WesternGeco L.L.C. v. ION Geophysical Corp., CASE NO. 4:09-CV-1827

CourtU.S. District Court — Southern District of Texas
Writing for the CourtKEITH P. ELLISON
PartiesWESTERNGECO L.L.C., Plaintiff, v. ION GEOPHYSICAL CORPORATION, et al., Defendants.
Docket NumberCASE NO. 4:09-CV-1827
Decision Date26 June 2012

WESTERNGECO L.L.C., Plaintiff,
v.
ION GEOPHYSICAL CORPORATION, et al., Defendants.

CASE NO. 4:09-CV-1827

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Dated: June 26, 2012


AMENDED MEMORANDUM AND ORDER

A number of motions for summary judgment are pending before the Court. Broadly, those motions can be divided into two categories: (1) motions addressing patent invalidity; and (2) motions addressing patent infringement. In this Memorandum and Order, the Court considers first the invalidity motions, including Defendants' Motion for Summary Judgment of Patent Invalidity of the Bittleston Patents (Doc. No. 273), and Defendants' Motion for Summary Judgment of Patent Invalidity of the Zajac Patent (Doc. No. 270). The Court also considers, in examining invalidity, the portion of Plaintiff's Motion for Summary Judgment of Willful Infringement of the '520 Patent (Doc. No. 276) in which Plaintiff moves for summary judgment on patent validity. After considering these three motions, all responses thereto, and the applicable law, the Court concludes that each motion must be denied.

The second category of motions at issue, those that address patent infringement, includes Defendants' Motion for Summary Judgment of Non-Infringement of the

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Bittleston Patents' Apparatus Claims (Doc. No. 272); Defendants' Motion for Summary Judgment of Non-Infringement of the '038 Patent's Systems Claims (Doc. No. 269); and (3) Plaintiff's Motion for Summary Judgment of Willful Infringement of the '520 Patent. After considering these motions, all responses thereto, and the applicable law, the Court concludes that Defendants' Motion for Summary Judgment of Non-Infringement of the Bittleston Patents' Apparatus Claims must be denied. Plaintiff's Motion for Summary Judgment of Willful Infringement of the '520 Patent must be granted in part and denied in part. Defendants' Motion for Summary Judgment of Non-Infringement of the '038 Patent's Systems Claims also must be granted in part and denied in part.

INVALIDITY MOTIONS

I. BACKGROUND

Plaintiff WesternGeco, L.L.C. ("WesternGeco") brings claims against Defendants under 35 U.S.C. § 271 based on the alleged infringement of a number of claims in the following WesternGeco patents: (1) U.S. Patent No. 6,932,017 (the "017 patent"); (2) U.S. Patent No. 7,080,607 (the "607 patent"); (3) U.S. Patent No. 7,162,967 (the "967 patent"); (4) U.S. Patent No. 7,293,520 (the "520 patent"); and (5) U.S. Patent No. 6,691,038 (the "038 patent" or the "Zajac patent"). Defendants in this case, ION Geophysical Corporation ("ION"), and Fugro-Geoteam, Inc.; Fugro Geoteam AS; Fugro Norway Marine Services AS; Fugro, Inc.; Fugro (USA), Inc.; and Fugro Geoservices, Inc. (collectively, "Fugro" or "the Fugro Defendants"), jointly have filed four motions for summary judgment. Two of these motions address patent invalidity. (Doc. Nos. 270, 273.) The other two address patent infringement. (Doc. Nos. 269, 272.) Plaintiff's pending motion for summary judgment addresses both invalidity and infringement. (Doc.

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No. 276.) As the Court has addressed the factual background in this case in considering a number of prior motions, it does not do so again here.

II. LEGAL STANDARDS

A. Summary Judgment

Summary judgment is appropriate where the pleadings and evidence show that no genuine issue of material fact exists, and that the movant therefore is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The party moving for summary judgment must demonstrate the absence of any genuine issue of material fact; however, that party need not negate the elements of the nonmovant's case. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1997). If the moving party meets this burden, the nonmoving party then must go beyond the pleadings to identify specific facts showing there is a genuine issue for trial. Id. "A fact is 'material' if its resolution in favor of one party might affect the outcome of the lawsuit under governing law." Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (citation omitted).

Factual controversies should be resolved in favor of the nonmoving party. Liquid Air Corp., 37 F.3d at 1075. However, "summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Id. at 1076 (internal quotations omitted). Importantly, "[t]he nonmovant cannot satisfy his summary judgment burden with conclusional allegations, unsubstantiated assertions, or only a scintilla of evidence." Diaz v. Superior Energy Servs., LLC, 341 F. App'x 26, 28 (5th Cir. 2009) (citation omitted). A court should not, in the absence of proof, assume that the nonmoving party could or would provide the necessary facts. Liquid Air Corp., 37 F.3d at 1075.

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The Federal Circuit has made clear that "summary judgment is as appropriate in a patent case as in any other." Barmag Barmer Maschinenfabrik AG v. Murata Machinery, Ltd., 731 F.2d 831, 835 (Fed. Cir. 1984). That is, "[w]here no issue of material fact remains and the movant is entitled to judgment as a matter of law," the court should grant summary judgment in order "to avoid unnecessary expense to the parties and wasteful utilization of the jury process and judicial resources." Id.

B. Patent Invalidity under 35 U.S.C. § 112

An issued patent is presumed valid, 35 U.S.C. § 282, and an accused infringer has the burden of proving invalidity by clear and convincing evidence. Aero Products Int'l, Inc. v. Intex Recreation Corp., 466 F.3d 1000, 1015 (Fed. Cir. 2006) (citation omitted); Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955, 962 (Fed. Cir. 2001). Section 112 of Title 35 of the United States Code governs what must be included in a patent specification. The requirements of Section 112 include the written description requirement, the enablement requirement, the distinctiveness or definiteness requirement, and, for cases filed prior to September 2011—as this one was—the "best mode" requirement.

1. Definiteness

Section 112 ¶ 2 requires a patent to "point[] out and distinctly claim[] the subject matter which the applicant regards as his invention." 35 U.S.C. § 112 ¶ 2. Claims are considered indefinite when they are "not amenable to construction or are insolubly ambiguous." Young v. Lumenis, Inc., 492 F.3d 1336, 1346 (Fed. Cir. 2007). The Federal Circuit has explained:

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[T]he definiteness of claim terms depends on whether those terms can be given any reasonable meaning. Indefiniteness requires a determination whether those skilled in the art would understand what is claimed. The purpose of the definiteness requirement is to ensure that the claims, as interpreted in view of the written description, adequately perform their function of notifying the public of the scope of the patentee's right to exclude.

Hearing Components, Inc. v. Shure Inc., 600 F.3d 1357, 1366-67 (Fed. Cir. 2010) (citations omitted). This distinctiveness or definiteness requirement is met if "one skilled in the art would understand the bounds of the claim when read in light of the specification." Exxon Research & Eng'g Co. v. United States, 265 F.3d 1371, 1375 (Fed. Cir. 2001) (citing Miles Labs., Inc. v. Shandon, Inc., 997 F.2d 870, 875 (Fed. Cir. 1993)). Indefiniteness is a question of law. IGT v. Bally Gaming Int'l, Inc., 659 F. 3d 1109, 1119 (Fed. Cir. 2011).

Section 112, ¶ 6 provides that "[a]n element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof." 35 U.S.C. § 112 ¶ 6. Such a "means-plus-function" claim format allows a patentee to "describe an element of his invention by the result accomplished or the function served, rather than describing the item or element to be used." Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 27 (1997). If a claim element that recites a function uses the word "means," it creates a presumption that the element is drafted in means-plus-function format. Id.; TriMed, Inc. v. Stryker Corp., 514 F.3d 1256, 1259 (Fed. Cir. 2008). The means-plus-function presumption can be rebutted if the claim

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itself recites a structure to accomplish the functions identified in the claim. Welker Bearing Co. v. PHD, Inc., 550 F.3d 1090, 1096 (Fed. Cir. 2008).

If a patentee uses means-plus-function language, he "must set forth in the specification an adequate disclosure showing what is meant by that language. If an applicant fails to set forth an adequate disclosure, the applicant has in effect failed to particularly point out and distinctly claim the invention as required by the second paragraph of section 112." Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1338 (Fed. Cir. 2008) (quoting In Re Donaldson Co., 16 F.3d 1189, 1195 (Fed. Cir. 1994) (en banc)). Such a failure results in invalidity for indefiniteness. In re Dossel, 115 F.3d 942, 946 (Fed. Cir. 1997).

If a court determines that the means-plus-function analysis applies, it must decide what the claimed...

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