MEMORANDUM RE APPLICATION FOR THE APPOINTMENT OF APPELLATE COUNSEL
RODRIGUEZ, J.
As to the question of jurisdiction, it is clear that the Superior Court is the appropriate authority to assess the defendant's eligibility for state-appointed counsel, even though this counsel has been requested to assist the defendant with his appeal. Practice Book § 43-33 provides as follows in relevant part: "(a) An indigent defendant who wishes to prosecute his or her appeal may apply to the court from which the appeal is taken for the appointment of counsel to prosecute the defendant's appeal and for a waiver of fees and costs, pursuant to [§]63-7 and [§§]44-1 through 44-5 . . ." (Emphasis added.) Because the defendant intends to appeal a conviction obtained in the Superior Court, it is therefore clear that the Superior Court is the appropriate authority to determine his eligibility for state-appointed counsel.
II. Eligibility for the Appointment of Counsel
With regard to the defendant's eligibility for the appointment of a public defender to handle his appeal, "[i]t is axiomatic that all criminal defendants, including inmates, have a right to counsel throughout the pendency of criminal proceedings against them in the trial court; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); and during the pendency of appeals as of right. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)." Washington v. Meachum, 238 Conn. 692, 731, 680 A.2d 262 (1996). However, this right, which is secured by the sixth and fourteenth amendments to the United States Constitution, only applies when a criminal defendant is subjected to actual imprisonment. See State v. Brooks, 89 Conn.App. 427, 432-34, 874 A.2d 280 (2005).
In State v. Brooks, supra, 89 Conn.App. 432-34, the Appellate Court provided a helpful summary of the development of the United States Supreme Court's recognition of the constitutional right to assistance of CT Page 14864 counsel: "In Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002), the United States Supreme Court reiterated its long and well established doctrine concerning the sixth amendment right to counsel. `In Gideon v. Wainwright, 372 U.S. 335, 344-45 [ 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the court] held that the Sixth Amendment's guarantee of the right to state-appointed counsel, firmly established in federal-court proceedings in Johnson v. Zerbst, 304 U.S. 458 [ 58 S.Ct. 1019, 82 L.Ed. 1461] (1938), applies to state criminal prosecutions through the Fourteenth Amendment. [The court] clarified the scope of that right in Argersinger [ v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)], holding that an indigent defendant must be offered counsel in any misdemeanor case that actually leads to imprisonment . . . Seven Terms later Scott [ v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979)] confirmed Argersinger's delimit[ation] . . . Although the governing statute in Scott authorized a jail sentence of up to one-year . . . [the court] held that the defendant had no right to state-appointed counsel because the sole sentence actually imposed on him was a $50 fine . . . Even were the matter res nova, [the court] stated, the central premise of Argersinger — that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment — is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel in non-felony cases . . .
"`Subsequent decisions have reiterated the Argersinger- Scott actual imprisonment standard . . . It is thus the controlling rule that absent a knowing and intelligent waiver, no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial.' (Citations omitted; emphasis added; internal quotation marks omitted.) Alabama v. Shelton, supra, 535 U.S. at 661-62, 122 S.Ct. 1764. The Shelton court further stated that `the Sixth Amendment inquiry trains on the stage of the proceedings corresponding to [the defendant's] trial, where his guilt was adjudicated, eligibility for imprisonment established, and prison sentence determined.'" State v. Brooks, supra, 89 Conn.App. 432-34. See also J. Cook, Constitutional Rights of the Accused (3d ed. 1996) § 8:2.
In the present case, had the defendant received a prison sentence due to his conviction on the misdemeanor charge, and upon a showing of indigence, he would have been entitled to the appointment of counsel to handle his first appeal, which he is entitled to take as a matter of right. However, because he did not receive a period of actual imprisonment, the constitution does not require that he be appointed counsel.
CT Page 14865 In Connecticut, indigent criminal defendants also are entitled to state-appointed counsel in some circumstances by virtue of statutory provision. General Statutes § 51-296 provides in relevant part: "(a) In any criminal action . . . the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent . . . designate a public defender . . . unless, in a misdemeanor case, at the time of the application for appointment of counsel, the court decides to dispose of the pending charge without subjecting the defendant to a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation, or the court believes that the disposition of the pending case at a later date will not result in a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation and makes a statement to that effect on the record." (Emphasis added.)
In the present case, the limiting language found in § 51-296 would certainly exclude the defendant from the purview of the statute's protection. "Section 51-296(a) clearly establishes three exceptions to the indigent defendant's right to counsel. The court need not appoint counsel in a misdemeanor case, if `the court decides to dispose of the pending charge without subjecting the defendant to a sentence involving immediate incarceration . . .'" This is exactly what transpired in the present case: the defendant was found guilty of a misdemeanor, and was issued a fine in lieu of any term of immediate incarceration. He is not, therefore, entitled to a public defender at this juncture. Accordingly, the application for the appointment of appellate counsel is denied.
CT Page 14866
on when stating that "the global control system can transmit location information to the local control system instead of force information," there is nothing in the claim language or the specification that says that location information can never consist of force information or that the two kinds of information can never overlap. (`967 Patent, col. 6 ll. 45-47.) The single statement within the specification that distinguishes between location and force information does not constitute the type of "disavowal" that would render appropriate a negative limitation. As such, the Court declines to construe this term using the negative limitation suggested by Ion. Instead, the Court adopts WG's proposed construction, and holds that "location information" should be construed as "information regarding location." This construction applies the "widely accepted meaning of commonly understood words."
Phillips,
415 F.3d 1314.
5. "on or in-line with"
This phrase is used in claim 15 of the `607 and `967 Patents. WG seeks to construe this term as "attached externally to or in-line with." Ion seeks to construe the term as "attached to or in-line with."
In construing the word "on" as "attached externally to," WG seeks to distinguish between those devices that are attached externally to streamers from those are in-line with, or part of the linear of, the streamer, as is WG's Q-Marine. WG also argues that the plain meaning of the word "on" implies an external connection, rendering it appropriate to explicitly add the word "external" to the construction of the term. Ion, however, takes issue with this "external vs. in-line with" dichotomy, and argues that there are certain devices that are "hybrid" in that they contain a component that is in-line with the streamer as well as a part that is attached externally. Ion also points out that the term "externally" appears nowhere in either the claim language or the specification. Ion therefore seeks to construe this phrase without this limitation.
The Court notes that WG relies only on external evidence to establish the purported distinction between devices that are on, and those that are in-line with, the seismic streamers. Ion apparently disagrees that this is binary framework is as exact as WG avers. The Court will not rely on only external evidence to construe this term so as to create the binary distinction as WG advocates.
In addition, the Court notes that to the extent that the word "on" implies a connection that is different from "in-line," this difference is made apparent by the fact that the terms are separated with the word "or." Therefore, the Court holds that the phrase "on or in-line" is sufficiently clear that it needs no construction. Any fact-finder can be trusted to understand the plain and ordinary meaning of the word "on" such that the Court need not impose a construction, particularly one that finds no support in the intrinsic evidence. A district court is not obligated to construe terms with ordinary meanings, lest trial courts be inundated with requests to parse the meaning of every word in the asserted claims. O2 Micro Intern. Ltd., 521 F.3d at 1360; see also Biotec Biologische Naturverpackungen GmbH Co. KG v. Biocorp, Inc., 249 F.3d 1341, 1349 (Fed. Cir. 2001) (finding no error in non-construction of "melting"); Mentor H/S, Inc. v. Med. Device Alliance, Inc., 244 F.3d 1365, 1380 (Fed. Cir. 2001) (finding no error in the lower court's refusal to construe "irrigating" and "frictional heat").
6. "feather angle mode"
This phrase is used in claim 7 of the `017 and `607 Patents, claim 8 of the `967 Patent, and claims 1, 2, 18, and 19 of the `520 Patent. WG seeks to construe this term as "a control mode that attempts to set and maintain each streamer in a straight line offset from the towing direction by a certain feather angle." Ion seeks to construe the term as a "mode wherein the global control system attempts to keep each streamer in a straight line offset from the towing direction by a certain feather angle." The primary difference between these proffered constructions is that Ion seeks to construe the term so that it is the global control system that acts to affect the streamer positions when the feather angle mode is triggered.
WG points out that the `017, `607, and `967 Patent claims in which this phrase is used explicitly state that the global control system is the actor in implementing the feather control mode. However, as the phrase is used in the `520 Patent, no mention is made of the global control system. Instead, the claims refer only to a "control system." According to WG, absent a clear an unmistakable disavowal of the claim scope, the construction of the term should not be limited according to how the phrase is used in some but not all of the patent claims. Ion, however, points out that the specification, when describing the control modes of the inventive system as a whole, teaches that the feather angle mode is where "the global control system attempts to keep each streamer in a straight line offset from the towing direction by certain feather angle." (`017 Patent, col. 9 ll. 55-58.)
The Court once again holds that, although Ion's description tracks the language used in the specification to describe how the feather control mode is implemented, it must read the specification in the context of the patents as a whole. Absent a clear and unmistakable disavowal or limitation on the claim scope, the Court will not impose the claim limitation that Ion proposes. While it is clear that the preferred or typical embodiment of the patent will involve the global control system acting to implement the feather control mode, the Court must acknowledge that several of the claims teach a method of implementing the feather control mode wherein the global control system is not mentioned. Innova/Pure Water Inc., 381 F.3d at 1117 (stating that "[p]articular embodiments appearing in the written description will not be used to limit claim language that has a broader effect"). Therefore, because it is consistent with the meaning revealed through the claim language as well as the specification description, the Court will adopt WG's construction of this term and finds that it should be construed as the "a control mode that attempts to set and maintain each streamer in a straight line offset from the towing direction by a certain feather angle."
7. "turn control mode"
This claim is used in claim 7 of the `017 and `607 Patents, claim 8 of the `967 Patent, and claims 1, 6, 18, and 23 of the `520 Patent. WG seeks to construe this term as "a control mode in which the streamer positioning devices first generate force in the opposite direction of the turn and then are directed back into position." Ion seeks to construe this term as "mode wherein streamer positioning device(s) generate a force in the opposition direction of a turn and then directing each streamer positioning device to the position defined in the feather angle mode." The primary difference between these constructions, therefore, is whether "turn control mode" should be construed with reference to the feather angle mode.
Claims 6 and 9 of the `520 Patent describe the two stages of the turn control mode. Claim 9 of the Patent, which is dependent on claim 6, addresses what happens after the streamers are directed to generate force opposite the turn: "commanding each streamer positioning device to go to a position defined by the feather angle control mode." (`520 Patent, Pl. Br. Ex. 4, Doc. No. 61, col. 11 ll. 40-44.) The construction proposed by Ion, therefore, directly mirrors the language used in the claims themselves to describe the turn control mode. WG once again argues that, because it is only the term that is being construed, and not the entire invention, it is unnecessary to describe how the mode is implemented within the construction of this term. However, WG's proposed construction is also a description of how the turn control mode is implemented, only with the reference to the feather angle mode eliminated. Therefore, WG should not try to controvert Ion's construction on the grounds that it attempts to describe the implementation of the turn control mode, as it appears to agree that some description of the implementation is an appropriate way to construe the term.
Turning then to the specific language chosen by each party to describe the implementation, Ion's construction provides a more complete description because it actually mirrors the language used within the patent-in-suit claims, which clearly refer to the feather angle mode to describe the second stage of the turn control mode. Accordingly the Court adopts Ion's construction of this term and holds that it should be construed as "mode wherein streamer positioning device(s) generate a force in the opposition direction of a turn and then directing each streamer positioning device to the position defined in the feather angle mode."
8. "streamer separation mode"
This phrase is used in claim 8 of the `017 and `607 Patents, claim 9 of the `967 Patent, and claims 1, 13, 18, and 30 of the `520 Patent. WG seeks to construe this term as "a control mode that attempts to set and maintain the spacing between adjacent streamers." Ion seeks to construe this term as a "mode wherein the global control system attempts to maximize the distance between adjacent streamers." The primary dispute between the parties, therefore, is whether this control mode should be construed so as to require that the global control system act to maximize the distance between streamers.
Ion once again points out that its construction of the term tracks the language used in the patent specification, or the description of the "inventive system." Once again, however, the Court declines to use the specification language to limit the scope of this term. As to the necessity of the global control system, as stated above, the Court must recognize that certain claims within the `520 Patent describe the implementation of the streamer separation mode with no reference to a global control system. Therefore, although the specification makes clear that use of the global control system to implement this mode is a preferred embodiment of the invention, the Court declines to construe this term such that it requires a global control system. Innova/Pure Water Inc., 381 F.3d at 1117 (stating that "[p]articular embodiments appearing in the written description will not be used to limit claim language that has a broader effect").
Furthermore, as WG points out, claim 8 of the `017 Patent describes the streamer separation mode as one where the global control system attempts to direct the streamer positioning device "to maintain a minimum separation between adjacent streamers." (`017 Patent, col. 11 ll. 12-16.) Construing the streamer separation mode as an attempt to maximize the distance between the streamers would, therefore, directly conflict with this claim language, which calls for only a minimum separation distance between adjacent streamers. In addition, claim 14 of the `520 Patent, which is dependent on claim 13, specifically cites a limitation wherein the control system is "attempting to maximize the distance between adjacent streamers." (`520 Patent, col. 11 ll. 57-59.) Because this is a dependent claim, it is presumably narrower than the preceding independent claim, which describes the streamer separation mode as one where "the control system is attempting to minimize the risk of entanglement of the streamers." (`520 Patent, col. 11 ll. 54-56.) Accordingly, the Court declines to construe this term as requiring either a global control system or distance maximization. Instead, the Court will adopt WG's construction, and holds that streamer separation mode should be construed as "a control mode that attempts to set and maintain the spacing between adjacent streamers."
9. "means for obtaining a predicted position of the streamer positioning devices"
This phrase is used in claim 16 of the `017 Patent. WG seeks to construe this term as "a global control system or position predictor software, and equivalents thereof." Ion proposes the same construction, except that it replaces the word "or" after "system" with "and".
The parties agree that this particular phrase is a "means-plus-function claim that is governed by 35 U.S.C. § 112, ¶ 6. The question therefore turns on what devices are necessary to perform the function disclosed in the claim term. WG argues that Ion again attempts to improperly limit the scope of a claim to the preferred embodiment disclosed in the specification, and that the global control system is not a necessary structure to perform the stated function. Ion correctly points out that the only structures which are disclosed in the `017 Patent that can perform the stated function are the global control system and the position predictor software. As described in the specification "the global control system runs position predictor software to estimate the actual location of each of the birds." (`017 Patent, col. 4 ll. 31-32.) Ion is correct, therefore, that position predictor software is an indisputably necessary structure to perform the disclosed function. Moreover, some device is necessary actually to execute or run this software. The only device disclosed in the specification that can execute the position predictor software is the global control system.
At the Markman hearing, counsel for WG represented that it would agree to construing the term as "control system and position predictor software," to allow for the fact that a global control system is not is not disclosed in every claim. However, although WG is correct that certain claims within the patent-in-suit refer only to a control system rather than a global control system, the fact remains that the only disclosed structure capable of running the position predictor software is the global control system. The specification reveals no other structure, or any other type of control system, that might be capable of performing this disclosed function. Accordingly, the Court must conclude that, under Section 112, ¶ 6, this term should be construed to include the global control system. It therefore adopts Ion's proposed construction of this term, and construes it as "global control system and predictor software; and equivalents thereof." The Court also notes that, to the extent that there may be an embodiment of the invention in which there is no global control system, but some other control system, such a system might fall within the "equivalents thereof" portion of the construction, thereby addressing WG's concerns. See Welker Bearing, 550 F.3d at 1099 (holding that means plus function claims are interpreted with reference to, and as limited by, the related structure disclosed in the patent for performing the function recited in the claim, or the equivalents thereof).
10. "means for obtaining an estimated velocity of the streamer positioning devices"
This phrase is used in claim 16 of the `017 Patent. As with the previous term, the parties agree that this term should be construed according to Section 112, ¶ 6, or as a means-plus-function claim. WG seeks to construe this term as "a global control system, flowmeters, or water velocity sensors, and equivalents thereof." Ion seeks to construe this term as "flowmeters; water velocity sensors; and equivalents thereof." Thus, the parties do not dispute that "water velocity sensors" and "flowmeters" are corresponding structures. However, they disagree as to whether the global control system is disclosed as a structure that can independently perform the stated function.
The Court agrees with Ion that the specification does not reveal that the global control system can independently perform the stated function, that is, the obtaining/determining of the estimated velocity of the streamer positioning devices. The specification reveals that "[c]urrent speed and heading can also be estimated based on the average forces acting on the streamers by the birds," but does not reveal what structure is performing these estimates. (`017 Patent, col. 4 ll. 42-44.) Indeed, the specification refers to the global control system only as acquiring certain parameters from the vessel's navigation system, and sending certain information to the local bird controller. (`017 Patent, col. 4 ll. 37-48). As Ion argued at the Markman hearing, nowhere is it stated that it is the global control system that calculates or estimates the velocity of the streamer positioning devices. Thus, it is not at all apparent to this Court that the global control system is among the structures necessary to perform the stated function, and will therefore not construe this claim so as to include it. Although the global control system may play a part in processing the information in question, it is not disclosed as structure used to perform the function contained within this phrase. Accordingly, the Court adopts Ion's construction and hold that this phrase will be construed as "flowmeters; water velocity sensors; and equivalents thereof."
11. "means for calculating desired changes in the orientations of the respective wings of at least some of the streamer positioning devices using said predicted position and said estimated velocity"
This claim is used in claim 16 of the `017 Patent. Both parties agree that this term is a means-plus-function claim that should be interpreted according to Section 112, ¶ 6. WG seeks to construe this term as "a global control system, a local control system, a look-up table or a conversion routine, and equivalents." Ion seeks to construe the term as "global control system, local control system and localized displacement/force conversion program; and equivalents thereof." Therefore, the only dispute between the parties is whether the look-up table and conversion routine and the localized displacement/force conversion program are disclosed in the patent.
WG argues that, because the look-up table and conversion routine are clearly disclosed in the patent, they should be made part of the construction. Ion argues that the look-up table and conversion routine may be used by the localized displacement/force conversion program to achieve the desired function, but that this term is not a disclosed structure that can independently perform the stated function.
The Court first notes that the localized displacement/force conversion program is, under the claim terms, a device used by the local control system to achieve the stated function. (`017 Patent, col. 6 ll. 3-6.) In other words, both the localized displacement/force conversion program and look-up table or a conversion routine are not independent structures that perform the stated function, but, instead, are structures which are implemented by another structure, the local control system. Under Ion's theory, therefore, because it is being used by the local control system, the localized displacement/force conversion program also should not be included within the list of disclosed structures used to achieve the stated function.
The Court finds that this would be too limited an interpretation of the mean-plus-function analysis. The Court is tasked with construing means-plus-function claims according to any structure revealed in the specification that corresponds or relates to the recited function. Welker Bearing, 550 F.3d at 1097; Minks v. Polaris Indus., Inc., 546 F.3d 1364, 1377 (Fed. Cir. 2008). Because both the localized displacement/force conversion program and a look-up table or a conversion routine are structures disclosed within the specification which correspond to the desired function, the Court will include both in its construction. That these structures are used in conjunction with other disclosed structures does not mean that they should be excluded from the list. As such, the Court construes this term as "global control system; local control system and localized displacement/force conversion program using a look-up table or a conversion routine; and equivalents thereof."
12. "means for actuating the wing motors to produce said desired changes in wing orientation"
This phrase is used in claim 16 of the `017 Patent. At the Markman hearing, WG represented that it agreed with Ion's proposed construction of this claim term. Accordingly, the Court will adopt the agreed construction of "motor driver; and equivalents thereof."
B. ZAJAC PATENT
1. "active streamer positioning device"
This term is used throughout the Zajac Patent. WG seeks to construe this term as "a device for controlling the horizontal and/or vertical position of a seismic streamer." Ion seeks to construe this term as "device used to control the vertical and horizontal positioning of a streamer."
The Court first notes that the Zajac Patent, as compared to the Bittleston Patents, makes more explicit the requirement that each active streamer positioning device ("ASPD") should be capable of horizontal and vertical positioning of the streamers. Claim 1 of the `038 Patent states that "the master controller" issues positioning commands to each ASPD to adjust a horizontal and vertical position of a first streamer relative to a second streamer. (`038 Patent, Pl. Br. Ex. 5, col. 11 ll. 23-26.) As Ion points out, because the controller issues horizontal and vertical positioning commands, such commands would be futile unless each ASPD was capable of receiving both horizontal and vertical positioning signals. Claim 19 of this Patent goes on to describe a seismic streamer array positioning system wherein an APSD "is attached to each seismic streamer for vertically and horizontally positioning each seismic streamer." (`038 Patent, col. 12 ll. 63-65.) Thus, this claim also indicates that an APSD is attached to a streamer for both vertically and horizontally positioning the streamer. In addition, the specification uses "present invention" language and states that "one or more ASPD is employed on each seismic array" (`038 Patent, col. 3 ll. 1-6.) As Ion argues, because the invention only requires that at least one positioning device be located on each streamer, this device would, in order to effectuate the patented technology, necessarily have to control both vertical and horizontal steering. Therefore, unlike with the Bittleston Patents, the Court can conclude that the APSD described in the Zajac Patent must be capable of both vertical and horizontal positioning.
Nonetheless, that each ASPD must be capable of both types of steering need not be equated with use of each of the devices for vertical and horizontal positioning. Indeed, Ion appears to admit this when it states that "Ion does not dispute that an ASPD can be operated in only a horizontal positioning mode." (Def. Resp. Br., Doc. No 73, at 15.) The Court's construction of the disputed term must, therefore, reflect this distinction between capability and use, because neither the patent claims nor the specification disavow the possibility that the ASPDs might be used for either vertical or horizontal positioning, although they are capable of both. As WG argued during the hearing, the summary of the invention says only that the streamer must be controlled both vertically and horizontally, but not that every single APSD must perform both functions. While WG's construction reflects that the ASPD may be used for either vertical or horizontal positioning, however, the construction that it offers does not make clear that the ASPD must be capable of both types of the positioning. As such, this Court will not adopt the construction offered by either party, and instead construes this claim term as "a device capable of controlling the vertical and horizontal position of the seismic streamer."
2. "the master controller"
This phrase is used in claim 29 of the `038 Patent. WG seeks to construe this term as "a master controller." Ion argues that this claim is indefinite under 35 U.S.C. § 112, ¶ 2 because the preceding independent claim, claim 26, contains no description of a controller, whether master or otherwise. Therefore, argues Ion, it is not clear to what "the master controller" refers, thereby making the scope of the claim unclear. WG argues that this is simply a broad claim, but that its breadth does not make it inherently unclear.
This Court agrees that, in using the term "the," this claim term is somewhat ambiguous because there is no antecedent claim to which "master controller" clearly refers. However, because the term "master controller" is not unclear, and has indeed been construed by the parties as "a controller that sends commands to other devices in a system," the Court finds that the logical solution to this ambiguity is to simply construe the term as "a master controller," rather than to strike the claim entirely. While the Court fully appreciates Ion's position, the Court is not prepared to strike the entire claim from this patent because of a misused article. As such, the Court will construe "the master controller" as "a master controller."
3. "positioning commands"
This term is used throughout the Zajac Patent. At the Markman hearing, the parties indicated that they could agree on construing this term as "signals or instructions to control positioning." The Court will accordingly adopt this construction.
4. "maintaining a specified array geometry"
This term is used in claims 1, 14, 26, and 39 of the Zajac Patent. At the hearing, the parties agreed to construe this term as "maintaining a specified array shape." The Court will accordingly adopt this construction.
5. "environmental factors/influences/measurements"
This term is used throughout the Zajac Patent. At the hearing, the parties agreed to construe this term as "environmental factors or influences such as wind speed and direction; tidal currents velocity and direction; ocean bottom depth/angle; local current velocity and direction; wave height and direction; ocean bottom depth/angle; and water temperature and salinity." The Court will accordingly adopt this construction.
6. "maneuverability influences"; "maneuverability factor(s)"
This terms is used throughout the Zajac Patent. At the hearing, the parties agreed to construe this term as "conditions that affect maneuverability other than environmental conditions such as cable diameter, array type, deployment configuration, vessel type, device type, etc." The Court will accordingly adopt this construction.
C. THE `992 PATENT
1. "a body . . . mountable to the underwater cable"
This phrase is used in claim 1 of the `992 Patent. WG argues that it should be construed as "a device attached externally to an underwater cable." Ion argues that the phrase should be construed as "a body attachable . . . to the underwater cable."
In a predictable role reversal, Ion now argues that WG's construction attempts to improperly limit the scope of the claim term to a disclosed embodiment in the specification. Ion points out that, unlike with the specification of the Bittleston and Zajac Patents, that the Ion Patent does not contain any "present invention" language that would suggest that it should be so limited. Ion further argues that the testimony of Peter Canter, WG's expert, describing the difference between in-line and external devices is conclusory and should be ignored. WG points out that Ion's invention is essentially a "clamping
device," which should be distinguished from the in-line devices that are embodied in WG's patent and its "Q-Marine" product. ( See Peter Canter Expert Report, WG Br. Ex. D, ¶ 55 (noting the distinction between in-line and externally attached devices).) In order to establish this distinction, WG seeks to add the word "externally" to the claim construction.
The patent claim language does not immediately reveal how the term "mountable" should be construed. However, considering the plain and ordinary meaning of the claim term, the Court agrees with WG that the word "mountable" generally connotes an external connection of some kind, rather than on in which the connection allows the attachment to become part of the base structure. Moreover, WG's construction is consistent with the single embodiment of the invention revealed in the specification, which describes an "external device" mounted to an underwater cable. (`992 Patent, Pl. Br. Ex. 6, Doc. No. 161, col. 2 ll. 66-67, col. 3 ll. 16-18.) Figure 32 of the `992 Patent likewise portrays a diagram of the streamer with an attachment that is labeled "external device." (`992 Patent at WG00029644.) Although Ion is correct that the specification does not contain the kind of "present invention" language that courts have held signal a limitation to the patent scope, the Court must acknowledge that this is the single embodiment disclosed in the specification and is consistent with the natural meaning of the claim language, as something that is "mounted" is supported by something else while remaining an entirely separate object. Finally, as WG pointed out during the Markman hearing, an examination of the prosecution history of this patent reveals that the original application for the `992 Patent specifically described an invention "having one or more external devices mounted on the cable." (`992 File History, at ION617.) Nothing in the later amendments to the application appear to have altered this initial characterization of the claimed invention.
Moreover, to construe this claim term such that the body is attached externally does not undermine the possibility of an internal component to the invention. That a body is externally mountable says nothing as to whether there might be non-external component with which the mounted body interacts for inductive coupling, as Ion's invention apparently includes. In so recognizing, the Court will not adopt WG's language which attempts to equate the term "body" with the entire device, as the portion of the invention that remains under the skin of the streamer could certainly be said to be part of the device, though perhaps not part of the body.
In the Court's opinion, the term "mountable" sufficiently conveys the notion that the body of the device is externally connected to the steamer such that it needs no construction. However, both parties appear to seek construction of the phrase. Of the two proposed constructions, the Court is of the opinion that WG's more accurately reflects the Court's understanding of the term "mountable" as it is used in this claim term. Ion's use of the word "attachable" appears to broaden the scope of the claim language, because to say that an object can be "mounted" implies something slightly more specific that to say that it can be "attached." Neither the claim language nor the specification reveal any possible embodiment of the claimed invention in which the body in question is attached, but not mounted, to the seismic streamer. The Court therefore adopts WG's construction and construes this term as "a body attached externally to the underwater cable."
2. "a body connectable to the underwater cable"
This phrase is used in claim 13 of the `992 Patent. WG seeks to construe this term as "a device attached externally to the underwater cable." In support of this construction, WG offers largely the same argument as was made with respect to the previous claim term. Ion asserts that this phrase needs no construction. Ion argues that this claim need no construction.
The Court notes that the term "connectable" contains a different connotation from the word "mountable." Whereas, with the previous phrase, the plain and ordinary meaning of the claim terms connoted an external connection of some kind, the term "connectable" does not invoke the same relationship between two objects. At first glance, therefore, the Court must be suspect of WG's proposal, which seeks to construe this phrase and the previous phrase in an identical manner. As Ion correctly points out, such a construction would be contrary to presumption of claim differentiation, which counsels that identical construction of two claim terms that use different words is inappropriate. Seachange Int'l, Inc. v. C-COR, Inc., 413 F.3d 1361, 1368 (Fed. Cir. 2005) ("[D]ifferent words or phrases used in separate claims are presumed to indicate that the claim have different meanings and scope.")
Nonetheless, the Court is faced with a situation in which an externally connected body is the only device that is disclosed and described in the specification. Moreover, unlike several of the claims within the Bittleson and Zajac Patents, the claim terms here do not offer any reason to believe that the scope of this phrase should be construed more broadly then what the specification describes. In other words, "[n]o other structure is illustrated or described" and "[n]o other broader concept [is] described as embodying the applicant's invention." Toro, 199 F.3d at 1301. The `992 Patent appears to teach only a device wherein the body is attached externally to the underwater cable. Moreover, that the `992 Patent also teaches inductive coupling as part of the inventive system would also suggest that a body attached externally to the streamers which receives power though inductive coupling is a critical element of the patented device. The intrinsic evidence in the `992 Patent, therefore, offers no other interpretation for the term "connectable" other than the external connection for which WG advocates.
The Court declines, however, to adopt WG's construction wholesale, as it once again equates the term "body" with "device," which, in light of WG's own admission that a portion of Ion's invention that effectuates inductive coupling is located underneath the skin of the streamer, is improper. Accordingly, the Court will construe this term as "a body attached externally to the underwater cable." Although the Court recognizes that this construction is identical to that of the previous phrase, such identical constructions are proper in this case in light of the specification and the patent claims. See Nystrom v. TREX Co., 424 F.3d 1136, 1143 (Fed. Cir. 2005) (holding that "[d]ifferent terms or phrases in separate claims may be construed to cover the same subject matter where the written description . . . indicate[s] that such a reading of the terms or phrases is proper").
3. "wherein the wings are coupled to the first and second actuators"
This phrase is used in claim 1 of the `992 Patent. WG seeks to construe this term as "wherein each actuator is linked to both wings." Ion seeks to construe this term as "wherein the wings are connected to the first and second actuators." WG argues that its construction is appropriate because the specification only discloses having one roll actuator and one pitch actuator, each linked to both wings. WG also points out that Ion relied on the actuator to distinguish prior art. Ion argues that WG is improperly importing
a limitation from the disclosed preferred embodiments into the claim language. More precisely, Ion argues that the specification does not require that each actuator has an individually dedicated function such that it must be linked to both wings.
This Court agrees with Ion. Although WG may be correct that the preferred embodiment of this invention requires each wing to be coupled to the first and second actuators, one of which controls roll and one which controls pitch, the Court cannot hold that the scope of claim should be limited according to this embodiment. The language cited by WG from the specification is consistent with the notion that it is the preferred embodiment of Ion's Patent that one actuator is the roll actuator and the other is a pitch actuator. ( See Pl. Resp. Br., Doc. No. 71, at 12.) However, nothing in the claim language or in the specification constitutes a disavowal of the possibility that each actuator may control both roll and pitch and be linked to a separate wing. Indeed, the only claim that specifically teaches one actuator controlling the roll or the pitch of both wings is claim 4. Because, however, this claim is a dependent claim, independent claim 1 and dependent claims 2 and 3 need not be read as having an identical scope as this claim. Therefore, the claim language allows for a broader interpretation than the embodiment that is disclosed in the specification. Innova/Pure Water Inc., 381 F.3d at 1117 (stating that "[p]articular embodiments appearing in the written description will not be used to limit claim language that has a broader effect"). In addition, nothing in the specification indicates that having each actuator dedicated to a separate function is a necessary or critical element of the invention's functionality. See Andersen, 474 F.3d at 1367.
Therefore, the Court will construe this phrase according to its apparent plain and ordinary meaning to a person of ordinary skill in the art, as made apparent through the parties' arguments. Both WG and Ion offer extrinsic evidence to suggest that the term "coupled," as it is used here, can be defined as "linked." Accordingly, the Court will construe this term as "wherein the wings are linked to the first and second actuators."
4. "a pair of actuators that . . . co-act with the wings"
This phrase is used in claim 13 of the `992 Patent. WG seeks to construe this phrase as "two actuators that act together on each wing." Ion seeks to construe this term as "a pair of actuators that interact with the wings."
WG once again points out that the specification discloses one roll actuator and one pitch actuator, each of which are linked to both wings. Ion argues that its construction finds support in the prosecution history of this patent, which describes first and second actuators that "interact" with the wings to control the depth and lateral position of the underwater cable. Ion also points out that it is not necessary for both actuators to act on each wing. This Court once again agrees with Ion that it is not necessary to construe this term such that both actuators act on each wing by definition. While this is clearly the preferred embodiments of the invention, as explained above, there is no disavowal of the possibility left open by the claim terms that the each actuator may be assigned to a different wing. Moreover, although WG argues that its construction is more consistent with the plain and ordinary meaning of the term because "co-act with the wings" clearly means that the actuators are acting together on the wings, the Court does not find that this interpretation to be so obvious. The language of the claims does not make clear that the "co-actors" are the two actuators, rather than a single actuator co-acting with a single wing. Accordingly, absent a disavowal of claim scope, the Court will not construe this term as WG argues in order to limit its scope. Therefore, the Court
rejects WG's construction to the extent that it suggests that both actuators must act on each wing.
Furthermore, the Court notes that the context in which this claim term is used refers to the actuators co-acting with the wings "to adjust angular positions of the wings to control the depth and lateral position of the underwater cable in the water." (`992 Patent, col. 30 ll. 41-44.) Accordingly, Ion's construction, which finds some support in the prosecution history, seems to offer the most logical construction of the term "co-act" as it is used in the context of the claim language. What is being described in the claim is clearly a device in which the actuators are interacting with the wings in order to adjust their angle, thereby influencing the position of the streamer. WG's use of the verb "act together," by contrast, does not offer a clear construction of the claim language, as it not clear which mechanisms are acting together with what. Accordingly, because it most accurately reflects what is being described with the use of this claim term, the Court adopts Ion's construction, and construes this phrase as "a pair of actuators that interact with the wings."
5. "the envelope defined by the underwater cable"
This phrase is used in claim 7 of the `992 Patent. WG argues that this phrase is indefinite and should be struck. Ion argues that the phrase needs no construction and clearly refers to the physical boundary of the underwater cable. Ion maintains that its position is supported by intrinsic evidence within the claim term such as language regarding the reduction of drag and noise.
The Court recognizes that indefiniteness is a high standard, and that, in determining whether a claim is indefinite, all presumptions must be rendered in favor of the patentee. Bancorp Services LLC v Hartford Life Ins. Co., 359 F.3d 1367, 1371 (Fed. Cir. 2004). However, this Court is unable to assign any meaning or construction to this particular phrase as it is used in the claim in question. While Ion may be correct that this phrase was intended to refer to the physical boundary of the underwater cable, nothing in the claim language, the specification, or the prosecution history makes this meaning clear or even readily apparently. Moreover, even taking into account the many ways in which the term "envelope" may ordinarily be understood, the Court is unable to point to any extrinsic evidence that would make the meaning of this term more clear. The Court therefore agrees with WG's expert that the meaning of this phrase cannot be determined with any degree of specificity or definiteness. Accordingly, the Court will, under 35 U.S.C. § 112, ¶ 2, strike the particular clause of claim 7 that contains this phrase, or "wherein the axes of rotation of the wings extends towards the envelope defined by the underwater cable."
D. AGREED CONSTRUCTIONS
The parties submitted agreed constructions for certain additional phrases from the patents-in-suit as follows:
1. "at least some"
This phrase will be construed as "more than one."
2. "master controller"
This phrase will be construed as "a controller that sends commands to other devices in a system."
3. "stationarily [mountable/connectable]"
This term will be construed as "[mounted/connected] in a fixed position."
IV. CONCLUSION
In accordance with the analysis set forth in this Memorandum, the Court hereby construes the phrases from the patents-in-suit as follows:
CLAIM TERM COURT'S CONSTRUCTION "streamer positioning device(s)"; "the a device that controls the position of a positioning device" streamer as it is towed (e.g., a "bird") a control system that sends commands to "global control system" other devices in a system (e.g., local control systems) "local control system" a control system located on or near the streamer positioning devices (e.g., birds) "location information" information regarding location "on or inline with" No construction is necessary. a control mode that attempts to set and maintain each streamer in a straight line "feather angle mode" offset from the towing direction by a certain feather angle mode wherein streamer positioning device(s) generate a force in the opposite "turn control mode" direction of a turn and then directing each streamer positioning device to the position defined in the feather angle mode a control mode that attempts to set and "streamer separation mode" maintain the spacing between adjacent streamers "means for obtaining a predicted position global control system and predictor of the streamer positioning devices" software; and equivalents thereof "means for obtaining an estimated velocity flowmeters; water velocity sensors; and of the streamer positioning devices" equivalents thereof "means for calculating desired changes in global control system; local control system the orientations of the respective wings of and localized displacement/force at least some of the streamer positioning conversion program using a look-up table devices using said predicted position and or a conversion routine; and equivalents said estimated velocity" thereof "means for actuating the wing motors to produce said desired changes in wing motor driver; and equivalents thereof orientation" "at least some" more than one a device capable of controlling the vertical "active streamer positioning device and horizontal position of the seismic (ASPD)" streamer "master controller" a controller that sends commands to other devices in a system "the master controller" a master controller "positioning commands" signals or instructions to control positioning "maintaining a specified array geometry" maintaining a specified array shape "a streamer behavior prediction processor a processor that predicts the position of which predicts array behavior" streamers in an array environmental factors or influences such as wind speed and direction; tidal currents "environmental factors"; "environmental velocity and direction; ocean bottom influences"; "environmental depth/angle; local current velocity and measurements" direction; wave height and direction; ocean bottom depth/angle; and water temperature and salinity conditions that affect maneuverability other "maneuverability influences"; than environmental conditions such as "maneuverability factor(s)" cable diameter, array type, deployment configuration, vessel type, device type, etc "a body . . . mountable to the underwater a body attached externally to the cable" underwater cable "a body connectable to the underwater a body attached externally to the cable" underwater cable "wherein the wings are coupled to the first wherein the wings are linked to the first and second actuators" and second actuators "a pair of actuators that . . . co-act with the a pair of actuators that interact with the wings" wings "the envelope defined by the underwater This clause of the claim is struck as cable" indefinite under 35 U.S.C. § 112, ¶ 2. "stationarily [mountable/connectable]" [mounted/connected] in a fixed position IT IS SO ORDERED.