WesternGeco, L.L.C.v.PGS Geophysical as

Patent Trial and Appeal Board

Jun 8, 2016

10197235 (P.T.A.B. Jun. 8, 2016)

Trials@uspto.gov Paper 42
571-272-7822 Date: June 8, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

WESTERNGECO, L.L.C.,
Petitioner,

v.

PGS GEOPHYSICAL AS,
Patent Owner.
____________

Case IPR2015-00309
Patent 6,906,981 B2
____________

Before JUSTIN BUSCH, MITCHELL G. WEATHERLY, and
BEVERLY M. BUNTING, Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73

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I. BACKGROUND
WesternGeco, L.L.C. (“Petitioner”) filed a Petition requesting an inter
partes review of claims 1–22 of U.S. Patent No. 6,906,981 B2 (“the ’981
patent”) on November 26, 2014. Paper 1 (“Pet.”). On June 8, 2015, the
Board instituted an inter partes review of claims 1–7 and 10–22. Paper 15
(“Dec. on Inst.”), 15. PGS Geophysical AS (“Patent Owner”) filed a Patent
Owner Response (“PO Resp.”) on October 2, 2015. Paper 23. On
November 20, 2015, Petitioner filed a Reply (“Pet. Reply”) to the Patent
Owner Response. Paper 31. We authorized the filing of a Surreply, Paper
34, which Patent Owner filed on December 18, 2015. Paper 35. Oral
hearing was held on March 2, 2016.1
The Board has jurisdiction under 35 U.S.C. § 6(c). This Final Written
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.
A. Related Proceedings
Petitioner states that the ’981 patent is involved in WesternGeco LLC
v. Petroleum Geo-Services, Inc., Civ. Action No. 4:13-cv-02725 (S.D. Tex.).
Pet. 8. The ’981 patent is also the subject of two co-pending inter partes
reviews, IPR2015-00310 and IPR2015-00311.

1 The record includes a transcript of the oral hearing (“Tr.”). Paper 41.
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B. The ’981 Patent (Ex. 1001)
The ’981 patent is directed to methods and systems for seismic
surveying, including firing at least two energy sources in multiple firing
sequences.2 Ex. 1001, Abstract. Each firing sequence includes firing each
of the physically spaced apart sources with selected time delays between
firing each source and recording signals detected by a seismic sensor system.
Id. The delay time between firing successive sources is varied from one
firing sequence to the next. Id. The systems and methods index the firing
times of each source in order to enable separately identifying recorded
activity attributable to each of the separate sources. Id.
According to the ’981 patent, “[p]rior art methods for using two or
more spaced apart sources . . . include firing the first source, and waiting
before firing the second source a sufficient amount of time such that signals
detected by the sensors resulting from firing the first source have
substantially attenuated.” Id. at 5:51–56. The near-simultaneous3 firing of
multiple sources creates interference because the shots overlap with each
other. See id. at 5:56–60. In order to glean useful data from the mixed
results, the data attributed to each source must be separated out. See id. at
6:29–33. Assuming the data can be sorted properly, near-simultaneous

2 Source, energy source, and seismic energy source are used interchangeably
within the art and throughout this decision. Firing, actuating, and activating
also are used interchangeably within the art and throughout this decision.
3 Simultaneous and near-simultaneous are used interchangeably within the
art and throughout this decision, unless otherwise indicated by context. See
Tr. 15:8–12, 17:1–18:15, 44:15–20; Deposition of Dr. Ikelle (Ex. 2002),
18:23–19:10. These terms indicate simultaneously recording seismic event
data from multiple sources, such that the recording needs to have a way to
separate the data contributed from each source. Id. at 44:15–20.
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shooting provides surveyors with more data per sensor streamer than when
using a single source. See id. at 10:52–56. Additionally, near-simultaneous
shooting may increase surveying efficiency by reducing the time necessary
to wait between firing sources. Id. at 10:56–64.
C. Illustrative Claim
Independent claim 1, which is the only independent claim and is
illustrative of the subject matter, is reproduced below:
1. A method for seismic surveying, comprising:
towing a first seismic energy source and at least one
seismic sensor system;
towing a second seismic energy source at a selected
distance from the first seismic energy source; and
actuating the first seismic energy source and the second
seismic energy source in a plurality of firing sequences, each of
the firing sequences including firing of the first source and the
second source and recording signals generated by the at least
one seismic sensor system, a time interval between firing the
first source and the second source varied between successive
ones of the firing sequences, the times of firing the first and
second source indexed so as to enable separate identification of
seismic events originating from the first source and seismic
events originating from the second source in detected seismic
signals.
D. Asserted Grounds of Unpatentability
We instituted review based on Petitioner’s allegation that claims 1, 2,
7, and 10–21 are anticipated 35 U.S.C. § 102 by de Kok4 and claims 1–6 and

4 Robbert Jasper de Kok, U.S. Patent No. 6,545,944 B2 (Apr. 8, 2003)
(Ex. 1003) (“de Kok”).
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16–22 would have been obvious under 35 U.S.C. § 103(a) in view of
Beasley5 and Edington.6
Petitioner submitted testimonial evidence from Dr. Luc T. Ikelle,
Ex. 1002, in support of its Petition. Patent Owner submitted testimonial
evidence from Dr. Walter S. Lynn, Ex. 2001, in support of its Response.
Patent Owner also submitted the transcript of Dr. Ikelle’s deposition,
Ex. 2002, with its Response. Petitioner submitted the transcript of Dr.
Lynn’s deposition, Ex. 1022, with its Reply.
II. ANALYSIS
A. Claim Construction
In an inter partes review, claim terms of an unexpired patent are given
their broadest reasonable interpretation in light of the specification in which
they appear and the understanding of others skilled in the relevant art. See
37 C.F.R. § 42.100(b). Applying that standard, we interpret the claim terms
of the ’981 patent according to their ordinary and customary meaning in the
context of the patent’s written description. See In re Translogic Tech., Inc.,
504 F.3d 1249, 1257 (Fed. Cir. 2007) (quoting Phillips v. AWH Corp., 415
F.3d 1303, 1312 (Fed. Cir. 2005) (en banc)). We construe only those claim
terms or phrases in controversy, and we do so only to the extent necessary to
resolve the controversy. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc.,
200 F.3d 795, 803 (Fed. Cir. 1999).

5 Craig J. Beasley et al., U.S. Patent No. 5,924,049 (July 13, 1988)
(Ex. 1004) (“Beasley”).
6 Bruce L. Edington, U.S. Patent No. 4,953,657 (Sept. 4, 1990) (Ex. 1006)
(“Edington”).
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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 “indexed,” “quasi-
randomly,” and “randomly.” PO Resp. 15–21. 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.” With respect to
Patent Owner’s proposed construction for “indexed,” it is important to view
the term in the context that it is used in the claim. Accordingly, for purposes
of this decision and as discussed further below, we provide an explicit
construction for “the times of firing the first and second source indexed so as
to enable separate identification of seismic events originating from the first
source and seismic events originating from the second source in detected
seismic signals” (the “indexed” limitation).
1. Dependency Recited in Claims 18–20
Although not challenged by the parties, we observe that claims 18 and
19 do not further limit the claims from which they depend. Specifically,
claim 18 recites the “method as defined in claim 16 wherein the determining
the shot to shot coherent components comprises . . .,” but neither claim 16
nor claim 1, from which claim 16 depends, recites “determining the shot to
shot coherent components.” Thus, as written, claim 18 depends from claim
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16. However, for claim 18 to “specify a further limitation of the subject
matter claimed” as required under 35 U.S.C. § 112, ¶ 4, claim 18 would
have to depend from one of claims 12, 14, 15, and 17, each of which recites
“determining . . . shot to shot coherent components.” Without such a
correction, it is not possible to discern clearly the scope of claim 18 as
required under 35 U.S.C. § 112, ¶ 2.
Claim 19 includes a similar defect.7 Claim 19 recites the “method as
defined in claim 6 wherein the extracting the signals identified to the second
source comprises . . .,” but neither claim 6 nor claim 1, from which claim 6
depends, recites “extracting the signals identified to the second source.”
Similarly, claim 19, as written, does not comply with the dependency
requirements of § 112, ¶ 4. To correct this deficiency would require that we
identify the correct claim from which claim 19 depends, which could be any
one of claims 11–18, which recite extracting signals identified to the second
source.
Under Novo Industries, L.P. v. Micro Molds Corp., 350 F.3d 1348
(Fed. Cir. 2003), we would be permitted to correct the deficiencies in the
recited dependencies in claims 18 and 19 if we could make the correction in
a manner that was not subject to reasonable debate. Novo, 350 F.3d at 1354.
However, as discussed above, making such a correction to each of claims 18
and 19 would be subject to reasonable debate.8 Accordingly, we cannot

7 We previously determined that claim 19 was clearly intended to depend
from claim 16. Dec. on Inst. 7, n.6. However, upon further review, we
determine that the intended dependency of claim 19 is open to debate.
8 We have reviewed the prosecution history of the application that led to the
issuance of the ’981 patent and found that history to be of no help in
discerning the proper dependency of claim 18 or 19.
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correct the improper dependency recited in either of claims 18 or 19 and,
therefore, the claims fail to meet the requirements of 35 U.S.C. § 112, ¶¶ 2,
4. Because claims 18 and 19 fail to indicate the scope of the claimed
invention, we do not attempt to apply the asserted prior art to claims 18 and
19. We reach the same conclusion with respect to claim 20, which depends
from claim 19. Accordingly, we dismiss the Petition with respect to
Petitioner’s challenges to claims 18–20.
2. The “indexed” limitation
Petitioner argues “‘indexed’ simply means that ‘you have to save . . .
your time delay,’ i.e., that the times are recorded.” Pet. Reply 5 (citing
Ex. 2002, 182:13–15). At oral argument, Petitioner stated it previously
argued the “ordinary and customary meaning” of “indexed” is “selecting
time delays.” Tr. 72:24–73:15 (citing Ex. 1002 ¶ 83). Patent Owner
contends “‘indexed’ means ‘recorded with respect to a known time
reference,’ not merely ‘selected,’ and that de Kok neither discloses nor
requires indexing the source firing times.” Surreply 1 (citing PO Resp. 15–
18, 24–28). Patent Owner argues “the claim language makes indexing a
feature of separating identification of seismic events.” PO Resp. 15–16.
Accordingly, Patent Owner argues the term “indexed” requires “recording
the firing times for subsequent use in processing,” not just selecting firing
times. Id. at 16. Patent Owner cites to the specification of the ’981 patent as
support for its position. Id. (citing Ex. 1001, 5:62–67, 6:37–7:39, Fig. 4).
Specifically, the identified passage from the ’981 patent states:
A recording is made of the signal detected by the sensors that is
indexed to a known time reference with respect to time of firing
the first source. The second source (or array) is then fired at a
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known, selected time delay after the firing of the first source,
while signal recording continues.
Ex. 1001, 5:62–67.
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.).
Patent Owner also argues “enabl[ing] separate identification of
seismic events originating from the first source and seismic events
originating from the second source in detected seismic signals” requires each
seismic event to be separately identifiable from each other seismic event.
See PO Resp. 21–24. Patent Owner asserts the “indexed” limitation requires
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identification of “the individual seismic events corresponding to one firing
of one source.” Id. at 23 (citing Ex. 2001 ¶¶ 162–163).
Petitioner does not dispute that de Kok fails to teach separate
identification of each seismic event from each firing of each source, but
asserts Patent Owner’s argument “improperly reads the word ‘individual’
into claim 1.” Pet. Reply 3. Petitioner argues the “indexed” limitation
requires only discriminating between sources, not separate identification of
each seismic event. Id.
The ’981 patent discloses removal of both random and coherent noise,
resulting in traces that “substantially represent seismic signals resulting only
from” one particular source. Ex. 1001, 7:53–8:25. As discussed above,
Petitioner demonstrates that de Kok generates “source records,” that result in
data from only one particular source. Ex. 1003, 4:47–55. To the extent the
’981 patent contemplates identifying individual traces from each firing of
each source, we decline to import that limitation into the claim.
Accordingly, Patent Owner’s proposed construction is narrower than the
broadest reasonable construction. E-Pass Techs., Inc. v. 3Com Corp., 343
F.3d 1364, 1369 (Fed. Cir. 2003); see also Superguide Corp. v. DirecTV
Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) (“Though understanding
the claim language may be aided by the explanations contained in the
written description, it is important not to import into a claim limitations that
are not a part of the claim. For example, a particular embodiment appearing
in the written description may not be read into a claim when the claim
language is broader than the embodiment.”). In particular, as argued by
Petitioner, we note that the relevant portion of claim 1 recites that the
indexed firing times “enable separate identification of seismic events
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originating from the first source and seismic events originating from the
second source in detected seismic signals.” We read that phrase to require
only that the events originating from one source can be identified (using the
indexed firing times) separately from the events originating from a second
source, and decline to narrowly construe the phrase to require that individual
seismic events resulting from each firing of each source can be separately
identified from each other.
For the reasons discussed above, we construe the “indexed” limitation
to mean determining the sources’ firing times with respect to a known
reference time so that a later processing step may distinguish seismic events
originating at a particular source from seismic events originating at all other
sources.
B. Asserted Anticipation of Claims 1, 2, 7, and 10–21 by de Kok
Petitioner challenges claims 1, 2, 7, and 10–21 under 35 U.S.C. § 102
as anticipated by de Kok. Pet. 15–27. Petitioner argues de Kok discloses
every limitation of claims 1, 2, 7, and 10–21 of the ’981 patent, and includes
claim charts mapping a portion of de Kok to each recited limitation. Id. at
15–27. As discussed above, we have dismissed the Petition with respect to
challenges to claims 18–20 and do not address the parties’ arguments with
respect to those claims.
1. De Kok
De Kok is a United States patent directed to “method[s] of seismic
surveying and seismic data processing using a plurality of simultaneously
recorded seismic-energy sources.” Ex. 1003, Abstract. De Kok uses
activation sequences to allow separation of simultaneously recorded data
from multiple seismic sources into source records, each of which includes
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data of seismic signals from only one source. Id. Each simultaneous
recording of data from multiple seismic sources (i.e., data resulting from one
activation sequence) in de Kok is a shot record. Id. at 4:47–50. De Kok
takes multiple shot records, separates the contributions from each source for
each shot, and combines the contributions from each source for all of the
shot records to generate a source record for each source that “contain[s]
energy responsive to the individual seismic sources.” Id. at 4:50–55.
2. Independent Claim 1
Petitioner asserts Figures 2 and 4 of de Kok, and the related
description, disclose towing two spaced apart energy sources and a seismic
sensor system, as required by claim 1. Id. at 19–20 (quoting Ex. 1003, 4:32–
35, 5:23–24, 5:36–39, Figs. 2, 4). Petitioner argues de Kok’s general
description of simultaneous recording of the energy resulting from the
activation sequences used to fire its plurality of energy sources and the
disclosed exemplary activation sequences meet the claimed requirement of
actuating each of the two energy sources in a plurality of firing sequences.
Id. at 20 (quoting Ex. 1003, 2:42–47). Petitioner further contends that the
exemplary firing sequences demonstrate that de Kok’s time delays, between
the firing of the first and second sources, vary from shot to shot. Id. (citing
Ex. 1003, 6:18–23, Fig. 5A). Finally, Petitioner argues de Kok’s disclosure
of using activation sequences that enable the recorded seismic energy in the
shot recordings to be separated into one record per source constitutes
indexing the firing times “so as to enable separate identification of seismic
events originating” from each source as claimed. Id. at 21 (quoting
Ex. 1003, 2:47–50); Pet. Reply 3–4. Petitioner asserts the “indexed”
limitation does not require separately identifying each individual seismic
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event. Pet. Reply 3. Thus, Petitioner asserts de Kok discloses each
limitation recited in claim 1.
Patent Owner argues de Kok fails to teach the “indexed” limitation, as
recited in claim 1.9 PO Resp. 21–28. Specifically, Patent Owner contends
de Kok does not use firing times to enable separate identification of each of
the sources from the recorded signal. PO Resp. 25–26. Rather, Patent
Owner asserts, two of every four of de Kok’s shots in a sequence occur at a
reference time and the other two occur at a fixed alternate time, and that the
interval between the firing times does not matter as long as it is constant. Id.
at 26. Patent Owner further argues de Kok’s system only needs to record the
reference time on which the firing times of each shot are based, not the
specific timing of each shot, to generate its resulting signals. Id. at 27–28.
Patent Owner argues de Kok does not disclose “enabl[ing] separate
identification of seismic events originating from the first source,” because de
Kok generates new traces, called “source recordings,” that do not retain the
data relating to individual traces for each shot of each source. Id. at 23
(citing Ex. 2001 ¶ 162). As discussed above with respect to claim
construction, Patent Owner asserts the “indexed” limitation requires
separately identifying each individual trace from each shot of each source.
Id.
Petitioner points to de Kok’s disclosure that the seismic sources are
fired using an activation sequence and the “recordings responsive to

9 We do not address the parties’ contentions regarding whether de Kok
records firing times because we do not construe the “indexed” limitation to
require recording, for the reasons discussed above. See PO Resp. 25–27;
Pet. Reply 4–5; Surreply 1–3.
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individual seismic sources” may be separated out from the records of all
shots. Pet. 21 (quoting Ex. 1003, 2:47–50); Pet. Reply 3–4. Petitioner also
argues de Kok’s separation of its shot records into source records “requires
that the firing times be indexed,” because de Kok has to control firing times
in the field in order for the later summations and source separations to work.
Pet. Reply 5 (citing Ex. 1022, 135:17–137:2).
We note Patent Owner recognizes that de Kok’s system needs to use
the reference time (on which the firing times of each shot in each activation
sequence are based) to later separate the signals into de Kok’s source
recordings. PO Resp. 27–28. De Kok explains that each source is activated
with a fixed time delay relative to a reference time (tr). Ex. 1003, 6:21–30.
Patent Owner acknowledges that de Kok enables separately identifying
seismic signals attributed to a particular source. PO Resp. 23. Patent
Owner’s understanding in this regard demonstrates that its arguments rely on
a narrow interpretation of the “indexed” limitation, which we have not
adopted. Thus, given our construction of the “indexed” limitation, Patent
Owner’s distinctions between what de Kok discloses and what claim 1
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.
Patent Owner also argues de Kok fails to teach “towing a second
seismic energy source at a selected distance from the first seismic energy
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source” (the “towing” step), as recited in claim 1. PO Resp. 28–31. Patent
Owner asserts that, because de Kok never explicitly mentions a distance
between its first and second sources or any criteria for selecting a distance, it
does not meet the “towing” step. Id. Patent Owner further argues that,
because de Kok’s method could be performed “without ever selecting a
distance,” de Kok does anticipate claim 1. Id. at 30. Patent Owner contends
that de Kok’s disclosure of the sources being “relatively close to each other,”
fails to teach that the distance between sources “is ‘selected,’ much less an
enabling disclosure of performing that selection.” Id. (quoting Ex. 1003,
5:36–39).
Petitioner counters that, in addition to stating the sources are relatively
close to each other, de Kok describes some sources placed at the front of the
sensor streamers and some trailing the sensor streamers. Pet. Reply 5–6
(citing Ex. 1003, 5:36–40). Regarding Patent Owner’s argument that
de Kok does not provide a specific dimension, Petitioner asserts that the
’981 patent neither recites nor teaches a specific dimension. Id. at 6.
Petitioner also quotes a statement from Patent Owner’s declarant, Dr. Lynn,
that the ’981 patent does not provide specific locations for its sources and
merely requires that the sources be within a reasonable range that produces
useful information. Id. (quoting Ex. 1022, 112:4–16). Petitioner asserts
there is no distinction between what is disclosed by the ’981 patent and what
is disclosed by de Kok with respect to the “towing” step. Id.
To the extent Patent Owner argues de Kok does not provide “an
enabling disclosure of performing that selection [of a distance between
sources],” such an argument is not commensurate with the scope of the
claim. Specifically, the “towing” step merely requires towing the second
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source a selected distance from the first source. No step of selecting a
distance is affirmatively recited. Regarding the argument that no specific
dimension is provided in de Kok, we agree with Petitioner that de Kok
discloses as much as the ’981 patent does regarding the “selected distance”
between sources. Particularly in light of Dr. Lynn’s testimony that the two
sources need only be within a reasonable range such that useful data may be
obtained during simultaneous recording of the different sources, we find an
ordinarily skilled artisan would have been aware of how to choose a
reasonable and useful “selected distance.” Moreover, de Kok is directed to a
similar goal of simultaneously recording “useful” data from multiple sources
and, accordingly, we find an ordinarily skilled artisan would have
understood de Kok to disclose that the sources are towed a “selected
distance” apart, as required by the “towing” step recited in claim 1.
Accordingly, upon reviewing the arguments and evidence presented
by both parties during trial, Petitioner persuades us by a preponderance of
evidence that de Kok anticipates claim 1 of the ’981 patent.
3. Dependent Claims 2, 7, 10–17, and 21
Patent Owner argues that claims 2, 7, and 10–17 are not anticipated by
de Kok for the same reasons asserted with respect to claim 1. Patent Owner
also argues de Kok fails to anticipate dependent claims 12–15 and 17 for
additional reasons beyond those offered in connection with claim 1. PO
Resp. 31–37. Patent Owner does not contest Petitioner’s assertions that de
Kok discloses the additional limitations recited in claims 2 and 10
(systematic variation of delay times), 7 (firing a third source with another
delay), 11 and 16 (extracting coherent signals identified to each source from
the recorded signal), and 21 (the second source is towed behind the first
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source). See Paper 16, 3 (“The patent owner is cautioned that any arguments
for patentability not raised in the response will be deemed waived.”). We
have reviewed Petitioner’s arguments and evidence with respect to claims 2,
7, 10, 11, 16, and 21, and find them persuasive. See Pet. 21–23, 25, 27.
Accordingly, we find de Kok anticipates claims 2, 7, 10, 11, 16, and 21 for
the same reasons discussed above with respect to claim 1 and for the
respective reasons asserted by Petitioner for claims 2, 7, 10, 11, 16, and 21.
Patent Owner argues claims 12 and 17 (as well as claims 13–15,
which depend therefrom) are not anticipated for the additional reason that de
Kok does not disclose “wherein the extracting the signals identified to the
first source [as recited in claim 11] comprises determining trace to trace . . .
coherent components in the recorded sensor signals,” as recited in claims 12
and 17. PO Resp. 31–32. The Petition addresses the alleged anticipation of
claims 12 and 17 only in a claim chart, and merely reproduces a block quote
from a section of de Kok. Pet. 23–26 (quoting Ex. 1003, 4:47–55). The
quoted portion of de Kok discusses the need to separate shot records (the
seismic event data collected from one activation sequence including a
plurality of sources) into source records (the seismic event data collected
from multiple activation sequences that are attributed to a particular source)
and the fact that the separation is achieved during processing, preferably in
the CMP domain. Ex. 1003, 4:47–55. Patent Owner argues Dr. Ikelle’s
testimony that random noise removal is routinely done in seismic surveying,
Ex. 1002 ¶ 96, is insufficient to support an assertion of inherent anticipation
because the random noise removal is optional. PO Resp. 31–32 (citing
Trintec Indus., Inc. v. Top-U.S.A. Corp., 295 F.3d 1292, 1295 (Fed. Cir.
2002)).
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In its Reply, Petitioner points out the ’981 patent’s statement that
“determining trace to trace coherence ‘separat[es] the components of the
signals which are caused by [one source] from the random noise.’” Pet.
Reply 6 (citing Ex. 1001, 8:13–18). Petitioner cites Dr. Lynn’s testimony
that a main purpose of the CMP gather is to suppress random noise, and
argues de Kok’s disclosure that source separation is preferably done in the
CMP domain, which results in coherent data, anticipates determining trace
to trace coherence. Id. Petitioner further argues, based upon Dr. Ikelle’s
testimony, that “removing random noise . . . is an inherent part of seismic
surveying . . . and is necessarily done in De Kok.” Id. at 6–7 (citing
Ex. 2002, 202:22–25). Petitioner also contends Dr. Lynn’s testimony that
any “summation of traces is going to suppress the level of random noise,”
Ex. 1022, 133:8–11, supports a finding that de Kok’s CMP gathers suppress
random noise. Id. at 7.
Petitioner’s arguments—(1) the ’981 patent states determining trace to
trace coherence separates the components caused by a source from the
random noise; (2) a main purpose of a CMP gather is to suppress random
noise; (3) de Kok discloses preferably separating sources in the CMP
domain; and (4) any summation of traces will suppress random noise—do
not persuade us de Kok discloses that extracting the signal includes
determining trace to trace coherence. Even assuming that de Kok separates
sources in the CMP domain, Petitioner has not demonstrated sufficiently that
de Kok sums traces in the CMP domain. Moreover, even accepting
Petitioner’s conclusion that de Kok discloses CMP gathers and such gathers
suppress random noise, Petitioner has not established sufficiently that
suppressing random noise inherently requires “determining trace to trace
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coherence” as recited in claims 12–15 and 17. Specifically, Petitioner
merely points out that the ’981 patent states determining trace to trace
coherence separates random noise, but does not establish the reverse—that
separating random noise is sufficient to determine trace to trace coherence.
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.
4. Summary
Based on the record developed during trial, we are persuaded
Petitioner has demonstrated, by a preponderance of the evidence, that claims
1, 2, 7, 10, 11, 16, and 21 are anticipated by de Kok. However, Petitioner
has failed to demonstrate, by a preponderance of the evidence, that claims
12–15 and 17 are anticipated by de Kok.
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C. Asserted Obviousness of Claims 1–6 and 16, 17, 21, and 22 in
View of Beasley and Edington
Petitioner challenges claims 1–6 and 16, 17, 21, and 22 under
35 U.S.C. § 103(a) as obvious over Beasley and Edington. Pet. 43–58; Pet.
Reply 9–25. As discussed above, we have dismissed the Petition with
respect to challenges to claims 18–20 and do not address the parties’
arguments with respect to those claims.
1. Beasley (Ex. 1004)
Beasley is a United States patent directed to systems and methods “for
acquiring and processing seismic survey data from two or more seismic
sources activated simultaneously or nearly simultaneously.” Ex. 1004,
Abstract. Beasley discusses sorting traces according to CMP gathers and
filtering data to obtain useful seismic data from each source independent
from each other source. Id. Beasley explains that, if each of the seismic
sources are fired simultaneously rather than sequentially, the “sources may
be arranged to emit encoded wavefields using any desired type of coding.”
Id. at 7:54–58.
2. Edington (Ex. 1006)
Edington is a United States patent describing seismic surveying using
a series of shots in which each shot includes activating multiple sources
nearly simultaneously “with a determinable time delay between the
activation of each source for each shot.” Ex. 1006, Abstract. Edington
explains that the time delays allow separation of the recorded signals based
on the source even when the sources are activated substantially
simultaneously. Id.
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3. Independent Claim 1
Petitioner contends that Beasley discloses each of the limitations of
claim 1, with one exception. In particular, Beasley does not disclose
explicitly using the recited time delays to encode the signals from each
source even though it “discloses that any desired type of encoding could be
used for simultaneous or near simultaneous source activation.” Pet. 44.
Petitioner argues Edington teaches a specific type of encoding, specifically
time delay encoding. Id. Petitioner argues it would have been obvious to
employ Edington’s known time delay encoding with Beasley’s known
system, in order to achieve a predictable result of being able to attribute data
recorded from simultaneous or near simultaneous source activations to
specific sources. Id. at 44, 46. Petitioner provides claim charts mapping
portions of Beasley and Edington to each recited limitation of claim 1. Id. at
47–49.
Patent Owner does not argue the combination of Beasley and
Edington fails to teach any limitations recited in independent claim 1.10
Patent Owner, however, argues a person of ordinary skill in the art would
not have combined Beasley and Edington. PO Resp. 40–49. Patent Owner

10 Patent Owner responded to an apparent argument by Petitioner that
Beasley itself taught time delay encoding. Surreply 5 (citing Pet. Reply 13).
Nevertheless, Petitioner confirmed that the portion of the Reply cited by
Patent Owner was merely an argument that the hardware in Beasley was
capable of implementing the asynchronous timing taught by Edington. Pet.
Reply 13 (“Beasley itself taught POSA that its system could be used with
such asynchronous sources”) (emphasis added); Tr. 21:14–24 (“[T]he
argument here . . . is that Beasley is set up for time delays . . . there’s no
express teaching in Beasley of a varying time delay . . . that’s what we use
Edington for . . . [Figures] 7 and 8 just show[] that Beasley is set up to
handle time delays.”).
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also argues “[o]bjective indicia such as long-felt but unmet need, industry
praise, and copying form an important component of the obviousness
analysis” that “strongly support a conclusion of nonobviousness.” Id. at 55–
60.
As mentioned, Patent Owner does not dispute Petitioner’s assertion
that the combination of Beasley and Edington describes each element of
independent claim 1, but merely asserts that an ordinarily skilled artisan
would not have combined Beasley and Edington. See Paper 16, 3 (“The
patent owner is cautioned that any arguments for patentability not raised in
the response will be deemed waived.”). Accordingly, upon reviewing the
record developed during trial, we are persuaded by Petitioner’s position
regarding the relevant teachings of Beasley and Edington and address in
detail only the disputed issues relating to the combinability of Beasley and
Edington.
Petitioner argues an ordinarily skilled artisan designing seismic
surveying systems would look to both land and marine technology and,
further, that Beasley’s hardware is capable of implementing Edington’s
time-delay encoding. Pet. Reply 11–12. Patent Owner does not contest
those assertions.11 We have reviewed the evidence and Petitioner’s

11 Petitioner misinterpreted an argument in Patent Owner’s Response
regarding the non-combinability of Edington’s techniques with Beasley’s
system as being based on incompatibility of land and marine seismic
surveying technology. Pet. Reply 10–12. Patent Owner clarified its position
at oral argument that it does not contest Petitioner’s assertions that land
seismic surveying technology is relevant to marine seismic surveying and
that Beasley’s hardware is capable of implementing Edington’s time delay
encoding. Tr. 31:7–10 (“And so this is not a case about whether one would
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arguments, and we are persuaded by Petitioner’s uncontested assertions that
a person of ordinary skill would have looked to land surveying technology
when designing marine surveying systems and that Beasley’s hardware is
capable of encoding its seismic signals using time delays.
The relevance of Patent Owner’s argument that “encoding and
decoding would be considered together” is unclear. See PO Resp. 40–42.
Patent Owner asserts the parties agree that encoding and decoding are
“inextricably intertwined,” that references need to be considered in their
entirety, and that Dr. Ikelle’s failure to consider Beasley’s or Edington’s
decoding schemes results in inadequate analysis by Dr. Ikelle. Id. Patent
Owner contends Dr. Ikelle’s analysis is incomplete because he did not
explicitly consider the decoding schemes used in Beasley or Edington.
Patent Owner does not argue Dr. Ikelle is unqualified, and does not explain
persuasively why Dr. Ikelle’s failure to consider the decoding schemes
would render his consideration of Beasley’s and Edington’s teachings
incomplete. Because the parties acknowledge that encoding and decoding
schemes are intertwined, it follows that an ordinarily skilled artisan would
have understood the ramifications of using any known encoding/decoding
scheme and the need to use complementary encoding and decoding schemes.
To the extent Patent Owner is arguing Edington’s decoding scheme
requires taking multiple shots from the same source location, we are
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

look to the land and the water together. This is not a case about whether
there is some ability to do time delay using the equipment of Beasley”).
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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.
Patent Owner asserts there would have been no reason for an
ordinarily skilled artisan to combine Edington with Beasley because:
(1) Beasley’s reference to “any type of coding” excludes time-delay
encoding; (2) Beasley teaches either alternating or exactly concurrent firing
of its sources; and (3) Edington is incompatible with Beasley because
Edington’s timing method would cause smearing. PO Resp. 37–49;
Surreply 6–7. Petitioner, on the other hand, argues a person having ordinary
skill in the art would have combined Beasley’s teaching of simultaneous or
near-simultaneous shooting of multiple sources with Edington’s teaching of
using time-delay encoding because Beasley teaches that any type of coding
can be used with Beasley’s system, and both Beasley and Edington address
encoding and decoding seismic signals and simultaneous shooting of
multiple sources. Pet. 46; Pet. Reply 12–18.
Beasley expressly discloses an embodiment where its “leading and
trailing sources may be arranged to emit encoded wavefields using any type
of coding,” and both seismic energy sources are “activated concurrently
instead of sequentially.” Ex. 1004, 7:54–58. The issue in dispute is what
Beasley means by “using any type of coding” and “activated concurrently
instead of sequentially.”
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Patent Owner explains that Beasley discloses two embodiments—a
first embodiment in which leading and trailing sources are fired alternately
(with no overlap in recording the signals from the separate sources,
generating a separate shot record or data set for each source), and a second
embodiment in which two sources are fired simultaneously and “dip
filtered” to separate the signals of each source from the other. PO Resp. 10–
11 (citing Ex. 2001 ¶¶ 122, 124). Patent Owner acknowledges that
Beasley’s first embodiment “includes a prophetic disclosure that source
signature encoding using ‘encoded wavefields’ could allow the sources ‘to
be activated concurrently instead of sequentially.’” Id. at 11 (quoting
Ex. 1004, 7:54–58). Patent Owner also states that U.S. Patent No. 5,717,655
(“the ’655 patent”), of which Beasley is a continuation-in-part, “disclosed
and claimed the first embodiment.” Id. at 10 n.1.
Patent Owner points to a portion of Beasley that states coding may be
used to activate the respective sources “concurrently instead of
sequentially,” resulting in an advantage of subsurface incident points having
“improved commonality since there is no time shift and therefore no spatial
reflection point smearing between successive leading and trailing source
activations.” PO Resp. 43–44 (quoting Ex. 1004, 7:59–61); Ex. 2001 ¶ 188.
Patent Owner also cites a description of Beasley in a later-filed patent stating
Beasley discloses an embodiment where “the several sources can be
activated exactly concurrently, in which case the sources are then arranged
to emit signature-encoded wavefields.” PO Resp. at 44 (quoting Ex. 2015
(“Herkenhoff”), 2:16–18); Ex. 2001 ¶ 191. Patent Owner further asserts the
use of time delay encoding would result in a “plain” wavefield, rather than
an encoded wavefield, because “the acoustic output of the source is not
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intrinsically identifiable.” PO Resp. 45. Patent Owner contends the
submitted evidence supports an understanding that Beasley discloses firing
its seismic sources either sequentially or at exactly the same time, which
avoids spatial reflection point smearing due to improved commonality.
Patent Owner argues that, even if a skilled artisan would have
considered incorporating Edington’s time delays into Beasley’s marine
seismic surveying system, that person would not have made the proposed
combination because it would introduce an unacceptable level of spatial
reflection point smearing. PO Resp. 46–48 (citing Ex. 2001 ¶¶ 194–195).
Patent Owner argues that Beasley teaches away from using Edington’s time
delays because “Beasley expressly teaches that it would be an ‘advantage’ to
avoid this loss of resolution, which it calls ‘spatial reflection[-]point
smearing.’” PO Resp. 48 (quoting Ex. 1004, 7:59–63; Ex. 2001 ¶ 196).
Petitioner explains Figure 7 of Beasley depicts both timer 26, which is
used to introduce delay 29 to source ST relative to SL, and decoders 31 and
33, which Petitioner argues supports its proposed combination. Pet. Reply
15 (citing Ex. 1004, Fig. 7). Petitioner references a portion of Beasley’s
specification describing Figure 7 that states source SL is activated after a
delay relative to ST and, “[i]f the recorded reflected acoustic wavefields
were encoded, of course optional decoders 31 and 33 . . . would be inserted.”
Id. (quoting Ex. 1004, 7:64–8:27). Petitioner also quotes a portion of
Beasley that states the sources may be “fired simultaneously or nearly
simultaneously,” and asserts Beasley’s reference to activating sources
“concurrently” would be understood by an ordinarily skilled artisan to
include nearly concurrently, much the same as simultaneous would be
understood to include nearly simultaneous. Pet. Reply 15–16 (citing
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Ex. 1004, 8:47). Petitioner contends a person having ordinary skill would
have combined Beasley and Edington because: (1) both references “address
multishooting, encoding, and decoding”; (2) Edington teaches one type of
encoding that could have been used with Beasley’s system; and (3) it would
have been within the level of ordinary skill to use Edington’s time delays
with Beasley’s system to achieve the predicted result of isolating source
signals. Pet. Reply 16–17 (citing Ex. 1002 ¶¶ 239–244).
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.
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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 14. 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).
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.
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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 1 should be construed to exclude any amount of spatial reflection
point smearing.12 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 1
excludes any amount of smearing. Based on the record before us, we are not
persuaded the smearing allegedly introduced by combining Edington’s time

12 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.
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delay encoding with Beasley’s system would have led an ordinarily skilled
artisan away from that combination.
Patent Owner also argues objective indicia support a finding of
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 55–56. 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 57–60.
Petitioner argues Patent Owner has shown no nexus between Patent Owner’s
proffered secondary considerations and the invention of the ’981 patent. Pet.
Reply 24. Petitioner contends Patent Owner’s focus on the varied time
delays of claim 1 is insufficient because time delayed encoding “existed long
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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 1. 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.
Based on the record before us, we conclude Petitioner has
demonstrated by a preponderance of the evidence that independent claim 1
would have been obvious in view of the combination of Beasley and
Edington.
4. Dependent Claims 3–5
Petitioner argues the combination of Beasley and Edington teaches
each recited limitation of claims 3–5. Pet. 42, 52–53. Patent Owner argues
claims 3–5 are patentable for the same reasons asserted with respect to
independent claim 1 and further argues Petitioner failed to show that the
combination of Beasley and Edington teaches the additional limitations
recited in dependent claims 3–5.
a) Claims 3 and 4
Claims 3 and 4 depend from claim 1 and further recite in relevant part
that “the time interval is varied” quasi-randomly (claim 3) or randomly
(claim 4). Petitioner asserts:
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Once one of ordinary skill selects the known source signal
encoding option of time interval variation, selecting the time
intervals at random, pseudo-randomly, or based on a
predetermined correlation were all obvious variants, the
selection of which was well within the skill of one having
ordinary skill in the art prior to the earliest filing date claimed by
the ’981 patent.

Pet. 52 (citing Ex. 1002 ¶ 259). Petitioner further argues “Edington
specifically contemplates ways to utilize random aspects of time delays that
are unavoidable.” Id. (quoting Ex. 1006, 4:46–50). Petitioner argues Dr.
Lynn “agreed that systematic, random, and quasi-random variations were all
known design choices within the skill of POSA.” Pet. Reply 21.
Patent Owner argues Beasley does not disclose time delay variation at
all and Edington discloses varying delays according to a formulaic pattern.
PO Resp. 49–50. Patent Owner contends Petitioner never articulates a
reason an ordinarily skilled artisan would incorporate Edington’s time delays
into Beasley’s system, “then immediately discard Edington’s
recommendation to use a non-random sequence of time delays.” Id. at 51.
Patent Owner asserts Edington’s preferred variation of delays by a constant
amount was to simplify the decoding scheme. Id. (citing 2001 ¶ 201).
Petitioner never asserts that the proposed combination teaches random
or quasi-random variations in the time delays. Instead, as pointed out by
Patent Owner, Petitioner merely argues that such delays would have been
options available to a designer of the proposed system, and selecting random
or quasi-random variations would have been a design choice. PO Resp. 50–
51 (citing Ex. 2002, 109:12–16, 158:2–11); see Pet. 52; Pet. Reply 21.
Petitioner’s challenge lacks any meaningful discussion of whether there
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were only a limited number of options or why an ordinarily skilled artisan
would have selected random or quasi-random variations.
Finally, Petitioner’s argument that Edington uses unavoidable random
time delays is also unavailing. The relevant portion of Edington states “for
sources which exhibit considerable random variation in operation from the
selected activation time, the true time of activation should be measured and
recorded to improve the accuracy of the separation process.” Ex. 1006,
4:46–50. As Patent Owner contends, that disclosure of Edington merely
teaches it is possible to compensate for undesired random variations and
does not teach varying a time delay randomly or quasi-randomly, as recited
in claims 3 and 4. Moreover, the evidence of secondary considerations
submitted by Patent Owner (Exs. 2007, 2017, 2019–2021, 2023–2025)
discussing the import of using random or incoherent variations supports a
finding of nonobviousness. Accordingly, we find Petitioner has not
demonstrated, by a preponderance of the evidence, that claims 3 and 4
would have been obvious in view of the teachings of Beasley and Edington.
b) Claim 5
Petitioner argues given “the use of time delay encoding, it would have
been obvious to a person of ordinary skill in the art to use time intervals that
vary in steps of about 100 milliseconds.” Pet. 53. Patent Owner argues
claim 5’s recitation of varying the time delays “in steps of about 100
milliseconds” is not taught by Beasley or Edington. PO Resp. 53. Patent
Owner asserts that, even though Dr. Ikelle testifies that “100 milliseconds is
just longer than the duration of the source signature for most marine seismic
sources,” Petitioner does not explain why a person having ordinary skill
would vary the time delays in steps of about 100 milliseconds, as opposed to
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some other delay that is greater than 100 milliseconds. Id.; see, e.g., In re
Chaganti, 554 Fed. App’x 917, 922 (Fed. Cir. 2014) (“It is not enough to
say that . . . to do so would ‘have been obvious to one of ordinary skill.’
Such circular reasoning is not sufficient—more is needed to sustain an
obviousness rejection.”). In its Reply, Petitioner merely repeated its
argument from the Petition. Pet. Reply 22.
On the record before us, Petitioner has not articulated sufficiently why
an ordinarily skilled artisan would vary delay times in steps of about 100
milliseconds. Accordingly, Petitioner has failed to demonstrate, by a
preponderance of the evidence, that claim 5 would have been obvious in
view of the teachings of Beasley and Edington.
5. Dependent Claims 2, 6, 16, 17, 21, and 22
Petitioner argues the combination of Beasley and Edington teaches
each recited limitation in dependent claims 2, 6, 16, 17, 21, and 22. Pet. 51,
53, 56–58. Patent Owner argues only that dependent claims 2, 6, 16, 17, 21,
and 22 are patentable for the same reasons asserted with respect to
independent claim 1. See Paper 16, 3 (“The patent owner is cautioned that
any arguments for patentability not raised in the response will be deemed
waived.”). We have reviewed Petitioner’s arguments and evidence with
respect to claims 2, 6, 16, 17, 21, and 22, and find them persuasive.
Accordingly, we find claims 2, 6, 16, 17, 21, and 22 would have been
obvious in view of the combined teachings of Beasley and Edington for the
same reasons discussed above with respect to claim 1 and for the respective
reasons asserted by Petitioner for claims 2, 6, 16, 17, 21, and 22.
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6. Summary
Based on Petitioner’s arguments and evidence, we are persuaded
Petitioner has demonstrated, by a preponderance of the evidence, that claims
1, 2, 6, 16, 17, 21, and 22 would have been obvious in view of the
combination of Beasley and Edington. Petitioner, however, has failed to
demonstrate, by a preponderance of the evidence, that claims 3–5 would
have been obvious in view of the combination of Beasley and Edington.
III. CONCLUSION
Petitioner has demonstrated, by a preponderance of the evidence, the
unpatentability of: (1) claims 1, 2, 7, 10, 11, 16, and 21 of the ’981 patent as
anticipated by de Kok; and (2) claims 1, 2, 6, 16, 17, 21, and 22 as obvious
in view of Beasley and Edington. Petitioner has not demonstrated, by a
preponderance of the evidence, the unpatentability of: (1) claims 12–15 and
17 of the ’981 patent as anticipated by de Kok; and (2) claims 3–5 as
obvious in view of Beasley and Edington. Petitioner’s challenges to claims
18–20 are dismissed.
IV. ORDER
In consideration of the foregoing, it is
ORDERED that claims 1, 2, 6, 7, 10, 11, 16, 17, 21, and 22 of the
’981 patent are held unpatentable;
FURTHER ORDERED that the Petition is dismissed with respect to
the challenges to claims 18–20; and
FURTHER ORDERED that, because this is a Final Written Decision,
parties to the proceeding seeking judicial review of the decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

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PETITIONER:
Michael L. Kiklis
Scott McKeown
Kevin Laurence
Christopher Ricciuti
Katherine Cappaert
OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P.
CPDocketKiklis@oblon.com
CPDocketMcKeown@oblon.com
CPDocketLaurence@oblon.com
CPDocketCappaert@oblon.com
CPDocketRicciuti@oblon.com

PATENT OWNER:
David I. Berl
Jessamyn Berniker
David M. Krinsky
Thomas S. Fletcher
Christopher A. Suarez
WILLIAMS & CONNOLLY, LLP
dberl@wc.com
jberniker@wc.com
dkrinsky@wc.com
tfletcher@wc.com
csuarez@wc.com