- Westerngeco, L.L.C. v. PGS Geophysical AsSome claims unpatentablePTAB · Jun 8, 2016 · IPR2015-00310 · APJ Justin Busch · IPR · Final written decision
Claims 23, 24, and 30 are unpatentable as anticipated by de Kok; claims 23, 24, 28, and 29 are unpatentable as obvious over Beasley and Edington.
RulingsFinal written decision- Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)Term construed board ownDecided for patent owner
“We agree with Patent Owner that the “indexed” limitation requires more than merely “selecting” times. Petitioner offers no explanation how Dr. Ikelle’s testimony that “indexed” should be construed broadly to mean “selected,” Ex. 2002, 184:8–11, would be consistent with the rest of the limitation that requires enabling separate identification of events originating from different sources. Patent Owner’s proposed construction, however, is unduly narrow to the extent it requires recording. As explained in the passage cited by Patent Owner, recording the signal and indexing are two separate aspects of the process involved in the ’981 patent. Ex. 1001, 5:62–67 (“A recording is made of the signal . . . that is indexed to a known time reference with respect to time of firing of the first source) (emphases added). The ’981 patent demonstrates that the term “indexed” is used in the “indexed” limitation according to one of its ordinary meanings that one thing is arranged in reference to another. Id.; see also id. at 6:66–7:1 (“[A] time of firing of each source with respect to a time index” is shown in Figure 4.), 8:33–40 (“[W]hen time is indexed with respect to the firing time of source A,” source B events are not coherent between firing sequences.).” slip op. at 7
- Novelty / Anticipation (§102) › Anticipation standard (single reference, every element)UnpatentableUnpatentable
“Owner’s distinctions between what de Kok discloses and what claim 23 recites are inapposite. We are persuaded by Petitioner’s arguments, which Patent Owner does not contest, that de Kok’s firing times for each source are indexed (as we have construed the “indexed” limitation) to the reference time in a way that allows the shot records to be separated into source records. Because de Kok discloses both indexing and enabling separate identification of seismic events originating from each source, de Kok discloses the “indexed” limitation as we have construed it.” slip op. at 13
- Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation foundReasonable expectation foundDecided for petitioner
“unpersuaded. Petitioner’s challenge relies on Edington for its teaching that time-delays can be used to encode and decode signals. Based on the arguments and evidence presented during trial, we are persuaded by Petitioner that a person having ordinary skill would have used time-aligning signals, as taught by Edington, as a type of decoding without needing to take multiple shots from the same source. Accordingly, a person having ordinary skill would have been able to decode a signal for a given encoding scheme, and we find Patent Owner’s assertion that an ordinarily skilled artisan would “lack[] an effective decoding scheme” unpersuasive.” slip op. at 21
- Obviousness (§103) › Motivation to combine / reasonable expectation of success › Teaching awayTeaching away not foundDecided for petitioner
“Beasley clearly states that “no time shift” results in “no spatial reflection-point smearing.” Ex. 1004, 7:61–62. Both parties agree that some amount of spatial reflection point smearing would result from using Edington’s time delay encoding with Beasley’s seismic surveying system. See Tr. 28:3–8, 38:14–15 (counsel for Patent Owner stating that “frankly, any time you have a time delay at all, there is spatial reflection point smearing”). However, neither party pointed us to evidence explaining the relationship between the amount of delay and the amount of smearing, or how much smearing would be tolerated in marine seismic surveying. One consequence of the lack of evidence on this point is that it is unclear whether Beasley is stating that simultaneous activation versus sequential activation avoids smearing or if simultaneous activation versus near-simultaneous activation avoids smearing. Beasley’s disclosure regarding the benefit of eliminating smearing immediately follows the discussion that distinguishes between sequential and concurrent source activation. Based on the record before us, we find Beasley indicates that simultaneous (or near-simultaneous) activation of sources avoids the smearing that otherwise results when activating the sources sequentially. Ex. 1004, 7:52–63. Furthermore, Patent Owner has not argued, and we do not find, that claim 23 should be construed to exclude any amount of spatial reflection point smearing.10 The parties have pointed to no evidence or argument explaining sufficiently why the level of smearing resulting from Petitioner’s proposed combination of Beasley and Edington would be unacceptable, but the level of smearing resulting from the time delay encoding recited in the ’981 patent would be acceptable. Therefore, to the extent that incorporating Edington’s time delay encoding into Beasley’s system generates reflection point smearing, the evidence does not support a finding that claim 23 excludes any amount of smearing. Based on the record before us, we are not 10 When asked whether the subject matter of the ’981 patent suffered from spatial reflection point smearing because of its use of time delays, counsel for Patent Owner stated “I do think it suffers it to some degree.” Tr. 41:14– 15. persuaded the smearing allegedly introduced by combining Edington’s time delay encoding with Beasley’s system would have led an ordinarily skilled artisan away from that combination.” slip op. at 25
Patent outcomesUS 6,906,981 mixedClaim construction§ 102 anticipation§ 103 obviousnesscites GrahamPatents in suitUS 6,906,981 - Westerngeco, L.L.C. v. PGS Geophysical AsSome claims unpatentablePTAB · Jun 8, 2016 · IPR2015-00309 · APJ Justin Busch · IPR · Final written decision
Claims 1, 2, 6, 7, 10, 11, 16, 17, 21, and 22 are unpatentable; claims 3–5 are not shown unpatentable, and challenges to claims 18–20 are dismissed.
RulingsFinal written decision- BurdenMixed
“Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73. For the reasons that follow, we determine that Petitioner has shown, by a preponderance of the evidence, that claims 1, 2, 6, 7, 10, 11, 16, 17, 21, and 22 are unpatentable, but has failed to do so for claims 3–5 and 12–15. We dismiss the Petition with respect to the challenges asserted against claims 18–20.” slip op. at 2
- Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)Term construed board ownDecided for patent owner
“more than merely “selecting” times. Petitioner offers no explanation how Dr. Ikelle’s testimony that “indexed” should be construed broadly to mean “selected,” Ex. 2002, 184:8–11, would be consistent with the rest of the limitation that requires enabling separate identification of events originating from different sources. Patent Owner’s proposed construction, however, is unduly narrow to the extent it requires recording. As explained in the passage cited by Patent Owner, recording the signal and indexing are two separate aspects of the process involved in the ’981 patent. Ex. 1001, 5:62–67 (“A recording is made of the signal . . . that is indexed to a known time reference with respect to time of firing of the first source) (emphases added). The ’981 patent demonstrates that the term “indexed” is used in the “indexed” limitation according to one of its ordinary meanings that one thing is arranged in reference to another. Id.; see also id. at 6:66–7:1 (“[A] time of firing of each source with respect to a time index” is shown in Figure 4.), 8:33–40 (“[W]hen time is indexed with respect to the firing time of source A,” source B events are not coherent between firing sequences.).” slip op. at 9
- Novelty / Anticipation (§102) › Anticipation standard (single reference, every element)UnpatentableNot shown unpatentableMixed
“Although a prior art reference may anticipate when the claim limitations not expressly found in that reference are inherent in it, inherency requires that “the prior art necessarily functions in accordance with, or includes, the claimed limitations, it anticipates.” In re Cruciferous Sprout Litig., 301 F.3d 1343, 1349 (Fed. Cir. 2002). Here, Petitioner’s arguments and evidence fail to persuade us that de Kok disclosure of suppressing random noise inherently includes determining trace to trace coherence. Merely demonstrating a step may be done is not sufficient to show that step is inherently anticipated. Accordingly, based on the arguments and evidence submitted, we find Petitioner has failed to demonstrate, by a preponderance of the evidence, that de Kok anticipates claims 12 and 17. Similarly, because claims 13–15 ultimately depend from claim 12, we find Petitioner has failed to demonstrate, by a preponderance of the evidence, that de Kok anticipates claims 13–15.” slip op. at 19
- Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation foundDecided for petitioner
“The relevant passages cited by both parties demonstrate that Beasley distinguishes between alternating and concurrent firings. See, e.g., Ex. 1004, 7:52–63. Although Herkenhoff states that the concurrent disclosure in Beasley means “exactly concurrently,” Patent Owner has not pointed to any clear disclosure in Beasley itself indicating “concurrently” should be understood as excluding any amount of time delay. Petitioner, however, has pointed to multiple references where Beasley explains that sources may be fired “simultaneously or nearly simultaneously.” Pet. Reply 15 (citing Ex. 1004, 8:46–47); Pet. 47 (quoting Ex. 1004, 1:19–25 (“The present invention, in certain aspects, is directed to seismic survey systems and methods in which two or more seismic sources are fired simultaneously, or significantly close together temporally . . . .”)); see also Ex. 1004, 1:47–51, 8:44–47, 9:5–10, 12:26–29. Moreover, claim 1 of the ’655 patent, which Patent Owner asserts claims the “first embodiment” of the ’981 patent, recites a method including the step of “substantially simultaneously launching a first acoustic wavefield,” from the leading source, “the first wavefield being characterized by a first unique code and launching a second acoustic wavefield” from the trailing source, “the second acoustic wavefield being characterized by a second unique code.” Ex. 2009, 6:46–53. Accordingly, Beasley does not exclude time delay encoding from its disclosed “concurrent” activation embodiments.” slip op. at 27
Patent outcomesUS 6,906,981 mixedClaim construction§ 102 anticipation§ 103 obviousness§ 112 disclosurecites GrahamPatents in suitUS 6,906,981 - Westerngeco, L.L.C. v. PGS Geophysical AsSome claims unpatentablePTAB · Jun 8, 2016 · IPR2015-00311 · APJ Justin Busch · IPR · Final written decision
Claims 31, 32, and 35–37 are unpatentable as obvious over Beasley and Edington; the Board did not find claims 31–34 and 36–38 anticipated by de Kok or claims 33–34 obvious.
RulingsFinal written decision- Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)No construction neededOther
“Petitioner initially argued for a specific construction of “wavelet time” as “the duration of the source signature.” Pet. 14–15. For purposes of the Decision on Institution, we preliminarily construed wavelet time consistent with Petitioner’s proposed construction. Dec. on Inst. 14–15. Now, with the full record before us, we determine an explicit construction of “wavelet time” is not necessary to resolve this controversy. Petitioner does not clearly set forth a proposed construction for any other term in its Petition. Patent Owner argues for specific constructions of “quasi-randomly” and “randomly.” PO Resp. 15–19. The constructions of “quasi-randomly” and “randomly” are not in dispute, and an explicit construction is not necessary to resolve the controversy; accordingly, we do not provide an explicit construction of “quasi-randomly” or “randomly.” Therefore, we determine there is no need to construe explicitly any term for purposes of this decision.” slip op. at 6
- Novelty / Anticipation (§102) › Anticipation standard (single reference, every element)Not shown unpatentableNot shown unpatentable
“We agree with Patent Owner that de Kok’s polarity encoding and decoding process does not disclose the “time aligning” step. As Patent Owner argues, de Kok describes a polarity encoding and decoding system that does not align the “recorded signals with respect to a firing time of the second source in each firing sequence.” Specifically, de Kok explains that it uses activation sequences and polarity to generate signals, from which “source records may be derived” “using a combination of shot record summations, inversions and filtering.” Ex. 1003, 2:51–53; see also id. at 4:55–5:4, 5:55–65. To the extent de Kok discusses time delay encoding, any arguable time alignment applies to the firing of the sources, not the recorded signals. Id. at 5:66–6:2, 6:41–52. Accordingly, Petitioner has not pointed to persuasive evidence that de Kok’s polarity encoding and decoding discloses the “time-aligning” step.” slip op. at 8
- Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation foundDecided for petitioner
“The relevant passages cited by both parties demonstrate that Beasley distinguishes between alternating and concurrent firings. See, e.g., Ex. 1004, 7:52–63. Although Herkenhoff states that the concurrent disclosure in Beasley means “exactly concurrently,” Patent Owner has not pointed to any clear disclosure in Beasley itself indicating “concurrently” should be understood as excluding any amount of time delay. Petitioner, however, has pointed to multiple references where Beasley explains that sources may be fired “simultaneously or nearly simultaneously.” Pet. Reply 12 (citing Ex. 1004, 8:46–47); Pet. 38 (quoting Ex. 1004, 1:19–25 (“The present invention, in certain aspects, is directed to seismic survey systems and methods in which two or more seismic sources are fired simultaneously, or significantly close together temporally . . . .”)); see also Ex. 1004, 1:47–51, 8:44–47, 9:5–10, 12:26–29. Moreover, claim 1 of the ’655 patent, which Patent Owner asserts claims the “first embodiment” of the ’981 patent, recites a method including the step of “substantially simultaneously launching a first acoustic wavefield,” from the leading source, “the first wavefield being characterized by a first unique code and launching a second acoustic wavefield” from the trailing source, “the second acoustic wavefield being characterized by a second unique code.” Ex. 2009, 6:46–53. Accordingly, Beasley does not exclude time delay encoding from its disclosed “concurrent” activation embodiments. Patent Owner’s argument that time delay encoding results in a plain wavefield rather than an encoded wavefield and, therefore, using time delay encoding would not fall within Beasley’s “any type of coding,” is similarly unpersuasive. Patent Owner fails to address that Beasley distinguishes between “a signal with no encoded feature, individual identifier, tag, discriminating feature, or separate signature” and “signals that can be discriminated from each other due to some identifying characteristic, parameter, signature or feature.” Ex. 1004, 9:67–10:8 (emphasis added). Accordingly, the evidence supports Petitioner’s contention that time delay encoding generates signals with an identifying parameter or characteristic (the timing) that would allow the signals to “be discriminated from each other.” Pet. Reply 11–12. Furthermore, Dr. Lynn acknowledged that “Edington’s time delay source coding is ‘a type of source signature encoding.’” Id. (quoting Ex. 1022, 148:18–23).” slip op. at 17
- Obviousness (§103) › Objective indicia / secondary considerations › NexusObjective indicia no nexusDecided for petitioner
“nonobviousness. PO Resp. 55–60. The factual inquiries for obviousness include secondary considerations based on evaluation and crediting of objective evidence. Graham v. John Deere Co., 383 U.S. 1, 17 (1966). However, to accord substantial weight to objective evidence requires the finding of a nexus between the evidence and the merits of the claimed invention. In re GPAC Inc., 57 F.3d 1573, 1580 (Fed. Cir. 1995). “Nexus” is a legally and factually sufficient connection between the objective evidence and the claimed invention, such that the objective evidence should be considered in determining nonobviousness. Demaco Corp. v. F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1392 (Fed. Cir. 1988). The burden of showing that a nexus exists lies with the patent owner. Id.; see In re Paulsen, 30 F.3d 1475, 1482 (Fed. Cir. 1994). Patent Owner points to various prior attempts (including Edington, Beasley, and de Kok) to conduct simultaneous shootings in a marine environment and the failings of each of them. Id. at 43–44. Patent Owner also points to various published papers allegedly “investigat[ing] data processing techniques for use with data sets modeled on [the ’981 patent]’s varied time delays” and field trials and studies allegedly using the ’981 patent’s “time-delay acquisition and indexing methods.” Id. at 44–48. Petitioner argues Patent Owner has shown no nexus between Patent Owner’s proffered secondary considerations and the invention of the ’981 patent. Pet. Reply 20–22. Petitioner contends Patent Owner’s focus on the varied time delays of claim 31 is insufficient because time delayed encoding “existed long before the ’981 patent.” Id. We agree with Petitioner that Patent Owner has not demonstrated sufficiently a nexus between the secondary considerations and the alleged novelty of claim 31. First, as Petitioner points out, and as borne out by the evidence in this case, time delay encoding for seismic surveying existed prior to the ’981 patent. E.g., Exs. 1006, 1021. Second, the majority of the evidence cited by Patent Owner focuses on the randomness of the time delays, not just the use of time delays generally. Consequently, Patent Owner has not presented persuasive evidence or analysis linking the claims at issue with the alleged “long-felt but unmet need, industry praise, and copying.” See PO Resp. 55.” slip op. at 20
Patent outcomesUS 6,906,981 mixedClaim construction§ 102 anticipation§ 103 obviousnesscites GrahamPatents in suitUS 6,906,981 - Westerngeco LLC v. PGS Geophysical AsSome claims unpatentablePTAB · Jun 3, 2016 · IPR2015-00313 · APJ Beverly M Bunting · IPR · Final written decision
Claims 1, 4, 10, and 11 are unpatentable: claims 1, 4, and 10 as anticipated by Gallagher, and claim 11 as obvious over Gallagher and Frasier; claims 2, 3, and 5 were not shown unpatentable.
RulingsFinal written decision- Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)Term construed patent owner constructionDecided for patent owner
“Id. at 3:59–65. Additionally, the specification describes how, in this embodiment, “a plurality of the coordinate-designated set of traces have the same coordinates . . . the acquisition geometry resulted in two traces populating each common-inline/common-crossline bin.” Id. at 3:66–4:3. In an alternative embodiment, “there will be a unique set of coordinates per trace (i.e. a single trace per coordinate bin).” Id. at 4:5–7. Thus, based on the specification of the ’059 patent, we credit the testimony of Dr. Lynn that one of skill in the art would understand the “set of bins having a regularized number of traces” into which the coordinate-designated set of traces is organized are “common-offset bins.”4 Ex. 2037 ¶¶ 57–65, 111–113.” slip op. at 10
- Novelty / Anticipation (§102) › Anticipation standard (single reference, every element)UnpatentableNot shown unpatentableMixed
“As discussed supra, we determined that the correct interpretation of the claim term “set of bins” is “a set of common offset bins within a common reference point bin.” Patent Owner’s arguments directed to “posthoc bins” are not persuasive because the claims do not limit the bins to “pre” or “post” hoc bins. Thus, in view of the correct construction of the claim term “set of bins,” we are persuaded by Petitioner’s arguments that Gallagher discloses a “set of bins.” Specifically, Petitioner explains how the section shells group the sources based on their azimuth and offset from the CMP (Reply 10–11), and that the sub-squares represent common offset bins (Id. at 11–12). Additionally, Petitioner argues persuasively that the single-trace bin satisfies the claim limitation “a set of bins” as we have construed this term, because “[e]ach trace within the sub-bins or sections of Gallagher is necessarily common [to itself] with respect to offset and even azimuth.” Reply 13. In considering the record in its entirety, Petitioner has presented persuasive evidence to support a finding that Gallagher describes the “organizing” step recited in independent claim 1.” slip op. at 18
- Obviousness (§103) › Motivation to combine / reasonable expectation of success › Teaching awayTeaching away not foundDecided for petitioner
“We are not persuaded by Patent Owner’s argument that the disclosure in Gallagher teaches away from the recited method. Patent Owner has not shown, nor can we find, that Gallagher criticizes, discredits, or otherwise discourages the use of a common reflection point instead of a common reference point. A reference teaches away from a claimed invention if it “criticizes, discredits, or otherwise discourages” modifying the reference to arrive at the claimed invention. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). We will not, however, “read into a reference a teaching away from a process where no such language exists.” DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006).” slip op. at 26
- Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation foundUnpatentable
“The Supreme Court has held that an obviousness evaluation “cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of published articles and the explicit content of issued patents.” KSR, 550 U.S. at 419. Instead, the relevant inquiry here is whether Petitioner has set forth “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval in KSR, 550 U.S. at 418. Patent Owner does not proffer persuasive arguments or evidence that Petitioner’s proposed modification of the system of Gallagher using the teachings of Frasier regarding common reflection point would not have been obvious to one of skill in the art. We have considered Patent Owner’s arguments; however, we are persuaded that Petitioner has provided an articulated reasoning with rational underpinning to support the legal conclusion of obviousness. See KSR, 550 U.S. at 418 (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).” slip op. at 26
Patent outcomesUS 6,026,059 mixedClaim construction§ 102 anticipation§ 103 obviousnesscites KSR · GrahamPatents in suitUS 6,026,059
Holdings, summaries, rulings, issues, outcomes, winners and claim constructions shown for a decision were generated by a large language model reading the opinion. They are a guide to the decision, not the decision. Confirm every one against the court's own text before relying on it. Outcomes read from the patent owner’s side. Party names are extracted from the decision and are missing on about 900 short Director denials and scans, which carry the trial number instead.