Case 4:18-cv-00803 Document 57 Filed on 04/26/19 in TXSD Page 1 of 49
`United States District Court
`Southern District of Texas
`ENTERED
`April 26, 2019
`David J. Bradley, Clerk
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`CCONOCOPHILLIPS COMPANY,
`
`Plaintiff,
`
`v.
`
`IN-DEPTH COMPRESSIVE SEISMIC,
`INC., and IN-DEPTH GEOPHYSICAL
`INC.,
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`CIVIL ACTION NO. H-18-0803
`
`MEMORANDUM OPINION AND ORDER
`
`This action is brought by plaintiff, ConocoPhillips Company,
`
`against defendants, In De~pth Compressive Seismic Inc. and In-Depth
`
`Geophysical, Inc., under the Patent Laws of the United States, 35
`
`U.S. C.
`
`§ 1, et seq.,
`
`for
`
`infringement of four United States
`
`Patents: 1
`
`(1) U.S. Patent No. 8,897,094
`
`("the
`
`'094 Patent"),
`
`entitled "Marine Seismic Data Acquisition Using Designed Non-
`
`Uniform Streamer Spacing," issued on November 25, 2014; 2
`
`(2) U.S.
`
`Patent No. 9, 632, 193 ("the
`
`'193 Patent") , entitled "Compressive
`
`Sensing," issued on April 25, 2017; 3
`
`(3) U.S. Patent No. 9,823,372
`
`("the
`
`'372 Patent")
`
`entitled,
`
`"Controlled Spaced Streamer
`
`1 Plaintiff's Complaint and Request for Preliminary Injunction
`("Plaintiff's Complaint"), Docket Entry No. 1.
`
`2Exhibit 1 to Plaintiff's Complaint, Docket Entry No. 1-2.
`
`3Exhibit 2 to Plaintiff's Complaint, Docket Entry No. 1-3.
`
`In-Depth Exhibit IDG-1017 p. 1
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`Case 4:18-cv-00803 Document 57 Filed on 04/26/19 in TXSD Page 2 of 49
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`Acquisition," issued on November 21, 2017; 4 and
`
`( 4) U.S. Patent
`
`No.
`
`9,846,248
`
`("the
`
`'248 Patent"), entitled "Seismic Data
`
`Acquisition Using Designed Non-Uniform Receiver Spacing," issued on
`
`December 19, 2017. 5 Plaintiff has also asserted claims against the
`
`defendants for false and misleading statements under the Lanham
`
`Act, 15 U.S.C. § 1125. Plaintiff and defendants disagree about the
`
`meaning of nine terms usE~d in the '248 Patent and three terms used
`
`in the
`
`'193 Patent and ask the court to construe the disputed
`
`terms. 6
`
`See Markman v. Westview Instruments, Inc., 116 S. Ct.
`
`1384, 1387
`
`(1996)
`
`("We hold that the construction of a patent,
`
`including terms of art within its claim, is exclusively within the
`
`province of the court.").
`
`In support of its preferred constructions plaintiff has filed
`
`Plaintiff's Opening Claim Construction Brief ("Plaintiff's Opening
`
`Brief") (Docket Entry No. 40), in response to which defendants have
`
`filed Defendant's Response
`
`(Docket Entry No. 41) , plaintiff has
`
`replied in Plaintiff's Reply Claim Construction Brief ("Plaintiff's
`
`4Exhibit 3 to Plaintiff's Complaint, Docket Entry No. 1-4.
`
`5Exhibit 4 to Plaintiff's Complaint, Docket Entry No. 1-5.
`
`6The parties originally disagreed about the meaning of two
`additional terms used in the
`'094 Patent and the
`'372 Patent,
`respectively. But defendants have agreed to the plain and ordinary
`meaning
`for
`those
`terms.
`See Defendants' Responsive Claim
`Construction Brief ("Defendants' Response"), Docket Entry No. 41,
`p. 5. Page numbers for docket entries in the record refer to the
`pagination
`inserted at
`the
`top of
`the page by
`the court's
`electronic filing system, CM/ECF.
`
`-2-
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`In-Depth Exhibit IDG-1017 p. 2
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`Reply")
`
`(Docket Entry No. 4 4) , and defendants have replied in
`
`Defendants' Claim Construction Sur-Reply ("Defendants' Sur-Reply")
`
`(Docket Entry No. 46). The parties have also filed their P.R. 4-3
`
`Joint Claim Construction and Prehearing Statement ("Joint Claim
`
`Construction Statement") (Docket Entry No. 38). On March 28, 2019,
`
`the court conducted a hearing at which
`
`the parties presented
`
`argument on
`
`four of
`
`the disputed
`
`terms. 7
`
`After
`
`the hearing
`
`defendants filed Defendants' Supplemental Briefing after Markman
`
`Hearing
`
`(Docket Entry No. 50), and plaintiff filed Plaintiff
`
`ConocoPhillips Company's Supplemental Briefing after Markman
`
`Hearing (Docket Entry No. 51). The proper construction of eleven
`
`claim terms remains in dispute.
`
`The parties also dispute the
`
`effect of the "preamblE?" on one claim term. After carefully
`
`considering
`
`the parties'
`
`arguments,
`
`the evidence,
`
`and
`
`the
`
`applicable law, the court construes the disputed terms as stated
`
`below.
`
`I. Legal Standard for Cla~ Construction
`
`In Markman, 116 S. Ct. at 1387,
`
`the United States Supreme
`
`Court held that the construction of patent claims is a matter of
`
`law exclusively for the court. When
`
`the parties dispute the
`
`meaning of particular claim terms,
`
`7See Minutes, Docket Entry No. 47. See also Markman Hearing
`Transcript, Docket Entry No. 52.
`
`-3-
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`the
`to decide which of
`is not
`task
`judge's
`the
`Instead
`the
`judge must
`is correct.
`adversaries
`independently assess the claims, the specification, and
`if necessary
`the prosecution history,
`and relevant
`extrinsic evidence, and declare
`the meaning of
`the
`claims.
`
`Exxon Chemical Patents, Inc. v. Lubrizol Corp., 64 F.3d 1553, 1556
`
`(Fed. Cir. 1995), cert. denied, 116 S. Ct. 2554 (1996).
`
`Courts begin claim construction by ascertaining the "ordinary
`
`and customary meaning" of disputed claim terms. Phillips v. AWH
`
`Corporation, 415 F. 3d 1303, 1312 (Fed. Cir. 2005)
`
`(en bane), cert.
`
`denied, 126 S. Ct. 1332
`
`(2006)
`
`(quoting Vitronics Corp. v.
`
`Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)).
`
`"[T]he
`
`ordinary and customary meaning of a claim term is the meaning that
`
`the term would have to a person of ordinary skill in the art in
`
`question at the time of the invention, i.e., as of the effective
`
`filing date of the patent application."
`
`Id. at 1313
`
`(citing
`
`Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc.,
`
`381 F.3d 1111, 1116 (Fed. Cir. 2004)).
`
`"[T]he person of ordinary
`
`skill in the art is deemed to read the claim term not only in the
`
`context of the particular claim in which the disputed term appears,
`
`but
`
`in
`
`the context of
`
`the entire patent,
`
`including
`
`the
`
`specification."
`
`Id.
`
`In some cases, the ordinary meaning of claim language as
`understood by a person of skill in the art may be readily
`apparent even to lay judges, and claim construction in
`such cases involves little more than the application of
`the widely accepted meaning of commonly understood words.
`See Brown v. 3M, 265 F.3d 1349, 1352
`(Fed. Cir. 2001)
`(holding that the claims did "not require elaborate
`
`-4-
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`In such circumstances, general purpose
`interpretation") .
`dictionaries may be helpful.
`In many cases that give
`rise to litigation, however, determining the ordinary and
`customary meaning of the claim requires examination of
`terms that have a particular meaning in a field of art.
`Because the meaning of a claim term as understood by
`persons of skill in the art is often not immediately
`apparent, and because patentees frequently use
`terms
`idiosyncratically,
`the court looks to "those sources
`available to the public that show what a person of skill
`in the art would have understood disputed claim language
`to mean."
`Innova, 381 F.3d at 1116.
`Those sources
`include "the words of
`the claims
`themselves,
`the
`remainder of the specification, the prosecution history,
`and extrinsic evidence concerning relevant scientific
`principles, the meaning of technical terms, and the state
`of the art."
`
`Id. at 1314 (quoting Innova, 381 F.3d at 1116).
`
`"Generally speaking·, [courts] indulge a
`
`'heavy presumption'
`
`that a claim term carries its ordinary and customary meaning." CCS
`
`Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir.
`
`2002).
`
`"For example,
`
`:if an apparatus claim recites a general
`
`structure (~, a noun) without limiting that structure to a
`
`specific subset of structures (~, with an adjective),
`
`[the
`
`court] will generally construe the term to cover all known types of
`
`that structure that are supported by the patent disclosure."
`
`Renishaw PLC v. Marposs Soc:ieta' per Azioni, 158 F.3d 1243, 1250
`
`(Fed. Cir. 1998).
`
`See, ~' Virginia Panel Corp. v. MAC Panel
`
`Co., 133 F.3d 860, 865-66 (Fed. Cir. 1997), cert. denied, 119 S.
`
`Ct. 52 (1998)
`
`(term "reciprocating" is given its ordinary meaning
`
`and not limited to mere linear reciprocation); Sjolund v. Musland,
`
`847 F.2d 1573, 1581-82 (Fed. Cir. 1988) (refusing to limit "baffle"
`
`to rigid baffles and "panel" to panels of lattice construction) .
`
`-5-
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`There are several exceptions to the general rule that claim
`
`terms carry their ordinary and customary meaning. A "claim term
`
`will not receive its ordinary meaning if the patentee acted as his
`
`own
`
`lexicographer and clearly set forth a definition of
`
`the
`
`disputed claim term in either the specification or prosecution
`
`history."
`
`CCS Fitness, 288 F.3d at 1366.
`
`See also Hormone
`
`Research Foundation, Inc. v. Genentech, Inc., 904 F.2d 1558, 1563
`
`(Fed. Cir. 1990), cert. dismissed, 111 S. Ct. 1434 (1991) ("It is
`
`a well-established axiom in patent law that a patentee is free to
`
`be his or her own lexicographer .
`
`.
`
`. and may use terms in a manner
`
`contrary to or inconsistent with one or more of their ordinary
`
`meanings.") .
`
`A claim term may also be interpreted more narrowly
`
`than it otherwise would be "if the intrinsic evidence shows that
`
`the patentee distinguished that term from prior art on the basis of
`
`a particular embodiment, expressly disclaimed subject matter, or
`
`described a particular embodiment as important to the invention."
`
`I d. at 1366-67 (citing Spectrum International, Inc. v. Sterili te
`
`Corp., 164 F.3d 1372, 1378
`
`(Fed. Cir. 1998)
`
`(limiting term's
`
`ordinary meaning based on statements
`
`that distinguished
`
`the
`
`invention from prior art); SciMed Life Systems, Inc. v. Advanced
`
`Cardiovascular Systems, Inc., 242 F.3d 1337, 1343-44
`
`(Fed. Cir.
`
`2001)
`
`(limiting claim term based in part on statements in the
`
`specification indicatinq that "all embodiments" of the claimed
`
`-6-
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`invention used a particular structure) ; and Toro Co. v. White
`
`Consolidated Industries, Inc., 199 F.3d 1295, 1301-02 (Fed. Cir.
`
`1999)
`
`(limiting claim term based in part on statements in the
`
`specification describing a particular structure as "important to
`
`the invention")).
`
`"A claim term also will not have its ordinary
`
`meaning if the term 'chosen by the patentee so deprive[s] the claim
`
`of clarity' as to require resort to the other intrinsic evidence
`
`for a definite meaning."
`
`Id. at 1367 (quoting Johnson Worldwide
`
`Associates, Inc. v. Zebco Corp., 175 F.3d 985, 990
`
`(Fed. Cir.
`
`1999)). And "[a]s a matter of statutory authority, a claim term
`
`will cover nothing more than the corresponding structure or step
`
`disclosed in the specification, as well as equivalents thereto, if
`
`the patentee phrased the claim in step- or means-plus-function
`
`format."
`
`Id. (citing 35 U.S.C. § 112 <J[ 6).
`
`Courts rely on two types of evidence when considering claim
`
`construction disputes:
`
`(1) intrinsic evidence (i.e., the language
`
`of the claim itself, the patent specification, and the prosecution
`
`history of the patent) and (2) extrinsic evidence (i.e., evidence
`
`external
`
`to
`
`the patent
`
`and prosecution history
`
`such
`
`as
`
`dictionaries, treatises, and expert and inventor testimony). CCS
`
`Fitness, 288 F.3d at 1366.
`
`-7-
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`A.
`
`Intrinsic Evidence
`
`The language of the claim is "'of primary importance, in the
`
`effort to ascertain precisely what it is that is patented."
`
`Phillips, 415 F.3d at 1312 (quoting Merrill v. Yeomans, 94 U.S.
`
`568, 570 (1876)). This is "[b]ecause the patentee is required to
`
`'define precisely what his invention is.'" Id. (quoting White v.
`
`Dunbar, 7 S. Ct. 7 2, 7 ~i
`
`( 18 8 6) ) . Courts, therefore, carefully
`
`consider the context within which a particular term is used in an
`
`asserted claim, as well as how the term is used in other claims
`
`within the same patent.
`
`Id. at 1314. Other intrinsic sources can
`
`also be helpful. For example, "the specification 'is always highly
`
`relevant to the claim construction analysis'" and can be either
`
`dispositive or "the single best guide to the meaning of a disputed
`
`term." Id. at 1315 (quoting Vitronics, 90 F.3d at 1582). See also
`
`CVI/Beta Ventures, Inc. v. Tura LP, 112 F.3d 1146, 1153 (Fed. Cir.
`
`1997), cert. denied sub nom. Marchon Eyewear v. Tura LP, 118 S. Ct.
`
`1039
`
`(1998)
`
`("[T]he patent drawings are highly relevant
`
`in
`
`construing the . . . limitations of the claims."). While "[i]t is
`
`therefore entirely appropriate for a court, when conducting claim
`
`construction, to rely heavily on the written description [i.e., the
`
`specification] for guidance as to the meaning of the claims,"
`
`Phillips, 415 F.3d at 1317, it is important that the specification
`
`be used only to interpret the meaning of a claim, not to confine
`
`patent claims to the embodiments described therein.
`
`Id. at 1323
`
`-8-
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`("although
`
`the
`
`specification often describes very specific
`
`embodiments of the invention, we have repeatedly warned against
`
`confining the claims to those embodiments").
`
`The patent's prosecution history should also be considered
`
`when offered for purposes of claim construction. Phillips, 415
`
`F.3d at 1317. The prosecution history "consists of the complete
`
`record of the proceedings before the PTO and includes the prior art
`
`cited during
`
`the examination of
`
`the patent."
`
`Id.
`
`"[T]he
`
`prosecution history can often inform the meaning of the claim
`
`language by demonstrating how the inventor understood the invention
`
`and whether the inventor limited the invention in the course of
`
`prosecution, making
`
`the claim scope narrower
`
`than it would
`
`otherwise be."
`
`But "because
`
`the prosecution history
`
`represents an ongoing negotiation between
`
`the PTO
`
`and
`
`the
`
`applicant, rather than the final production of that negotiation, it
`
`often lacks the clarity of the specification and thus is less
`
`useful for claim construction purposes."
`
`Id.
`
`B.
`
`Extrinsic Evidence
`
`The court may also look to extrinsic evidence,
`
`including
`
`dictionaries, treatises, and expert testimony, to help it reach a
`
`conclusion as to a term's meaning. See Phillips, 415 F.3d at 1317-
`
`18 (citing Vitronics, 90 F.3d at 1583). The court must be mindful
`
`that extrinsic evidence may only supplement or clarify -
`
`not
`
`displace or contradict -- the intrinsic evidence.
`
`Id. at 1319.
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`II. Construction of Disputed Ter.ms
`
`The parties dispute the construction of nine terms used in the
`
`'248 patent, and three terms used in the '193 patent. The disputed
`
`terms in the
`
`'24 8 patent are:
`
`( 1) "two horizontal directions,"
`
`(2) "both horizontal directions," (3) "in at least one horizontal
`
`direction," (4) "in at least one direction," (5) "deliberately non-
`
`uniform,"
`
`(6) "the deliberately non-uniform direction," (7) "the
`
`non-uniform spacing direction," (8) "the non-uniform direction,"
`
`and (9) "wherein the receivers are not aligned in at least one of
`
`the two horizontal directions." The disputed terms in the
`
`'193
`
`patent are:
`
`(1) "determining optimal sampling grid during seismic
`
`data reconstruction,"
`
`( 2) "deriving a mutual coherence proxy,
`
`wherein the mutual coherence proxy is a proxy for mutual coherence
`
`when S is over-complete and wherein the mutual coherence proxy is
`
`exactly the mutual coherence when S is a Fourier transform," and
`
`(3) "stochastic global optimization method."
`
`A.
`
`Ter.ms from the '248 Patent
`
`1.
`
`"Two Horizontal Directions" and Related Terms
`
`(a)
`
`"Two Horizontal Directions"
`
`Disputed
`Term
`
`Patent
`
`Plaintiff's
`Construction
`
`Defendants'
`Construction
`
`"two
`horizontal
`directions"
`
`'248 claims
`1, 10, 14
`and 15
`
`Plain and ordinary
`meaning.
`
`Along each source or
`receiver line (in-line)
`and between each source
`or receiver line
`(cross-line).
`
`-10-
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`Citing Phillips, 415 F.3d at 1314, and asserting that "[t]he
`
`'248 Patent does not set out a special definition for
`
`'two
`
`horizontal directions,' " 8 plaintiff argues that
`
`the
`
`term "two
`
`horizontal directions"
`
`For
`is easily understood and needs no construction.
`example, looking down at a piece of paper, there are two
`horizontal directions on the paper (figuratively referred
`to as, e.g., left/right and up/down, north/south and
`east/west, or simply the "x" and "y" directions). This
`understanding of "two horizontal directions" is nothing
`more than application of the widely accepted meanings of
`these words. 9
`
`Defendants respond that their proposed construction of "two
`
`horizontal directions" to mean "along each source or receiver line
`
`(in-line) and between each source or receiver line (cross-line)" is
`
`"consistent within the context of the claims, the specification,
`
`and the prosecution history. " 10
`
`In support of their proposed
`
`construction defendants cite (1) the detailed descriptions of the
`
`arrangements in FIGS. 2-5 and 7-10 which "refer[] to spacing along
`
`each source or receiver line (also referred to as in-line) and
`
`source or receiver line spacing (i.e. between each source or
`
`receiver line-also referred to as cross-line);" 11
`
`(2) the critical
`
`question identified in the specification, i.e., "how variable can
`
`8Plaintiff's Opening Brief, Docket Entry No. 40, p. 12.
`
`9Id. at 11-12.
`
`10Defendants' Response, Docket Entry No. 41, p. 19.
`
`11 Id. at 18 (citing '248 Patent, Docket Entry No. 1-5 at 7:3,
`7-8, 48-52; 8:5-20, Table 1).
`
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`we space the lines and stations and still recover our wavefield
`
`accurately, " 12 and ( 3) statements that plaintiff made to distinguish
`
`the
`
`'248 Patent from prior art during the prosecution history,
`
`i.e., that
`
`[c]laims 1, 11 and 16 recite methods of acquiring marine
`seismic data by intentionally introducing non-uniform
`spacing between seismic receivers and/ or seismic sources.
`More specifically, the spacing between receiver
`lines can vary (59ab vs 59bc in FIG. 5) as well as the
`spacing between receivers within a receiver line (57 of
`FIG. 5), which account for
`the variation along
`two
`horizontal directions (FIG. 5 represents a top view) . 13
`
`Defendants argue that this prosecution history "confirms that the
`
`spacing along each receiver line
`
`(in-line) and between each
`
`receiver line (cross-line) accounts for the variation along two
`
`horizontal directions. " 14
`
`Plaintiff responds that "Figures 6 and 11 in the '248 patent
`
`provide undisputable
`
`intrinsic evidence
`
`that
`
`'two horizontal
`
`directions' are not
`
`limited to
`
`'in-line' or
`
`'cross-line.' " 15
`
`Plaintiff argues:
`
`Tellingly, Defendants cite Figures 2-5 and 7-10 and omit
`any reference to Figures 6 and 11 in their argument.
`Instead, they state their position is supported by
`"almost every embodiment."
`To be sure,
`the
`embodiments that Defendants fail to mention are the
`
`12 Id. (citing '248 Patent at 4:27-28)
`
`13 Id. at 18-19 (quoting Conoco' s Appeal Brief, Exhibit H, p. 4,
`Docket Entry No. 41-9, p. 5).
`
`14 Id. at 19.
`
`15 Plaintiff' s Reply, Docket Entry No. 44, p. 6.
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`embodiments shown in Figures 6 and 11 that directly
`contradict their proposed construction. 16
`
`Defendants reply that plaintiff "misapplies
`
`[defendants']
`
`construction because the specification uses source and receiver
`
`lines to describe all the figures -
`
`including figures 6 and 11
`
`where the sources and receivers are not aligned, and lines are not
`
`illustrated between
`
`the sources and receivers. " 17
`
`Defendants
`
`explain that
`
`[a] lthough figures 6 and 11 do not illustrate lines
`between the receivers, it is clear from their description
`that each includes "an inventive arrangement of lines of
`seismic receivers." Dkt. 41-3 ('248 Patent) at 3:4-6;
`20-22. Likewise, none of the figures illustrate lines
`between the sourcE! points, however,
`the figures are
`consistently referred to as
`illustrating source and
`receiver lines. Dkt. 41 at p. 14. 18
`
`After carefully considering all of the evidence the court
`
`concludes that the term "two horizontal directions" is sufficiently
`
`clear to make even resort to a dictionary unnecessary.
`
`America, Inc. v. Lamb-Weston, Inc., 358 F.3d 1371, 1373 (Fed. Cir.
`
`2004)
`
`(as a general rule ordinary English words "whose meaning is
`
`clear and unquestionable" need no further construction) . Neither
`
`party has argued the existence of a customary meaning in the art
`
`that differs from or contradicts the plain and ordinary meaning
`
`stated by
`
`the plaintiff.
`
`Nor does anything
`
`in either
`
`the
`
`16 Id. at 7.
`
`17 Defendants' Sur-Reply, Docket Entry No. 46, p. 7.
`
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`specification or
`
`the prosecution history clearly support
`
`the
`
`defendant's contention that the plaintiff intended to use the term
`
`"two horizontal directions" in a manner other than according to its
`
`plain and ordinary meaning. Although the specification discloses
`
`source and receiver lines, those lines are discussed only with
`
`respect to specific examples of the invention described in the
`
`specification, and "[a]s a general rule claims of a patent are not
`
`limited to the preferred embodiment
`
`.
`
`. or to the examples listed
`
`within the patent specification."
`
`Dow Chemical Co. v. United
`
`States, 226 F.3d 1334, 1342 (Fed. Cir. 2000). See also Innova, 381
`
`F.3d at 1117 ("[P]articular embodiments appearing in the written
`
`description will not bE! used to limit claim language that has
`
`broader effect.").
`
`Defendants also argue that the plaintiff ascribed a special
`
`meaning to the term "two horizontal directions" in the prosecution
`
`history. See Spectrum International, 164 F.3d at 1378-79 (explicit
`
`meanings given to claim terms in order to overcome prior art will
`
`limit those terms accordingly) .
`
`In particular, defendants argue
`
`that during prosecution of the '248 patent plaintiff argued in a
`
`June 8, 2011, appeal brief that
`
`Claims 1, 11 and 16 recite methods of acquiring marine
`seismic data by intentionally introducing non-uniform
`spacing between seismic receivers and/ or seismic sources.
`More specifically, the spacing between receiver lines can
`vary
`( 59ab vs 59bc in FIG. 5) as well as the spacing
`between receivers within a receiver line (57 of FIG. 5),
`which account for the variation along two horizontal
`directions (FIG. 5 represents a
`top view). This non-
`
`-14-
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`uniform or irregular spacing can acquire seismic data
`that can be more accurately reconstructed.
`
`Clay is deficient because it does not teach the
`feature described above.
`Contrary to the Examiner's
`assertion, FIG.
`7 of Clay does not disclose
`the
`limitation "wherein the receivers are not aligned in at
`least one of the two horizontal directions." 19
`
`Defendants argue that these statements in the June 8, 2011,
`
`appeal brief "clearly confirm[]
`
`that
`
`the spacing along each
`
`receiver line (in-line) and between each receiver line (cross-line)
`
`accounts for the variation along
`
`two horizontal directions. " 20
`
`However, defendants overlook
`
`the fact
`
`that
`
`the appeal brief
`
`referred to only one figure, Figure 5 of the '248 application, a
`
`figure that expressly showed spacing between receiver lines and
`
`between receivers within a line. The argument cited by defendants
`
`was focused on Figure 5 and neither characterized all embodiments
`
`as falling within the description of that one figure nor clearly
`
`disavowed embodiments represented in other figures not addressed in
`
`that brief. See Home Diagnostics, Inc. v. LifeScan, Inc., 381 F.3d
`
`1352, 1358 (Fed. Cir. 2004)
`
`("Absent a clear disavowal or contrary
`
`definition in the specification or the prosecution history, the
`
`patentee is entitled to the full scope of its claim language.").
`
`To the contrary, the appeal brief stated that "Claims 1, 11 and 16
`
`. . . intentionally introduc[e] non-uniform spacing between seismic
`
`19Appeal Brief, Exhibit H, Docket Entry No. 41-9, p. 5.
`
`20 Defendants' Response, Docket Entry No. 41, p. 19.
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`receivers and/or seismic sources." 21 This broad description of non(cid:173)
`
`uniform spacing is consistent not only with Figure 5 but also with
`
`Figures 6 and 11 which do not depict any in-line or cross-line
`
`deployment of receivers.
`
`The patentee's description of an
`
`embodiment where receive:c lines and source lines are present sheds
`
`no
`
`light on
`
`the meaning of "two horizontal directions"
`
`in
`
`embodiments where receiver lines and source lines are not present,
`
`~' Figures 6 and 11.
`
`Instead, this exchange is an example of
`
`how carefully-crafted arguments in support of patentability can
`
`avoid creating ambiguous or adverse prosecution history.
`
`By
`
`stating clearly and particularly that the statements in the brief
`
`described the embodiment shown in Figure 5, the applicant ensured
`
`that those of ordinary skill in the art
`
`as well as courts, if
`
`need be - could evaluate the import and scope of the statements.
`
`Thus, because this argurr,ent was plainly limited to the embodiment
`
`shown in Figure 5, it cannot be said to be a clear statement
`
`limiting the scope of "two horizontal directions" in general.
`
`Defendants thus have not shown that sufficient reasons exist to
`
`import a limited definition of this term into the clear language of
`
`the claims.
`
`Neither the term "in-line" nor the term "cross-line" used in
`
`the defendants' proposed construction appear in the '248 Patent,
`
`and
`
`as defendants
`
`recognize,
`
`"[t] he
`
`term
`
`'two horizontal
`
`21Appeal Brief, Exhibit H, Docket Entry No. 41-9, p. 5.
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`-16-
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`directions'
`
`refers to the lateral spacing between seismic
`
`receivers and/ or between seismic source points, " 22 i.e., not between
`
`seismic receiver lines or seismic source lines. This conclusion is
`
`supported by the l~nguage of the claims in which the term "two
`
`horizontal directions" occurs because each of those claims clearly
`
`states that the spacing in "two horizontal directions" refers to
`
`spacing between any two receivers or any two sources, not between
`
`any two receiver lines or source lines.
`
`In pertinent part the
`
`patent states:
`
`The invention claimed is:
`
`1.
`
`A method of acquiring seismic data comprising the
`steps of:
`
`a.
`
`deploying receivers in a survey area wherein
`each receiver is laterally spaced from one
`another in two horizontal directions wherein
`the lateral spacing in at least one horizontal
`direction is deliberately non-uniform, wherein
`the receivers are not aliqned in at least one
`of the two horizontal directions and wherein
`the spacinq between any two seismic receivers
`in
`the deliberately non-uniform direction
`varies by a distance of at least five percent
`between
`the
`largest spacing and smallest
`spacing;
`
`10. A method of acquiring seismic data comprising the
`steps of:
`
`a.
`
`survey area and
`in a
`deploying receivers
`identifying seismic source points within the
`survey area where
`each
`source point
`is
`laterally spaced
`from one another
`in
`two
`horizontal directions wherein
`the
`lateral
`spacing in at least one horizontal direction
`is deliberately non-uniform, wherein
`the
`
`22 Defendants' Response, Docket Entry No. 41, p. 18.
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`-17-
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`receivers are not aligned in at least one of
`the two horizontal directions and wherein the
`spacing between any two seismic source points
`in
`the deliberately non-uniform direction
`varies by a distance of at least five percent
`between
`the
`largest spacing and smallest
`spacing;
`
`14. A method of acquiring seismic data comprising the
`steps of:
`
`a.
`
`deploying receivers in a survey area where
`each receiver is laterally spaced from one
`another
`in
`two horizontal directions and
`identifying source points wherein each source
`point is laterally spaced from one another
`wherein the lateral spacing for each of the
`source points and for each of the receivers is
`deliberately non-uniform
`in at
`least one
`horizontal direction, wherein the receivers
`are not aligned in at least one of the two
`horizontal
`directions
`and wherein
`the
`horizontal spacing between any
`two seismic
`receivers
`in
`the deliberately non-uniform
`direction varies by a distance of at least
`five percent between the largest spacing and
`the
`further wherein
`smallest spacing and
`horizontal spacing between any
`two seismic
`source points in the deliberately non-uniform
`direction varies by a distance of at least
`five percent between the largest spacing and
`smallest spacing. 23
`
`The court concludes that the term "two horizontal directions"
`
`is not limited to spacing "along each source or receiver line (in-
`
`line) or between each :source or receiver line (cross-line)" as
`
`defendants argue but, instead, needs no construction and is subject
`
`only to is plain and ordinary meaning.
`
`23 '248 Patent, 10:30-42, 11:24-36,
`added).
`
`and 12:6-24
`
`(emphasis
`
`-18-
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`In-Depth Exhibit IDG-1017 p. 18
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`(b) Terms Related to "Two Horizontal Directionsn
`
`Disputed
`Term
`
`"both
`horizontal
`directions"
`
`"in at least
`one
`horizontal
`direction"
`
`Patent
`
`Plaintiff's
`Construction
`
`Defendants'
`Construction
`
`'248 claims Plain and ordinary
`2, 11, 15
`meaning.
`
`Both of the two
`horizontal directions.
`
`'248 claims Plain and ordinary
`1, 10, and
`::neaning.
`14
`
`In at least one of the
`two horizontal
`directions.
`
`'248
`"in at
`claims 2
`least one
`direction" and 11
`
`Plain and ordinary
`meaning.
`
`In at least one of
`the two horizontal
`directions.
`
`Plaintiffs argue that the terms related to the term "two
`
`horizontal directions," .i.e., "both horizontal directions," "in at
`
`least one horizontal direction," and "in at least one direction,"
`
`need no further construction as their meanings are also readily
`
`apparent,
`
`and
`
`that defendants'
`
`proposed constructions
`
`are
`
`consistent with their plain and ordinary meanings. 24 Defendants
`
`respond that their proposed constructions of these terms is needed
`
`to insure consistency and avoid confusion because these phrases are
`
`not consistently worded with reference to the term "two horizontal
`
`directions" used throughout the claims. 25 Asserting that it "takes
`
`no issue with