of the identified portions. Ensign also reserves
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`the right to rely upon other prior art references, other publications, and the testimony of experts to
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`establish that the alleged inventions would have been obvious to a person of ordinary skill in the art,
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`including on the basis of modifying or combining certain cited references.
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`Ensign is not aware of how Plaintiff may attempt to distinguish the prior art cited herein, and
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`thus reserves the right to identify other prior art or known information that would have supplied the
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`allegedly missing elements to render the Asserted Claims obvious or to present negative alleged
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`evidence of secondary indicia of non-obviousness. Plaintiff has not identified what limitations of the
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`Asserted Claims they allege were not known to one skilled in the art at the time of the alleged
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`invention recited in the Asserted Claims. For any claim limitation that Plaintiff alleges is not disclosed
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`in a prior art reference, Ensign reserves the right to assert that such limitation is either inherent in the
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`reference or would have been obvious to one skilled in the art in light of the same, or that the
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`limitation is already known or disclosed in one or more pieces of prior art and in combination would
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`have rendered the Asserted Claims obvious.
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`The suggested obviousness combinations are in the alternative to Ensign’s Invalidity
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`Contentions based on anticipation. The obviousness contentions set forth herein should not be
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`construed to suggest that any prior art is not anticipatory by itself. Ensign reserves the right to rely
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`on any identified and/or produced piece of prior art and/or common knowledge and/or other
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`information to anticipate all of the Asserted Claims and/or to render obvious all of the Asserted
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`Claims in view of the knowledge of one having ordinary skill in the art or in combination with other
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`pieces of prior art.
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`Ensign reserves the right to rely upon any admissions relating to prior art by Plaintiff’s
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`witnesses in this or other cases, in the Asserted Patents or their prosecution histories, and the
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`prosecution histories of related patents/applications. Ensign also reserves the right to rely upon any
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`related patents and patent applications, patents and patent applications incorporated by reference,
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`foreign counterparts of the U.S. patents identified in these Preliminary Invalidity Contentions, U.S.
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`counterparts of foreign patents and foreign patent applications identified in these Preliminary
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`Invalidity Contentions, or U.S. and foreign patents and patent applications corresponding to articles
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`and publications identified in these Preliminary Invalidity Contentions. For prior art patents and
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`publications identified in these Preliminary Invalidity Contentions, Ensign reserves the right to rely
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`on the public use, public availability, offer for sale, and/or sale of the products described in those prior
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`art patents or publications once Ensign has had a full opportunity to take discovery on these subjects.
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`Moreover, prior art not included in these Preliminary Invalidity Contentions may become
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`relevant depending upon the positions Plaintiff asserts, the claim constructions adopted by the Court,
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`and the priority dates given the Asserted Patents. In addition, discovery is ongoing and Ensign has
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`not had the opportunity to complete discovery in the present action. As a result, Ensign may uncover
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`additional prior art and/or relevant information. Ensign reserves the right to supplement, modify, or
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`amend these Preliminary Invalidity Contentions with additional prior art, or different versions of the
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`prior art listed herein, as discovery continues in light of information provided by Plaintiff concerning
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`its infringement allegations, priority dates of the Asserted Patents, or in light of the Court’s claim
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`construction or other rulings and orders.
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`Finally, citations from the listed references are not a ratification or acceptance of the manner
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`in which Plaintiff applies particular claim elements to the features and functions of the accused
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`products. The citations are instead intended to demonstrate that, if certain claim elements are applied
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`against the prior art in the same manner as Plaintiff applies them in their Infringement Contentions,
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`then certain prior art discloses those claim elements to the same extent. The prior art may also disclose
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`these same claim elements if the claim elements are applied differently than in the Infringement
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`Contentions. Nothing in these Preliminary Invalidity Contentions is in any way an admission that
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`the Infringement Contentions correctly describe the scope of the ’016 or ’626 patents or that Ensign
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`infringes the ’016 or ’626 patents.
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`Ensign reserves the right to amend, modify, or supplement these Contentions to include
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`additional prior art under 35 U.S.C. § 102 and/or 103 and/or other equitable defenses, as discovery
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`in this action and Ensign’s investigation proceeds. In addition, Ensign reserves the right to assert
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`additional invalidity grounds under 35 U.S.C. §§ 101, 102, 103, 112, and/or other equitable defenses
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`to the extent they are already not disclosed herein and discovery and further investigation yield
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`information forming the basis of such invalidity.
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`
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`A. Identification of Prior Art
`Each of the Asserted Claims is anticipated and/or rendered obvious by prior art. Pursuant to
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`the local patent rules and subject to the Ensign’s reservations of rights set out herein, Ensign
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`identifies the references on which it may rely as invalidating one or more of the asserted claims of
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`the ‘016 or ’626 Patent. That is, in the attached invalidity claim charts and/or produced documents
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`Ensign relies upon the prior art listed wherein prior art patents are “identified by number, country,
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`and date of issue” (3-3(a)(1)); prior art publications are “identified by title, date of publication, and,
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`author and publisher when feasible” (3-3(a)(2)); and prior art under 35 USC 102(a)(1) specifies the
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`“the item offered for sale, in public use, or otherwise available to the public, the date the offer or
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`use took place or the claimed invention was made available, and the identity of the person or entity
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`that made the use or which made or received the offer, or the person or entity that made the claimed
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`invention available or to whom it was made available” ((3-3(a)(3)(B)). Pursuant to the local rules
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`(3-4(b)), Ensign has produced a copy of each item of prior art, including any required English
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`translations, which copy contains the aforementioned 3-3 requirements. And Ensign has produced
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`additional prior art and photos showing, for example, the state of the art upon which it may rely
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`upon to demonstrate the state of the prior art and/or common sense and/or information generally
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`known to those skilled in the art prior to the patent filings.
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`In addition to the charted and produced references, Ensign identifies the references
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`incorporated by reference in the charted and produced references, the references cited on the face
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`of the ’016 and ’626 patents, the admitted prior art in the specifications of the ’016 and ’626 patent,
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`the background in each asserted patent, the prosecution history of the ’016 and ’626 patents, and/or
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`the prosecution history of any related patents/applications or foreign counterpart. Ensign also
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`reserves the right to rely upon foreign counterparts of the U.S. patents identified above; U.S.
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`counterparts of foreign patents and foreign patent applications identified above; U.S. and foreign
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`patents and patent applications corresponding to articles and publications identified above; and any
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`systems, products, or prior inventions that relate to any references identified above.
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`Ensign further incorporates by reference the prior art references related to the ’016 and ’626
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`patents, including without limitation all prior art produced by or otherwise known to Plaintiff and all
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`prior art known to the named inventors, any past or current owner, or any individual substantively
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`involved in the prosecution of the ’016 and ’626 patents. In addition, Ensign incorporates by
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`reference any expert reports, invalidity contentions, identified prior art, invalidity claim charts or
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`defense disclosed at any date by any party to any other litigation or U.S. Patent & Trademark Office
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`proceeding involving the ’016 and ’626 patents or any related patent, including all references,
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`declarations, pleadings, expert reports, deposition transcripts, and other materials submitted in the cases
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`C&M v. Apollo Lighting, Case No.21-cv-00544, Western District of Texas, Waco Division and/or
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`Nabors v. C&M, Case No. 4:22-cv-02140. Southern District of Texas, Houston Division. In
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`addition, Ensign reserves the right to rely upon any invalidity defenses asserted and/or raised in
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`any USPTO proceeding including, but not limited to, any inter parte review petition involving any
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`asserted patent. The Petition, Declaration, and all exhibits from IPR2023-00804 filed by Ensign
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`on March 30, 2023 including the various claim charts are specifically incorporated herein and
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`included within the documents served with the Supplemental Invalidity Contentions.
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`Ensign contends that at least some of the systems and products disclosed in one or more of
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`the prior art references identified here or in the attached charts are prior art under 35 U.S.C. §102(a).
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`Ensign’s reference to any particular component, device, machine, or other product in these
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`Invalidity Contentions should also be interpreted as a reference to the product itself and any
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`corresponding patents, publications, or product literature cited here or in the attached charts that
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`relate to the cited component, device, machine, or other product. Ensign does not yet have complete
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`information regarding the dates by which some of the cited products were publicly disclosed, used,
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`sold, or offered for sale, the circumstances under which the research, design, and development
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`activities were conducted, and the identities of the particular individuals involved in such activities
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`through publicly available patents, publications, and product literature. Ensign anticipates that the
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`actual dates, circumstances, and identities of individuals will be the subject of third-party discovery
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`during this lawsuit. Discovery is ongoing and Ensign reserves all rights to supplement its invalidity
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`contentions accordingly.
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`A person of ordinary skill in the art would read a prior art reference as a whole and in the
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`13
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`C&M Oilfield Rentals Ex. 2002 - Page 13
`Ensign US Southern Drilling LLC v. C&M Oilfield Rentals LLC
`IPR2023-00804 - U.S. Patent No. 10,976,016
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`context of other relevant publications, literature, and general knowledge in the field. To understand
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`and interpret any specific statement or disclosure in a prior art reference, a person of ordinary skill in
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`the art would also rely upon other information including other relevant publications and general
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`scientific, engineering, or other relevant knowledge. Ensign reserves the right to rely upon the
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`general scientific, engineering, or other relevant knowledge in the field in interpreting the disclosure
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`of the prior art references. In addition, Ensign reserves the right to rely upon other relevant
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`publications and on expert testimony to provide context and aid in the understanding of the prior art
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`references. For example, Ensign reserves the right to rely on well- known prior art publications, such
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`as relevant material and product specifications, to demonstrate the state of the art at the relevant time
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`period. Ensign also reserves the right to rely upon other portions of the prior art references, other
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`publications, and the testimony of experts to establish that the alleged inventions would have been
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`obvious to a person of ordinary skill in the art, including the basis for modifying or combining the
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`prior art references. Furthermore, Ensign reserves the right to rely upon any admissions relating to
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`prior art found in the intrinsic evidence for the ’016 and ’626 patents.
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`Ensign may also rely on uncited portions of the prior art references, other publications, and
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`the testimony of experts to establish that a person of ordinary skill in the art would have been
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`motivated to modify or combine certain of the cited references so as to render the claim obvious.
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`Where Ensign cites to a particular figure in a prior art reference, the citation should be understood to
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`encompass the caption and description of the figure and any test relating to the figure in addition to
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`the figure itself. Conversely, where a cited portion of text refers to a figure, the citation should be
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`understood to include the figure as well. Ensign reserves the right to use other