UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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`PETROLEUM GEO-SERVICES INC.
`Petitioner
`v.
`
`WESTERNGECO LLC
`Patent Owner
`
`
`
`Case IPR2016-00407
`U.S. Patent No. 6,545,944
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`PETITIONER’S REPLY BRIEF
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`PETROLEUM GEO-SERVICES INC.
`Petitioner
`v.
`
`WESTERNGECO LLC
`Patent Owner
`
`
`
`Case IPR2016-00407
`U.S. Patent No. 6,545,944
`
`
`
`PETITIONER’S REPLY BRIEF
`
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`
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`
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`TABLE OF CONTENTS
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`
`
`I.
`
`Introduction ..................................................................................................... 1
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`II. WesternGeco Does Not Dispute Any Element of Claim 1 Except 1(c). ........ 6
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`III. WesternGeco’s Central Argument Rests on a Flawed Understanding of
`Obviousness. ................................................................................................... 7
`
`IV. WesternGeco’s Attempt to Impose a Narrowing Claim Construction Fails. 10
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`V. WesternGeco’s Arguments on Motivation to Combine Fail. ....................... 17
`
`A.
`
`Silverman Does Not Teach Away from or Disparage Simultaneous
`Shooting with Impulsive Sources. ....................................................... 17
`
`B. WesternGeco’s Arguments Regarding Analogous Arts Are Without
`Merit. ................................................................................................... 19
`
`C.
`
`A POSA Would Have Had a Reasonable Expectation of Success in
`Combining Silverman and Itria. .......................................................... 23
`
`VI. Dr. Lynn’s Testimony Regarding the Motivations of The POSA Is
`Unrebutted. ................................................................................................... 24
`
`VII. WesternGeco Does Not Separately Argue the Patentability of Claims 2-13.
` ...................................................................................................................... 26
`
`VIII. Conclusion .................................................................................................... 27
`
`i
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`
`
`TABLE OF AUTHORITIES
`
`CASES
`In re Keller, 642 F.3d 413 (C.C.P.A. 1981) .......................................................... 4, 8
`
`In re Young, 927 F.2d 588 (Fed. Cir. 1991) ............................................................. 19
`
`inContact, Inc. v. Microlog Corp., IPR2015-00560, Paper 21 (PTAB
`July 28, 2016).................................................................................................. 7, 26
`
`KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007) ................................................. 3
`
`MasterImage 3D, Inc. v. RealD Inc., IPR2015-00040, Paper 85
`(PTAB April 14, 2016) ............................................................................... 7, 8, 26
`
`MCM Portfolio LLC v. Hewlett-Packard Co., 812 F.3d 1284 (Fed.
`Cir. 2015) .............................................................................................................. 8
`
`Medichem, S.A. v. Rolabo S.L., 437 F.3d 1157 (Fed. Cir. 2006) ............................. 19
`
`Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314 (Fed. Cir. 2003) ..................... 11
`
`Unwired Planet, LLC v. Apple Inc., 829 F.3d 1353 (Fed. Cir. 2016) ..................... 11
`
`Valeo North America, Inc. v. Magna Electronics, Inc., IPR2014-
`00220, Paper 59 (PTAB May 28, 2015) ............................................................. 20
`
`
`
`ii
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`
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`I.
`
`INTRODUCTION
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`This case turns on a single question: Would a POSA have found it obvious
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`to combine the teachings of Silverman and Itria and use an activation sequence of
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`source elements to enable polarity encoding? Because the answer to that question
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`is yes, claims 1-13 of the de Kok patent are unpatentable and should be canceled.
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`WesternGeco disputes no other elements of claim 1, and it makes no separate
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`defense of claims 2-13. By WesternGeco’s own admissions, all of the challenged
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`claims must therefore fall.
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`As PGS explained in its Petition, there is no doubt that the claimed method
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`for performing polarity encoding using an activation sequence of source elements
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`would have been obvious over Silverman and Itria. It is undisputed that Silverman
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`separates data from simultaneously recorded energy sources using the same
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`polarity encoding scheme as de Kok; WesternGeco’s expert, Dr. Stephen, admitted
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`that “the same operation sequence of polarities is used in both de Kok and in
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`Silverman,” Ex. 1023 (“Stephen Depo. Tr.”) 126:21-128:3, and the two patents
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`depict their polarity encoding schemes with highly similar figures, compare Ex.
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`1001 Fig. 2 with Ex. 1003 Fig. 1.
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`1
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`
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`De Kok Fig. 2 (excerpt)
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`Silverman Fig. 1 (excerpt)
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`The only difference between Silverman and the de Kok patent is that de Kok uses
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`marine impulsive sources—airguns—to create positive and negative polarity
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`signals, whereas Silverman uses vibratory sources. Paper 1 (“Pet.”) 19-23.
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`In view of Itria, that is not a meaningful difference. WesternGeco’s expert,
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`Dr. Stephen, opined that the “genius of de Kok’s patent[] is that you can control
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`the polarity of [an impulsive source] by varying the delay time – the delays of the
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`shot times between [source elements] at different depths.” Stephen Depo. Tr. 23:2-
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`7. But that purported stroke of “genius” was actually made and disclosed years
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`earlier by Itria, which taught to create positive and negative polarity wavefronts in
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`exactly the manner disclosed by de Kok: by firing vertical arrays of impulsive
`2
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`
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`source elements in a timed sequence. See Pet. 8-12, 34-35. De Kok’s “‘end fire’
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`mode” for controlling the polarity of an impulsive source, Ex. 1001 at 3:63, is
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`merely Itria’s technique by a different name. Claim 1 thus represents a mere
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`combination of known elements—Silverman’s polarity encoding and Itria’s
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`technique for controlling the polarity of impulsive sources—with no change in
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`their respective functions. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 415-16
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`(2007).
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`The POSA also would have been motivated to practice this claimed
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`combination. As PGS’s expert, Dr. Lynn, explained, the commercial benefits of
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`marine simultaneous shooting would have been clear to the POSA before the
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`priority date. Ex. 1002 ¶ 123, 140-42. The POSA as of 2001 therefore would have
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`sought a way to use Silverman’s technique in the marine context—specifically,
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`using airguns, the predominant sources in marine surveying. The obvious way to
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`do this would have been to use Itria’s technique for polarity encoding signals
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`generated by such impulsive sources.
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`WesternGeco’s response to this overwhelming prima facie case is to argue
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`against straw men. Its primary argument is that claim 1 would not have been
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`obvious because neither Silverman nor Itria alone teaches the sole disputed
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`element, 1(c). See Paper 15 (“POR”) 36-42. But as the Board pointed out in its
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`Institution Decision, “the test for obviousness is not whether the claimed invention
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`3
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`
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`is expressly suggested in any one or all of the references, but whether the claimed
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`subject matter would have been obvious to those of ordinary skill in the art in light
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`of the combined teachings of those references.” Paper 10 (“Institution Decision”)
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`18 (citing In re Keller, 642 F.3d 413, 425 (C.C.P.A. 1981)). WesternGeco neither
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`acknowledges this controlling standard nor advances an argument that the Board
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`committed legal error.
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`The proper question is not whether every element of claim 1 can be found in
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`one or the other reference, but whether it would have been obvious to combine the
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`references and, if so, whether the resulting combination fulfills each element of
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`claim 1. WesternGeco cannot dispute that the combination of Silverman and Itria
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`fulfills element 1(c) along with all the other undisputed elements of the claim; the
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`combination involves activating source elements according to an activation
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`sequence selected to enable separation of sources.
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`Unable to rebut this point, WesternGeco seeks to save the claim by imposing
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`a limiting claim construction and attempting to import a limitation from an
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`embodiment in the specification. POR 42-43. Unfortunately for WesternGeco, its
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`new alleged claim limitation—a time delay between sources, as well as between
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`source elements—appears nowhere in the claim language. Similarly, nothing in
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`the patent “teaches that time delays between sources are necessary for all
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`embodiments” as WesternGeco claims. POR 42.
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`4
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`
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`The reason WesternGeco advances for why time delays between sources are
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`supposedly necessary is so that the positive and negative polarity signals “arrive at
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`the receivers at the same time.” Ex. 2003 (“Stephen Decl.”) ¶ 104. But it is
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`undisputed that when the signals arrive at the receivers—and whether the signals
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`arrive at the receivers at the same time—depends on the distance between the
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`sources and receivers, and thus the locations of the sources. At his deposition, Dr.
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`Stephen admitted that he had assumed the sources are in nearly the same location
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`as one another, compared to the receiver array—despite the fact that the claims do
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`not specify such a limitation and placing the sources near one another largely
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`undermines the purpose of simultaneous shooting. See Stephen Depo. Tr. 71:22-
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`72:2. Dr. Stephen admitted that he had never considered what would happen if the
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`receivers were spaced apart, as expressly contemplated by de Kok, Ex. 1001 Fig. 4,
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`and it is clear that his proffered reasoning would not hold up in that scenario. See
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`infra Part IV. And while WesternGeco claims Dr. Lynn admitted to the existence
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`of its alleged time delay requirement, his testimony only addressed the
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`embodiment depicted in de Kok’s Figure 1; he was never asked whether such a
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`time delay is always necessary or is required by the claims. See Exhibit 2004
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`(“Lynn Depo. Tr.”) 50:6-52:10.
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`WesternGeco’s other arguments fare no better. Silverman does not teach
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`away from the use of impulsive sources for simultaneous shooting, POR 48-49;
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`5
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`
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`rather, as the Board recognized, Silverman merely extols the virtues of
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`simultaneous shooting compared to “conventional,” “successive” shooting. See
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`Institution Decision 18-19; Ex. 1003 at 7:14-31. Nor are land and marine
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`surveying “divorced” such that the POSA would have ignored land-based sources
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`when seeking to develop an improved marine surveying technique. POR 35-36.
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`WesternGeco’s own expert has experience in both land and marine surveying, and
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`the main professional society of geophysicists “includes geophysicists who work
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`primarily on land, geophysicists who work primarily in the water, and
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`geophysicists who work in both contexts.” Stephen Depo. Tr. 170:15-171:7,
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`175:10-176:18; 178:10-14. In fact, the fields are closely analogous, and it is
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`common to adapt techniques from land to marine surveys, as WesternGeco itself
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`has argued in other proceedings.
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`In sum, WesternGeco’s Patent Owner Response fails to rebut the prima facie
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`case of obviousness that PGS made out in its Petition. Because the obvious
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`combination of Silverman and Itria meets the limitations of claim 1, and because
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`WesternGeco has failed to defend any other of the challenged claims, the Board
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`should find claims 1-13 of the de Kok patent unpatentable and cancel them.
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`II. WESTERNGECO DOES NOT DISPUTE ANY ELEMENT OF
`CLAIM 1 EXCEPT 1(C).
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`Claim 1 recites a preamble and four elements labeled (a)-(d). Ex. 1001 at
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`8:28-44. PGS’s Petition explained how the recited method would have been
`6
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`
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`obvious over the disclosures of Silverman and Itria. See Pet. 32-38; Lynn Decl.
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`¶ 124-142. Because WesternGeco disputed only element (c), the Board found in
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`its Institution Decision that PGS had “presented sufficient evidence to support a
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`finding that [the other] limitations are disclosed by Silverman and Itria.”
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`Institution Decision 15. WesternGeco still does not dispute the obviousness of the
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`preamble or elements (a), (b), or (d) in its Patent Owner Response. See POR 34-
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`52; Stephen Depo. Tr. 129:8-13, 129:18-21, 130:20-131:6.
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`WesternGeco has therefore waived any argument that the claims are
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`patentable on the basis of any of those elements. Paper 11 (Scheduling Order) 6
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`(“[A]ny arguments for patentability not raised in the response will be deemed
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`waived.”); see, e.g., inContact, Inc. v. Microlog Corp., IPR2015-00560, Paper 21,
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`at 44-45 (PTAB July 28, 2016); MasterImage 3D, Inc. v. RealD Inc., IPR2015-
`
`00040, Paper 85, at 45 (PTAB April 14, 2016). If the Board finds that it would
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`have been obvious to perform a method that fulfills element 1(c), it must find that
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`claim 1 as a whole would have been obvious.
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`III. WESTERNGECO’S CENTRAL ARGUMENT RESTS ON A FLAWED
`UNDERSTANDING OF OBVIOUSNESS.
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`WesternGeco’s whole case turns on its contention that claim element 1(c)
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`would not have been obvious to the POSA over Silverman and Itria.
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`WesternGeco’s primary argument on that point is that the claims would not have
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`been obvious because “Silverman and Itria fail to teach using an activation
`7
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`sequence to enable source separation.” POR 36; see generally id. 36-42.
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`WesternGeco claims that Silverman teaches separation of sources but not an
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`activation sequence, while Itria teaches an activation sequence but does not use it
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`to separate sources. Id. 37-42. This purportedly means neither Silverman nor Itria
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`nor the combination of the two teaches using an activation sequence to enable
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`source separation. Id.
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`WesternGeco made the very same argument in its POPR, claiming that
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`Silverman and Itria failed to teach using an activation sequence for source
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`separation because neither one individually teaches that limitation. See Paper 8
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`(“POPR”) 13-19.1 And the Board correctly rejected it; WesternGeco’s argument
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`fundamentally misconstrues the law of obviousness. “[T]he test for obviousness is
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`not whether the claimed invention is expressly suggested in any one or all of the
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`references, but whether the claimed subject matter would have been obvious to
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`those of ordinary skill in the art in light of the combined teaches of the references.”
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`Institution Decision 18 (citing Keller, 642 F.2d at 425); see also MCM Portfolio
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`LLC v. Hewlett-Packard Co., 812 F.3d 1284, 1294 (Fed. Cir. 2015).
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`1 Indeed, whole swaths of WesternGeco’s argument in Part VI.A.3 of its Patent
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`Owner Response were lifted directly from its POPR. Compare, e.g., POPR 14-15
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`(paragraphs beginning “Element 1(c) in its entirety . . .” and “This omission is
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`fatal . . .”) with POR 36-37 (same text).
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`8
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`
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`WesternGeco’s Patent Owner Response completely fails to address that point,
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`neither arguing for a different standard nor applying the standard the Board
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`articulated in its Institution Decision.
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`As the Board recognized, the proper question is not whether either one of
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`Silverman or Itria, considered individually, teaches an activation sequence that is
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`used for source separation, but whether the combination renders the use of such an
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`activation sequence obvious—in other words, whether the POSA would have
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`found it obvious to use an activation sequence for source separation in light of the
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`combined teachings of Silverman and Itria. For all the reasons PGS and Dr. Lynn
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`have explained, the answer to that question is yes. Pet. 34-37; Lynn Decl. ¶ 138-
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`142. Silverman teaches a method of using positive and negative polarity signals to
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`separate simultaneously recorded sources. Pet. 14-17; Lynn Decl. ¶¶ 73-78. Itria
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`teaches a method for using a vertical array of source elements to create positive
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`and negative polarity signals using impulsive sources. Pet. 10; Lynn Decl. ¶¶ 57-
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`61. And as Dr. Lynn testified, the POSA would have recognized that Itria’s way of
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`polarity-encoding the signals generated by impulsive sources made it possible to
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`use Silverman’s source-separation method in the context of towed marine seismic
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`surveys. Pet. 35-37; Lynn Decl. ¶¶ 132-34. The POSA, moreover, indisputably
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`would have been motivated to do so in light of the commercial benefits of
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`9
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`
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`simultaneous shooting and the unavailability of marine vibratory sources. See
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`supra pp. 3-4; Pet. 35-38; Lynn Decl. ¶¶ 130-142.
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`IV. WESTERNGECO’S ATTEMPT TO IMPOSE A NARROWING
`CLAIM CONSTRUCTION FAILS.
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`A. Unable to rebut PGS’s case, WesternGeco attempts to save the claims
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`by backdooring an extra limitation into the claims—without expressly calling for a
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`claim construction that requires it—and then arguing that PGS failed to
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`demonstrate that WesternGeco’s imaginary limitation would have been obvious.
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`Specifically, WesternGeco argues that, in addition to requiring a “series of time
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`delays” between the source elements, claim 1 of de Kok requires a particular time
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`delay between the sources as well. See POR 22-23, 42-43.
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`The Board should reject this argument. The plain language of claim 1
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`makes no mention of a time delay between sources; to the contrary, claim 1 recites
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`“activating the plurality of source elements of each of said sources according to an
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`activation sequence,” making clear that the required time delays are between the
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`“source elements” and not the sources themselves. Ex. 1001 at 8:37-39 (emphasis
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`added). There is simply no requirement in claim 1 for time delays between the
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`sources. This is further demonstrated by claim 16, which pertains to de Kok’s
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`wholly separate time-encoding embodiment and recites “activating said plurality of
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`sources according to an activation sequence” in stark contrast to claim 1’s
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`activation sequence of source elements. Ex. 1001 at 9:33-35 (emphasis added).
`10
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`
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`WesternGeco knew full well how to require a delay between sources. It did not do
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`so in claim 1. Compare Unwired Planet, LLC v. Apple Inc., 829 F.3d 1353, 1358-
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`59 (Fed. Cir. 2016).
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`The prosecution history, too, refutes WesternGeco’s suggestion. Claim 1
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`originally recited “activating at least one of said plurality of sources according to
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`an activation sequence.” Ex. 1014 at 84 (emphasis added). After a prior art
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`rejection, WesternGeco amended the claim to focus on source elements, replacing
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`the phrase “at least one of said plurality of sources” with the phrase that now
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`appears: “said plurality of source elements of each of said sources.” Ex. 1014 at
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`84 (emphasis added). Compare Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d
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`1314, 1323-24 (Fed. Cir. 2003).
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`B. Despite having no textual basis for its new claim construction,
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`WesternGeco suggests that the time delay between sources is nonetheless required
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`by the claim because “the ’944 patent teaches that time delays between sources are
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`necessary for all embodiments, including its polarity-encoding embodiments.”
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`POR 42. The patent teaches nothing of the sort. WesternGeco cites no evidence in
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`its POR, see id.; see also id. 22-23, and de Kok nowhere states, that time delays
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`between sources (as compared to source elements) are a requirement of polarity
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`encoding or claim 1. The patent merely discloses such time delays in passing, as a
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`feature of one embodiment in the specification. See Ex. 1001 at 4:11-13, 4:21-24,
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`11
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`
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`Figs. 1A, 1B.
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`WesternGeco’s only evidence on this point, therefore, is expert testimony
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`that was based on an incomplete analysis and is simply not credible. Its expert, Dr.
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`Stephen, asserted that time delays between sources are necessary “so that the
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`positive and negative polarity signals arrive at the receivers at the same time which
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`is necessary to ‘enable separation of simultaneously recorded energy sources.’”
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`Stephen Decl. ¶ 104. This requirement appears to have been invented from whole
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`cloth. Nowhere does the patent teach that positive and negative polarity signals
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`must arrive at the receivers at the same time, and Dr. Stephen’s own testimony
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`about the patent proves that there is no such requirement.
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`As Dr. Stephen admitted, the figures on which he bases his claim—Figures
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`1A and 1B—depict positive and negative signals arriving simultaneously at an
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`“imaginary, fictional receiver directly below the sources.” Stephen Depo. Tr.
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`17:14-19. He acknowledged that “[i]f the receiver were at the surface horizontally
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`separated from the [sources]”—as it would be in a real seismic survey—the signal
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`pattern would be different. Stephen Depo. Tr. 17:9-23.
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`In any real-world application, the signals would not be received
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`simultaneously by more than a few of the receivers no matter what time delay, if
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`any, were used because the sources would be in different locations relative to the
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`receivers. As Dr. Lynn explained, the travel time of a seismic signal depends on
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`12
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`
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`the distance, or “offset,” between the source and the receiver. Lynn Decl. ¶¶ 40-
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`41. When two sources are at opposite ends of the long cables carrying the
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`receivers, the receivers nearest each source will register that source’s signals first,
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`while the receivers farthest from each source will register that source’s signals last,
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`as shown in Beasley’s Fig. 14:
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`
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`Ex. 1005 Fig. 14; see Lynn Decl. ¶¶ 81-82. And if two signals arrive
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`simultaneously at some receivers (such as those with equal offset from each
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`source), they will not arrive simultaneously at other receivers.
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`Ignoring this reality, Dr. Stephen “assum[ed] the sources are – although not
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`at the same place, they’re close to being at the same place as in Figure 2 of de Kok
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`where source 203 and 205 are both [towed] from the aft end of a ship.” Id. 71:22-
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`72:2. In other words, Dr. Stephen assumed the sources were sufficiently close
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`together that their signals would take the same amount of time to reach each of the
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`13
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`
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`receivers in the array. There is no basis for that assumption. To the contrary, de
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`Kok expressly contemplates placing sources at different locations—for example, at
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`opposite ends of the streamer cables, Ex. 1001 Fig. 4—and claim 1 requires that
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`the sources be placed at plural “locations within a seismic survey area,” not a
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`single location. Indeed, simultaneously imaging the ocean subsurface from
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`different locations is one of the benefits of simultaneous shooting. Lynn Depo. Tr.
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`76:6-9 (referring to the benefit of “wider distribution of source receiver
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`azimuths”).
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`Dr. Stephen admitted that he had not considered what would happen if the
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`sources were more distant from one other. Stephen Depo. Tr. 79:22-81:8; 85:16-
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`90:14. And while Dr. Stephen insisted that he would “rather not guess” what
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`would happen in that situation, id. 80:24-81:8, it is clear that his reasoning would
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`fall apart.
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`C. Attempting to elide this common understanding in the art and its own
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`expert’s testimony, WesternGeco repeatedly contends that Dr. Lynn somehow
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`admitted that a time delay between sources is required by all de Kok embodiments.
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`E.g., POR 18, 22-23, 42. Not so. Dr. Lynn explained that any additional travel
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`time of the negative polarity signal can be accounted for in post-processing, rather
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`than introducing a delay between the sources in the field. As he explained, “even
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`the downgoing pulse will be referenced to how many microseconds, so it’s
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`14
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`
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`adjusted to as if it had gone on at the sea surface, and likewise for the negative
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`polarity, but that’s a processing step.” Lynn Depo. Tr. 48:11-19. This testimony
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`was never cited in WesternGeco’s Patent Owner Response.
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`In the testimony that WesternGeco did choose to cite, Dr. Lynn merely
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`agreed that introducing time delays in acquisition is necessary to create “perfect
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`alignment in time,” and thus perfect cancellation and reinforcement. See id. 50:18-
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`51:5, 51:18-52:10. The specific example Dr. Lynn was addressing may achieve
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`that alignment—with two sources that are equidistant from the receiver under
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`consideration—but that is a far cry from a requirement that a time delay between
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`the sources is always necessary to carry out the invention, or that a time delay
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`between sources is a requirement of the claims. Dr. Lynn was never asked whether
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`either such requirement existed, see Lynn Depo. Tr. 50:6-52:10, and unsurprisingly
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`did not opine in his Declaration about a limitation WesternGeco invented thereafter
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`that appears nowhere in the specification or claims.
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`Dr. Stephen’s argument, moreover, rests on the faulty premise that time
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`delays are necessary to achieve perfect cancelation of the unwanted source. But
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`that is an impossibility anyway in de Kok’s method. Even with perfect alignment
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`of the signals, de Kok’s polarity encoding embodiment does not create perfect
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`cancellation and reinforcement of sources. As Dr. Stephen agreed in his
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`deposition, the signals of a negative polarity activation and a positive polarity
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`15
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`
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`activation are not identical; a positive polarity signal has one reinforced primary
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`impulse followed by two unreinforced opposite-polarity impulses, and a negative
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`polarity activation has two opposite polarity impulses preceding the reinforced
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`primary impulse. Stephen Depo. Tr. 49:7-20.
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`
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`Ex. 1001 Figs. 1A, 1B. Summing these signals eliminates the primary components
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`of the signals, which are aligned in time, but it does not eliminate the unreinforced
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`components, which fall on either side of the primary components and are not time-
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`aligned. The source that alternates polarity from shot to shot will never perfectly
`16
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`
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`cancel or reinforce itself. In the absence of time alignment, there may be a
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`somewhat different imperfect signal, but this does not somehow make the method
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`impossible.
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` In short, WesternGeco’s proposed limiting construction rests on a faulty
`
`assumption, a mischaracterization of Dr. Lynn’s testimony, and flawed analysis
`
`from its own expert, all in spite of the plain text of the claim. The Board should
`
`reject WesternGeco’s unsupported attempt to change the meaning of the claim.
`
`V. WESTERNGECO’S ARGUMENTS ON MOTIVATION TO
`COMBINE FAIL.
`
`A.
`
`Silverman Does Not Teach Away from or Disparage Simultaneous
`Shooting with Impulsive Sources.
`
`WesternGeco argued strenuously in its POPR that Itria and Silverman were
`
`“fundamentally incompatible” because Silverman “explicitly teaches that Itria’s
`
`explosive sources could not be used with Silverman’s method if those sources are
`
`fired simultaneously or contemporaneously.” POPR 20. This argument was based
`
`on a single sentence in Silverman that, according to WesternGeco, stated that
`
`“‘explosive shots, or vibrators [must be] recorded successively, rather than
`
`cotemporaneously.’” POPR 20 (quoting Ex. 1003 at 7:14-31) (alteration and
`
`emphasis in original). But as the Board pointed out in its Institution Decision,
`
`rejecting the identical argument WesternGeco advances here, WesternGeco’s
`
`POPR deliberately misquoted the relevant passage; the actual text of Silverman
`
`17
`
`
`
`states that “[t]he type of operation shown in FIG. 3 [i.e., 3-D surveying] can be
`
`carried out with conventional explosive shots, or vibrators recorded successively,
`
`rather than cotemporaneously.” Ex. 1003 at 7:26-28; Institution Decision 19.
`
`WesternGeco now attempts to revive this argument, claiming that a “POSA
`
`would understand Silverman’s disclosure as stating that explosive shots cannot be
`
`used for simultaneous operation but instead can only be used for successive
`
`operation, which has a ‘greater operating time.’” POR 48. Even without
`
`WesternGeco’s attempts to doctor Silverman’s text, this argument fails. Silverman
`
`says nothing about whether impulsive sources can or cannot be used for
`
`simultaneous shooting; it merely extols the virtues of simultaneous shooting over
`
`“successive[]” operation of sources, which was then “conventional.” See Ex. 1003
`
`at 7:26-31.
`
`Moreover, even if the POSA somehow read Silverman to say that impulsive
`
`sources cannot be used for simultaneous shooting—an implausible interpretation
`
`the Board already correctly rejected—the POSA’s understanding of whether
`
`impulsive sources can be used for simultaneous shooting would have changed
`
`upon reading Itria, which teaches precisely how to create positive and negative
`
`polarity signals with impulsive source arrays. This understanding would have been
`
`further supported by the more-recent Beasley reference, which undisputedly
`
`teaches the use of impulsive sources (airguns) to perform simultaneous shooting in
`
`18
`
`
`
`a marine seismic survey. Ex. 1005. By the priority date, therefore, the POSA
`
`would not have been deterred from practicing the claimed invention.
`
`The Federal Circuit has explained that “obviousness must be determined in
`
`light of all the facts, and there is no rule that a single reference that teaches away
`
`will mandate a finding of nonobviousness.” Medichem, S.A. v. Rolabo S.L., 437
`
`F.3d 1157, 1165 (Fed. Cir. 2006). Where two references disagree about the
`
`practicality of a given technique, the Board “must consider the degree to which one
`
`reference might accurately discredit another.” In re Young, 927 F.2d 588, 591
`
`(Fed. Cir. 1991). Here, even if Silverman taught away from using impulsive
`
`sources for simultaneous shooting, that teaching would have been discredited and
`
`outweighed by Itria and Beasley.
`
`B. WesternGeco’s Arguments Regarding Analogous Arts Are
`Without Merit.
`
`As PGS has explained, the POSA would have been motivated to combine
`
`Itria and Silverman to practice a polarity-encoding method for the marine
`
`environment, where vibratory sources were not available. Pet. 37; Ex. 1002 ¶ 123,
`
`140-42. WesternGeco repeatedly suggests that a POSA would not have combined
`
`Silverman and Itria in the marine environment because both references pertain
`
`primarily to land-based seismic surveying, which it calls a separate field that is
`
`“divorced from” marine surveying. POR 36. Similarly, at his deposition, Dr.
`
`Stephen ended seemingly every answer about Itria by reciting the mantra that Itria
`19
`
`
`
`is directed to explosive sources in a borehole on land. E.g., Stephen Depo. Tr.
`
`93:3-4, 93:12-13, 94:10-11, 98:20-21, 102:18-19, 103:20-21, 106:16-18.
`
`But WesternGeco has never identified what difference between land and
`
`marine surveying would lead a POSA to ignore the teachings of Silverman or Itria
`
`in marine seismic work. Both Itria and de Kok involve vertical arrays of impulsive
`
`source elements. As Dr. Lynn explained, the controlled sequence of time delays in
`
`each reference is the same: source elements are triggered just as the wavefront
`
`arrives at from the prior source element. Lynn Decl. ¶¶ 138-139. The effect of this
`
`sequence is the same, enhancing the upgoing or downgoing wavefront and
`
`therefore enhancing the positive or negative polarity signal. Id. De Kok was not
`
`even the first to adapt vertically distributed source elements to the marine context;
`
`Smith taught such vertical arrays several years before the priority date. Ex. 1006.2
`
`The same is true for Silverman and de Kok’s polarity encoding scheme.
`
`Both references disclose “the same operation sequence of polarities” to separate
`
`the signals from two sources, where one source has constant positive polarity and
`
`the other alternates between positive and negative. Stephen Depo. Tr. 126:21-
`
`2 PGS served supplemental evidence proving that Smith was publicly available no
`
`later than 1984, Exs. 1017-1019, which WesternGeco has declined to contest. See
`
`Institution Decision 10 n.1; Valeo North America, Inc. v. Magna Electronics, Inc.,
`
`IPR2014-00220, Paper 59, at 10-11 (PTAB May 28, 2015).
`
`20
`
`
`
`128:3; compare Ex. 1001 Fig. 2 with Ex. 1003 Fig 1.
`
`De Kok Fig. 2 (excerpt)
`
`
`
`
`
`Silverman Fig. 1 (excerpt)
`
`Both Silverman and de Kok teach summation of sequential recordings to separate
`
`the signal contributions of each individual source.
`
`WesternGeco’s argument boils down to the proposition that a POSA would
`
`have ignored Silverman and Itria because of the superficial differences between
`
`land and marine surveying. All the evidence is to the contrary. As Dr. Stephen
`
`admitted, the main professional society, the Society for Exploration Geophysics,
`
`“includes geophysicists who work primarily on land, geophysicists who work
`
`primarily in the water, and geophysicists who work in both contexts.” Stephen
`
`Depo. Tr. 178:10-14. Both Dr. Stephen and Dr. Lynn have experience in both
`21
`
`
`
`kinds of seismic surveying. Id. 170:15-171:7, 175:10-176:18; Lynn Decl. ¶ 12.
`
`WesternGeco itself
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