Denying Institution IPR2014-00678

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Takeaway: Asserting multiple grounds of unpatentability against the same claim may not be helpful in a situation where one deficiency in the disclosure of the prior art pervades every asserted ground of unpatentability.

In its Decision, the Board denied institution of inter partes review, finding that Petitioner did not establish a reasonable likelihood of prevailing with respect to the sole challenged claim.  The ’038 patent relates to “a sea-borne seismic acquisition tracking and positioning system that tracks the geometry of a towed seismic streamer array and the relative positions of each individual streamer forming the array elements, ‘so that the towed seismic array data acquisition runs are repeatable, thereby enabling acquisition of four-dimensional geophysical data (x, y, z, time).’”

The Board first addressed the question of claim construction, noting that unexpired patent claims are given their “broadest reasonable construction in light of the specification of the patent.” Petitioner offered a claim construction for the terms “hingedly mounted” and “hinged mounting.”  With respect to several terms, Petitioner adopted the proposed constructions offered by Patent Owner in the related litigation, and the Board found no reason to provide an express construction for them.  The Board, however, construed one agreed upon term in addition to one disputed term.  First addressing the disputed term, “versus time,” the Board found Patent Owner’s proposal to improperly import limitations from the specification and construed the term to mean “versus a time dimension.”  Second, with respect to the term “array geometry,” the Board construed the term to mean a “specified array shape,” in contrast to Petitioner’s proposal, which included the “path of the array.”

The Board then turned to the asserted grounds of unpatentability. Petitioner challenged claim 14, asserting 8 different grounds of unpatentability.  With respect to the anticipation ground based on the ’895 Application, the Board found that Petitioner failed to establish that the reference teaches the “array geometry” claim limitations.  In particular, the Board was not persuaded by the evidence cited in the ’895 Application, and found the expert testimony for Petitioner to be conclusory.  In addition, the Board found certain arguments to be based upon an erroneous construction of the “array geometry” term.

Turning to anticipation based on the Canter PCT reference, the Board was not persuaded that the reference teaches “the limitations relating to vertical positioning commands, including tracking the vertical position of the streamers, comparing vertical positions, and issuing vertical positioning commands to the ASPDs.” The Board agreed with Patent Owner that the Canter PCT discloses horizontal positioning but does not explicitly teach the required vertical positioning, and that Petitioner did not convincingly explain how the reference established “how the depth of the streamer is controlled.”

With respect to the obviousness grounds based on the ’895 Application, Petitioner did not rely upon the disclosure of any secondary reference to solve the deficiency of the ’895 Application. Thus, the Board found that Petitioner did not establish a reasonable likelihood of prevailing on the obviousness grounds for the same reasons discussed with respect to the anticipation ground.  The same was true with respect to the asserted obviousness grounds based on the Canter PCT.

Finally, the Board noted that Patent Owner argued that the Petition was time-barred for various reasons. However, because Petitioner failed to demonstrate a reasonable likelihood of prevailing, the Board did not address these arguments.

Petroleum Geo-Services Inc. v. WesternGeco LLC, IPR2014-00678
Paper 33: Decision Denying Institution of Inter Partes Review
Dated: December 15, 2014
Patent: 6,691,038 B2
Before: Bryan F. Moore, Scott A. Daniels, and Beverly M. Bunting
Written by: Bunting
Related Proceedings:
WesternGeco L.L.C. v. Petroleum Geo-Services, Inc., 4:13-cv-03037 (S.D. Tex.); WesternGeco L.L.C. v. ION Geophysical Corp., 4:09-cv-01827 (S.D. Tex.); IPR2014-00687; IPR2014-00688; and IPR2014-00689