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ConocoPhillips Co. v. In-Depth Compressive Seismic, Inc.

United States District Court, S.D. Texas, Houston Division

April 26, 2019

CCONOCOPHILLIPS COMPANY, Plaintiff,
v.
IN-DEPTH COMPRESSIVE SEISMIC, INC., and IN-DEPTH GEOPHYSICAL INC., Defendants. Disputed Term Patent Plaintiff s Cons truetion Defendants' Construction Disputed Term Patent Plaintiff s Construction Defendants' Construction Disputed Term Patent Plaintiff s Construction Defendants' Construction Disputed Term Patent Plaintiff s Construction Defendants' Cons truetion Disputed Term Patent Plaintiff s Construction Defendants' Cons truetion Disputed Term Patent Plaintiff's Construetion Defendants' Construction Disputed Term Patent Plaintiff s Construction Defendants' Construction Disputed Term Patent Plaintiff s Construction Defendants' Construction Patent Disputed Term Construction

          MEMORANDUM OPINION AND ORDER

          SIM LAKE, UNITED STATES DISTRICT JUDGE

         This action is brought by plaintiff, Conoco Phillips Company, against defendants, In Depth Compressive Seismic Inc. and In-Depth Geophysical, Inc., under the Patent Laws of the United States, 35 U.S.C. § 1, et seq., for infringement of four United States Patents:[1] (1) U.S. Patent No. 8, 897, 094 ("the '094 Patent"), entitled "Marine Seismic Data Acquisition Using Designed Non-Uniform Streamer Spacing," issued on November 25, 2014;[2] (2) U.S. Patent No. 9, 632, 193 ("the *193 Patent"), entitled "Compressive Sensing," issued on April 25, 2017;[3] (3) U.S. Patent No. 9, 823, 372 ("the '372 Patent") entitled, "Controlled Spaced Streamer Acquisition," issued on November 21, 2017;[4] and (4) U.S. Patent No. 9, 846, 248 ("the '248 Patent"), entitled "Seismic Data Acquisition Using Designed Non-Uniform Receiver Spacing," issued on December 19, 2017.[5] Plaintiff has also asserted claims against the defendants for false and misleading statements under the Lanham Act, 15 U.S.C. § 1125. Plaintiff and defendants disagree about the meaning of nine terms used in the *248 Patent and three terms used in the *193 Patent and ask the court to construe the disputed terms.[6] See Markman v. Westview Instruments, Inc., 116 S.Ct. 1384, 1387 (1996) ("We hold that the construction of a patent, including terms of art within its claim, is exclusively within the province of the court.").

         In support of its preferred constructions plaintiff has filed Plaintiff's Opening Claim Construction Brief ("Plaintiff's Opening Brief") (Docket Entry No.. 40), in response to which defendants have filed Defendant's Response (Docket Entry No. 41), plaintiff has replied in Plaintiff's Reply Claim Construction Brief ("Plaintiff's Reply") (Docket Entry No. 44), and defendants have replied in Defendants' Claim Construction Sur-Reply ("Defendants' Sur-Reply") (Docket Entry No. 46). The parties have also filed their P.R. 4-3 Joint Claim Construction and Prehearing Statement ("Joint Claim Construction Statement") (Docket Entry No. 38). On March 28, 2019, the court conducted a hearing at which the parties presented argument on four of the disputed terms.[7] After the hearing defendants filed Defendants' Supplemental Briefing after Markman Hearing (Docket Entry No. 50), and plaintiff filed Plaintiff ConocoPhillips Company's Supplemental Briefing after Markman Hearing (Docket Entry No. 51). The proper construction of eleven claim terms remains in dispute. The parties also dispute the effect of the "preamble" on one claim term. After carefully considering the parties' arguments, the evidence, and the applicable law, the court construes the disputed terms as stated below.

         I. Legal Standard for Claim Construction

         In Markman, 116 S.Ct. at 1387, the United States Supreme Court held that the construction of patent claims is a matter of law exclusively for the court. When the parties dispute the meaning of particular claim terms,

the judge's task is not to decide which of the adversaries is correct. Instead the judge must independently assess the claims, the specification, and if necessary the prosecution history, and relevant extrinsic evidence, and declare the meaning of the claims.

Exxon Chemical Patents, Inc. v. Lubrizol Corp., 64 F.3d 1553, 1556 (Fed. Cir. 1995), cert, denied, 116 S.Ct. 2554 (1996).

         Courts begin claim construction by ascertaining the "ordinary and customary meaning" of disputed claim terms. Phillips v. AWH Corporation, 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc), cert. denied, 126 S.Ct. 1332 (2006) (quoting Vitronics Corp. v. Conceotronic, Inc.. 90 F.3d 1576, 1582 (Fed. Cir. 1996)). "[T]he ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application." Id. at 1313 (citing Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004)). "[T]he person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification." Id.

In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words. See Brown v. 3M. 265 F.3d 1349, 1352 (Fed. Cir. 2001) (holding that the claims did "not require elaborate interpretation"). In such circumstances, general purpose dictionaries may be helpful. In many cases that give rise to litigation, however, determining the ordinary and customary meaning of the claim requires examination of terms that have a particular meaning in a field of art. Because the meaning of a claim term as understood by persons of skill in the art is often not immediately apparent, and because patentees frequently use terms idiosyncratically, the court looks to "those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean." Innova, 381 F.3d at 1116. Those sources include "the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art."

Id. at 1314 (quoting Innova, 381 F.3d at 1116).

         "Generally speaking, [courts] indulge a 'heavy presumption' that a claim term carries its ordinary and customary meaning." CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002). "For example, if an apparatus claim recites a general structure (e.g., a noun) without limiting that structure to a specific subset of structures (e.g., with an adjective), [the court] will generally construe the term to cover all known types of that structure that are supported by the patent disclosure." Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998) . See, e.g., Virginia Panel Corp. v. MAC Panel Co., 133 F.3d 860, 865-66 (Fed. Cir. 1997), cert, denied, 119 S.Ct. 52 (1998) (term "reciprocating" is given its ordinary meaning and not limited to mere linear reciprocation); Sjolund v. Musland, 847 F.2d 1573, 1581-82 (Fed. Cir. 1988) (refusing to limit "baffle" to rigid baffles and "panel" to panels of lattice construction).

         There are several exceptions to the general rule that claim terms carry their ordinary and customary meaning. A "claim term will not receive its ordinary meaning if the patentee acted as his own lexicographer and clearly set forth a definition of the disputed claim term in either the specification or prosecution history." CCS Fitness, 288 F.3d at 1366. See also Hormone Research Foundation, Inc. v. Genentech, Inc., 904 F.2d 1558, 1563 (Fed. Cir. 1990), cert, dismissed. 111 S.Ct. 1434 (1991) ("It is a well-established axiom in patent law that a patentee is free to be his or her own lexicographer . . . and may use terms in a manner contrary to or inconsistent with one or more of their ordinary meanings."). A claim term may also be interpreted more narrowly than it otherwise would be "if the intrinsic evidence shows that the patentee distinguished that term from prior art on the basis of a particular embodiment, expressly disclaimed subject matter, or described a particular embodiment as important to the invention." Id. at 1366-67 (citing Spectrum International, Inc. v. Sterilite Corp., 164 F.3d 1372, 1378 (Fed. Cir. 1998) (limiting term's ordinary meaning based on statements that distinguished the invention from prior art); SciMed Life Systems, Inc. v. Advanced Cardiovascular Systems, Inc., 242 F.3d 1337, 1343-44 (Fed. Cir. 2001) (limiting claim term based in part on statements in the specification indicating that "all embodiments" of the claimed invention used a particular structure); and Toro Co. v. White Consolidated Industries, Inc., 199 F.3d 1295, 1301-02 (Fed. Cir. 1999) (limiting claim term based in part on statements in the specification describing a particular structure as "important to the invention")). "A claim term also will not have its ordinary meaning if the term 'chosen by the patentee so deprive[s] the claim of clarity' as to require resort to the other intrinsic evidence for a definite meaning." Id. at 1367 (quoting Johnson Worldwide Associates, Inc. v. Zebco Corp., 175 F.3d 985, 990 (Fed. Cir. 1999)). And "[a]s a matter of statutory authority, a claim term will cover nothing more than the corresponding structure or step disclosed in the specification, as well as equivalents thereto, if the patentee phrased the claim in step- or means-plus-function format." Id. (citing 35 U.S.C. § 112 ¶ 6).

         Courts rely on two types of evidence when considering claim construction disputes: (1) intrinsic evidence (i.e., the language of the claim itself, the patent specification, and the prosecution history of the patent) and (2) extrinsic evidence (i.e., evidence external to the patent and prosecution history such as dictionaries, treatises, and expert and inventor testimony). CCS Fitness, 288 F.3d at 1366.

         A. Intrinsic Evidence

         The language of the claim is "'of primary importance, in the effort to ascertain precisely what it is that is patented." Phillips, 415 F.3d at 1312 (quoting Merrill v. Yeomans, 94 U.S. 568, 570 (1876)). This is "[b]ecause the patentee is required to Mefine precisely what his invention is.'" Id. (quoting White v. Dunbar, 7 S.Ct. 72, 75 (1886)). Courts, therefore, carefully consider the context within which a particular term is used in an asserted claim, as well as how the term is used in other claims within the same patent. Id. at 1314. Other intrinsic sources can also be helpful. For example, "the specificationAis always highly relevant to the claim construction analysis'" and can be either dispositive or "the single best guide to the meaning of a disputed term." Id. at 1315 (quoting Vitronics, 90 F.3d at 1582). See also CVI/Beta Ventures, Inc. v. Tura LP. 112 F.3d 1146, 1153 (Fed. Cir. 1997), cert, denied sub nom. Marchon Eyewear v. Tura LP, 118 S.Ct. 1039 (1998) ("[T]he patent drawings are highly relevant in construing the . . . limitations of the claims."). While "[i]t is therefore entirely appropriate for a court, when conducting claim construction, to rely heavily on the written description [i.e., the specification] for guidance as to the meaning of the claims," Phillips, 415 F.3d at 1317, it is important that the specification be used only to interpret the meaning of a claim, not to confine patent claims to the embodiments described therein. Id. at 1323 ("although the specification often describes very specific embodiments of the invention, we have repeatedly warned against confining the claims to those embodiments") .

         The patent's prosecution history should also be considered when offered for purposes of claim construction. Phillips, 415 F.3d at 1317. The prosecution history "consists of the complete record of the proceedings before the PTO and includes the prior art cited during the examination of the patent." Id. "[T]he prosecution history can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be." Id. But "because the prosecution history represents an ongoing negotiation between the PTO and the applicant, rather than the final production of that negotiation, it often lacks the clarity of the specification and thus is less useful for claim construction purposes." Id.

         B. Extrinsic Evidence

         The court may also look to extrinsic evidence, including dictionaries, treatises, and expert testimony, to help it reach a conclusion as to a term's meaning. See Phillips, 415 F.3d at 1317-18 (citing Vitronics, 90 F.3d at 1583). The court must be mindful that extrinsic evidence may only supplement or clarify - not displace or contradict - the intrinsic evidence. Id. at 1319.

         II. Construction of Disputed Terms

         The parties dispute the construction of nine terms used in the '248 patent, and three terms used in the '193 patent. The disputed terms in the '248 patent are: (1) "two horizontal directions," (2) "both horizontal directions," (3) "in at least one horizontal direction," (4) "in at least one direction," (5) "deliberately non-uniform," (6) "the deliberately non-uniform direction," (7) "the non-uniform spacing direction," (8) "the non-uniform direction," and (9) "wherein the receivers are not aligned in at least one of the two horizontal directions." The disputed terms in the *193 patent are: (1) "determining optimal sampling grid during seismic data reconstruction," (2) "deriving a mutual coherence proxy, wherein the mutual coherence proxy is a proxy for mutual coherence when S is over-complete and wherein the mutual coherence proxy is exactly the mutual coherence when S is a Fourier transform," and (3) "stochastic global optimization method."

         A. Terms from the '248 Patent

         1. "Two Horizontal Directions" and Related Terms

         (a) "Two Horizontal Directions"

Disputed Term
Patent
Plaintiff s Cons truetion
Defendants' Construction

"two horizontal directions"

`248 claims 1, 10, 14 and 15

Plain and ordinary meaning.

Along each source or receiver line (in-line) and between each source or receiver line (cross-line).

         Citing Phillips, 415 F.3d at 1314, and asserting that "[t]he A248 Patent does not set out a special definition for 'two horizontal directions, '"[8] plaintiff argues that the term "two horizontal directions"

is easily understood and needs no construction. For example, looking down at a piece of paper, there are two horizontal directions on the paper (figuratively referred to as, e.g., left/right and up/down, north/south and east/west, or simply the "x" and "y" directions). This understanding of "two horizontal directions" is nothing more than application of the widely accepted meanings of these words.[9]

         Defendants respond that their proposed construction of "two horizontal directions" to mean "along each source or receiver line (in-line) and between each source or receiver line (cross-line)" is "consistent within the context of the claims, the specification, and the prosecution history."[10] In support of their proposed construction defendants cite (1) the detailed descriptions of the arrangements in FIGS. 2-5 and 7-10 which "refer[] to spacing along each source or receiver line (also referred to as in-line) and source or receiver line spacing (i.e. between each source or receiver line-also referred to as cross-line);"[11] (2) the critical guestion identified in the specification, i.e., "how variable can we space the lines and stations and still recover our wavefield accurately, "[12] and (3) statements that plaintiff made to distinguish the '248 Patent from prior art during the prosecution history, i.e., that

[c]laims 1, 11 and 16 recite methods of acquiring marine seismic data by intentionally introducing non-uniform spacing between seismic receivers and/or seismic sources. More specifically, the spacing between receiver lines can vary (59ab vs 59bc in FIG. 5) as well as the spacing between receivers within a receiver line (57 of FIG. 5), which account for the variation along two horizontal directions (FIG. 5 represents a top view).[13]

         Defendants argue that this prosecution history "confirms that the spacing along each receiver line (in-line) and between each receiver line (cross-line) accounts for the variation along two horizontal directions."[14]

         Plaintiff responds that "Figures 6 and 11 in the '248 patent provide undisputable intrinsic evidence that 'two horizontal directions' are not limited to 'in-line' or 'cross-line.'"[15] Plaintiff argues:

Tellingly, Defendants cite Figures 2-5 and 7-10 and omit any reference to Figures 6 and 11 in their argument. Instead, they state their position is supported by "almost every embodiment." . To be sure, the embodiments that Defendants fail to mention are the embodiments shown in Figures 6 and 11 that directly contradict their proposed construction.[16]

         Defendants reply that plaintiff "misapplies [defendants'] construction because the specification uses source and receiver lines to describe all the figures - including figures 6 and 11 where the sources and receivers are not aligned, and lines are not illustrated between the sources and receivers."[17] Defendants explain that

[a]lthough figures 6 and 11 do not illustrate lines between the receivers, it is clear from their description that each includes "an inventive arrangement of lines of seismic receivers."' Dkt. 41-3 ('248 Patent) at 3:4-6; 20-22. Likewise, none of the figures illustrate lines between the source points, however, the figures are consistently referred to as illustrating source and receiver lines. Dkt. 41 at p. 14.[18]

         After carefully considering all of the evidence the court concludes that the term "two horizontal directions" is sufficiently clear to make even resort to a dictionary unnecessary. See Chef America, Inc. v. Lamb-Weston, Inc., 358 F.3d 1371, 1373 (Fed. Cir. 2004) (as a general rule ordinary English words "whose meaning is clear and unguestionable" need no further construction). Neither party has argued the existence of a customary meaning in the art that differs from or contradicts the plain and ordinary meaning stated by the plaintiff. Nor does anything in either the specification or the prosecution history clearly support the defendant's contention that the plaintiff intended to use the term "two horizontal directions" in a manner other than according to its plain and ordinary meaning. Although the specification discloses source and receiver lines, those lines are discussed only with respect to specific examples of the invention described in the specification, and "[a]s a general rule claims of a patent are not limited to the preferred embodiment . . . or to the examples listed within the patent specification." Dow Chemical Co. v. United States, 226 F.3d 1334, 1342 (Fed. Cir. 2000). See also Innova, 381 F.3d at 1117 ("[P]articular embodiments appearing in the written description will not be used to limit claim language that has broader effect.").

         Defendants also argue that the plaintiff ascribed a special meaning to the term "two horizontal directions" in the prosecution history. See Spectrum International, 164 F.3d at 1378-79 (explicit meanings given to claim terms in order to overcome prior art will limit those terms accordingly). In particular, defendants argue that during prosecution of the '248 patent plaintiff argued in a June 8, 2011, appeal brief that

Claims 1, 11 and 16 recite methods of acquiring marine seismic data by intentionally introducing non-uniform spacing between seismic receivers and/or seismic sources. More specifically, the spacing between receiver lines can vary (59ab vs 59bc in FIG. 5) as well as the spacing between receivers within a receiver line (57 of FIG. 5), which account for the variation along two horizontal directions (FIG. 5 represents a top view) . This non- uniform or irregular spacing can acquire seismic data that can be more accurately reconstructed. . .
Clay is deficient because it does not teach the feature described above. Contrary to the Examiner's assertion, FIG. 7 of Clay does not disclose the limitation "wherein the receivers are not aligned in at least one of the two horizontal directions."[19]

         Defendants argue that these statements in the June 8, 2011, appeal brief "clearly confirm[] that the spacing along each receiver line (in-line) and between each receiver line (cross-line) accounts for the variation along two horizontal directions."[20] However, defendants overlook the fact that the appeal brief referred to only one figure, Figure 5 of thex248 application, a figure that expressly showed spacing between receiver lines and between receivers within a line. The argument cited by defendants was focused on Figure 5 and neither characterized all embodiments as falling within the description of that one figure nor clearly disavowed embodiments represented in other figures not addressed in that brief. See Home Diagnostics, Inc. v. LifeScan, Inc., 381 F.3d 1352, 1358 (Fed. Cir. 2004) ("Absent a clear disavowal or contrary definition in the specification or the prosecution history, the patentee is entitled to the full scope of its claim language."). To the contrary, the appeal brief stated that "Claims 1, 11 and 16 . . . intentionally introduc[e] non-uniform spacing between seismic receivers and/or seismic sources."[21] This broad description of non-uniform spacing is consistent not only with Figure 5 but also with Figures 6 and 11 which do not depict any in-line or cross-line deployment of receivers. The patentee's description of an embodiment where receiver lines and source lines are present sheds no light on the meaning of "two horizontal directions" in embodiments where receiver lines and source lines are not present, e.g.. Figures 6 and 11. Instead, this exchange is an example of how carefully-crafted arguments in support of patentability can avoid creating ambiguous or adverse prosecution history. By stating clearly and particularly that the statements in the brief described the embodiment shown in Figure 5, the applicant ensured that those of ordinary skill in the art - as well as courts, if need be - could evaluate the import and scope of the statements. Thus, because this argument was plainly limited to the embodiment shown in Figure 5, it cannot be said to be a clear statement limiting the scope of "two horizontal directions" in general. Defendants thus have not shown that sufficient reasons exist to import a limited definition of this term into the clear language of the claims.

         Neither the term "in-line" nor the term "cross-line" used in the defendants' proposed construction appear in theA248 Patent, and as defendants recognize, "[t]he term *two horizontal directions' . . . refers to the lateral spacing between seismic receivers and/or between seismic source points, "[22] i.e., not between seismic receiver lines or seismic source lines. This conclusion is supported by the language of the claims in which the term "two horizontal directions" occurs because each of those claims clearly states that the spacing in "two horizontal directions" refers to spacing between any two receivers or any two sources, not between any two receiver lines or source lines. In pertinent part the patent states:

The invention claimed is:
1. A method of acquiring seismic data comprising the steps of:
a. deploying receivers in a survey area wherein each receiver is laterally spaced from one another in two horizontal directions wherein the lateral spacing in at least one horizontal direction is deliberately non-uniform, wherein the receivers are not aligned in at least one of the two horizontal directions and wherein the spacing between any two seismic receivers in the deliberately non-uniform direction varies by a distance of at least five percent between the largest spacing and smallest spacing;
10. A method of acquiring seismic data comprising the steps of:
a. deploying receivers in a survey area and identifying seismic source points within the survey area where each source point is laterally spaced from one another in two horizontal directions wherein the lateral spacing in at least one horizontal direction is deliberately non-uniform, wherein the receivers are not aligned in at least one of the two horizontal directions and wherein the spacing between any two seismic source points in the deliberately non-uniform direction varies by a distance of at least five percent between the largest spacing and smallest spacing;
14. A method of acquiring seismic data comprising the steps of:
a. deploying receivers in a survey area where each receiver is laterally spaced from one another in two horizontal directions and identifying source points wherein each source point is laterally spaced from one another wherein the lateral spacing for each of the source points and for each of the receivers is deliberately non-uniform in at least one horizontal direction, wherein the receivers are not aligned in at least one of the two horizontal directions and wherein the horizontal spacing between any two seismic receivers in the deliberately non-uniform direction varies by a distance of at least five percent between the largest spacing and smallest spacing and further wherein the horizontal spacing between any two seismic source points in the deliberately non-uniform direction varies by a distance of at least five percent between the largest spacing and smallest spacing.[23]

         The court concludes that the term "two horizontal directions" is not limited to spacing "along each source or receiver line (inline) or between each source or receiver line (cross-line)" as defendants argue but, instead, needs no construction and is subject only to is plain and ordinary meaning.

         (b) Terms Related to "Two Horizontal Directions"

Disputed Term
Patent
Plaintiff s Construction
Defendants' Construction

"both horizontal directions"

`248 claims 2, 11, 15

Plain and ordinary meaning.

Both of the two horizontal directions.

"in at least one horizontal direction"

`248 claims 1, 10, and 14

Plain and ordinary meaning.

In at least one of the two horizontal directions.

"in at least one direction"

`248 claims 2 and 11

Plain and ordinary-meaning.

In at least one of the two horizontal directions.

         Plaintiffs argue that the terms related to the term "two horizontal directions," i.e., "both horizontal directions," "in at least one horizontal direction," and "in at least one direction," need no further construction as their meanings are also readily apparent, and that defendants' proposed constructions are consistent with their plain and ordinary meanings.[24] Defendants respond that their proposed constructions of these terms is needed to insure consistency and avoid confusion because these phrases are not consistently worded with reference to the term "two horizontal directions" used throughout the claims.[25] Asserting that it "takes no issue with the fact that these terms should be understood to relate back to "two horizontal directions, '"[26] plaintiff argues that these phrases need no construction because their meanings are "readily apparent even to lay judges."[27]

         In determining the plain and ordinary meaning of terms, courts must consider the contexts in which the terms are used. See ACTV. Inc. v. Walt Disney Co., 346 F.3d 1082, 1088 (Fed. Cir. 2003) ("[T]he context of the surrounding words of the claim also must be considered in determining the ordinary and customary meaning of those terms."). When viewed in the context of the surrounding claim language the related terms need no construction because the surrounding language makes it readily apparent that the related terms relate back to the term "two horizontal directions" that the court has already concluded is subject only to is plain and ordinary meaning. Accordingly, the court concludes that the terms related to the term "two horizontal directions," i.e., "both horizontal directions," "in at least one horizontal direction," and "in at least one direction," need no further construction as their meanings are also readily apparent.

         2. "Deliberately Non-Uniform" and Related Terms

         (a) "Deliberately Non-Uniform"

Disputed Term
Patent
Plaintiff s Construction
Defendants' Construction

"deliberately non-uniform"

`248 claims 1-2, 10-11, 14-15

Mot random and nonuniform.

Non-uniform or irregular spacing between seismic receivers and/or seismic source points intended for more accurate reconstruction of the seismic data acquired.

         Asserting that the parties do not dispute the word "non-uniform" is used interchangeably with "irregular" and needs no construction in the '248 Patent, [28] plaintiff argues that "the only dispute about the term "deliberately non-uniform" concerns construction of the word "'deliberately' . . . [but that d]efendants' construction does not actually provide any definite definition for 'deliberately.' "[29] Asserting that the word "deliberately" means "not random," plaintiff argues that

[t]he claims confirm that the sensor placement is "deliberate" and not random by requiring specific spacing between the sensors. See, e.g., [ *248 Patent] at claim 1 ("wherein the spacing between any two seismic receivers in the deliberately non-uniform direction varies by a distance of at least five percent"); claim 2 ("the receivers are spaced in a deliberately non-uniform spacing in both horizontal directions where the largest spacing is at least five percent larger than the smallest spacing in at least one direction")/ claim 10 ("wherein the spacing between any two seismic source points in the deliberately non-uniform direction varies by a distance of at least five percent"); see also similar language in claims 11, 14, and 15.[30]

         Plaintiff also argues that defendants "improperly seek to redraft the single word 'deliberate' into a significantly longer and more confusing phrase."[31]

         Asserting that plaintiff's description of the patent's critical objective and use of that critical objective to distinguish prior art are limiting, defendants argue that their proposed construction of "deliberately" as "intended for more accurate reconstruction of the seismic data acquired," is based on plaintiff's description of the patent's critical objective and is not only consistent with the intrinsic record but is also more closely aligned with how a person of ordinary skill in the art would understand the word "deliberately" than is plaintiff s proposal to construe the word to mean "not random."[32]

         Citing the declaration of defendants' expert, Ozgur Yilmaz, plaintiff replies that defendants do not dispute that the plain and ordinary meaning of "deliberately" is "intentional, and that defendants' reliance on the intended result instead of the plain and ordinary meaning is improper because "claims are not 'limited to features found in what the written description presents as mere embodiments, where the claim language is plainly broader.'"[33]

         In their sur-reply defendants argue that "neither deliberate nor intentional mean 'not random' as the non-uniform or irregular spacing pattern could be deliberately or intentionally random and nothing in the specification or the claims precludes a random spacing pattern."[34] Defendants also argue that neither they nor their expert ever conceded that "intentional" means "not random."[35]

         The court is not persuaded by either the plaintiff's proposed construction of "deliberately" as "not random" or the defendants' proposed construction of "deliberately" as "intended for more accurate reconstruction of the seismic data acquired." The court concludes that the term "deliberately non-uniform" is subject only to its plain and ordinary meaning, i.e., intentionally irregular.

         As detailed above, the parties agree that the plain and ordinary meaning of "non-uniform" is "irregular," and that the plain and ordinary meaning of "deliberately" is "intentional." Neither party has cited any intrinsic or extrinsic evidence showing that "deliberately" or "intentional" should be construed to mean either "not random" as plaintiff contends or "intended for more accurate reconstruction of the seismic data acquired" as defendants contend. Plaintiff bases its argument that "deliberately" means "not random" on a citation from the detailed description of the invention stating that "a random placement of receivers is not desired, "[36] and on citations to the claims that plaintiff argues "confirm that the sensor placement is 'deliberate' and not random by requiring specific spacing between the sensors."[37] But none of the claims contain the word "random," and nothing in either the description of the invention or the claims precludes the arrangement of receivers or sources from being random. The description of the invention merely states that random arrangement is not desired, not that random arrangement is precluded.

         Defendant's argument that "deliberate" should be construed as an expression of the patent's critical objective, i.e., "intended for more accurate reconstruction of the seismic data acquired," fares no better because the caselaw on which defendants rely only stands for the unremarkable principle that the meaning of a claim may be limited by a preferred embodiment or feature where it is described as important to the invention. See Toro, 199 F.3d at 1301-02; Alloc, Inc. v. International Trade Commission, 342 F.3d 1361, 1368, 1370 (Fed. Cir. 2003), cert, denied, 124 S.Ct. 2390 (2004) (limiting the claims by requiring the objective of "play," even though the term is not cited in the claims because "the #907 specification read as a whole leads to the inescapable conclusion that the claimed invention must include play in every embodiment."). Defendants cite no authority for their contention that a disputed term used in less than all of the claims can or should be interpreted as a construct of the invention's critical objective. Accordingly, the court concludes that the term "deliberately non-uniform" is not limited to "not random" as plaintiff argues, or to "intended for more accurate reconstruction of the seismic data acquired," as defendants argue but, instead, needs no construction and is subject only to is plain and ordinary meaning, "intentionally irregular."

         (b) Terms Related to "Deliberately Non-Uniform"

Disputed Term
Patent
Plaintiff s Construction
Defendants' Cons truetion

"the deliberately non-uniform direction"

`248 claims 1, 10, and 14

Plain and ordinary meaning.

At least one of the two horizontal directions in which the spacing between seismic receivers and/or seismic source points is deliberately nonuniform.

"the nonuniform spacing direction"

`248 claims 3-9, 12-13, and 16

"the nonuniform direction"

`248 claims 3-9, 12-13, and 16

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