TRANSOCEAN OFFSHORE DEEPWATER DRILLING INC. v. Stena Drilling Limited et al
Filing
115
MEMORANDUM AND ORDER entered: The parties may file reactions, no longer than ten pages each side, addressing the tentative rulings, due no later than Friday, November 14, 2014.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TRANSOCEAN OFFSHORE
DEEPWATER DRILLING, INC.,
Plaintiff,
V
STENA DRILLING LIMITED,
et al.,
Defendants.
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CIVIL ACTION NO. H-08-3287
MEMORANDUM AND ORDER CONSTRUING DISPUTED CLAIMS
Transocean Offshore Deepwater Drilling, Inc. sued Stena Drilling Limited, Stena
Drillmax Limited, and Stena Drillmax III Limited (together, “Stena”), alleging that Stena
infringed three Transocean patents relating to multi-activity offshore exploration and drilling
rigs: U.S. Patent No. 6,085,851 (the ‘851 Patent); U.S. Patent No. 6,047,781 (the ‘781 Patent);
and U.S. Patent No. 6,068,069 (the ‘069 Patent). (Docket Entry No. 22). The ‘851 Patent is the
parent patent. The ‘781 Patent is a continuation of the ‘851 Patent, and the ‘069 Patent is a
continuation of the ‘781 Patent. (See Docket Entry No. 74 at 5 n.5). The patents all relate to
offshore oil exploration and drilling. Transocean seeks damages for, and an injunction against,
Stena’s alleged infringement and inducement of infringement.
The parties dispute how to construe terms in claims 10–12 of the ‘851 Patent; claims 10–
13 and 30 of the ‘781 Patent; and claims 17–19 of the ‘069 Patent. The parties submitted
tutorials, briefs, and exhibits.1 The court held a hearing under Markman v. Westview Instruments,
1
Transocean filed a claim-construction brief, (Docket Entry No. 66), Stena responded, (Docket Entry No. 74),
Transocean replied, (Docket Entry No. 78), and Stena surreplied, (Docket Entry No. 81). Before the Markman
1
Inc., 517 U.S. 370 (1996),2 at which counsel presented arguments supporting their competing
claim constructions.
Based on the briefs, the record, the arguments of counsel, and the applicable law, this
court construes the disputed terms as set out in the following table:
Disputed Term
“a derrick”
(‘781 Patent, claim 10)
Court’s Construction
“a single structure mounted upon a drilling
deck that supports the load of drilling
operations”
“a drilling superstructure”
(‘851 Patent, claims 10, 12; ‘781 Patent, claim
30; ‘069 Patent, claims 17, 19)
“tubular advancing station connected to
said drilling superstructure for advancing “an assembly of equipment capable of
advancing tubular members to the seabed”
tubular members”
(‘069 Patent, claim 17)
A means-plus-function governed by § 112
¶ 6.
Function: transferring tubular assemblies
“means . . . for transferring tubular
directly between advancing stations or
assemblies”
(‘851 Patent, claim 10; ‘781 Patent, claims 10, indirectly through a setback envelope.
30)
Structure:
supported
structure.
overhead derrick cranes, rail
pipe handlers, or equivalent
hearing, the parties submitted a revised joint claim-construction chart. (Docket Entry No. 82). The parties also
submitted tutorials. (Docket Entry Nos. 26 (Transocean), 27 (Stena)).
2
The minute entry for the Markman hearing is at Docket Entry No. 87, and the transcript is at Docket Entry No. 91.
2
A means-plus-function governed by § 112
¶ 6.
Function: transferring tubular assemblies
“assembly . . . operable to transfer tubular
directly between advancing stations or
assemblies”)
indirectly through a setback envelope.
(‘069 Patent, claim 17)
Structure:
overhead derrick cranes, rail
supported pipe handlers, or equivalent
structure.
A means-plus-function governed by § 112
¶ 6.
“tubular handling system for transferring
tubular assemblies between said first
Function: transferring tubular assemblies
tubular setback envelope and said second
tubular setback envelope and said first top directly between advancing stations or
drive station and said second top drive indirectly through a setback envelope.
station”
(‘781 Patent, claim 13)
Structure:
overhead derrick cranes, rail
supported pipe handlers, or equivalent
structure.
a “well”
(‘851 Patent, claim 10; ‘781 Patent, claims 10,
30; ‘069 Patent, claim 17)
“one or more wells”
“the well”
(‘851 Patent, claim 10; ‘781 Patent, claims 10,
30; ‘069 Patent, claim 17)
“drilling operations”
(‘851 Patent, claim 10; ‘781 Patent, claims
10–11, 30; ‘069 Patent, claim 17)
“operations required to construct a well”
“drilling activity”
(‘851 Patent, claim 10; ‘781 Patent, claims 10,
30; ‘069 Patent, claim 17)
3
“auxiliary drilling activity”
(‘851 Patent, claim 10; ‘781 Patent, claim 30;
‘069 Patent, claim 17)
“drilling operations auxiliary to said
drilling operations”
(‘851 Patent, claim 10; ‘781 Patent, claims 30,
30; ‘069 Patent, claim 17)
“operations removed from the critical path for
drilling a well”
“operations
auxiliary
to
drilling
operations”
(‘851 Patent, claim 10; ‘781 Patent, claims 10,
30; ‘069 Patent, claim 17)
“operations . . . auxiliary to said drilling
operations”
(‘781 Patent, claims 10–11)
The court’s construction of “tubular advancing station connected to said drilling
superstructure for advancing tubular members,” “assembly . . . operable to transfer tubular
assemblies,” and “tubular handling system for transferring tubular assemblies between said first
tubular setback envelope and said second tubular setback envelope and said first top drive station
and said second top drive station” are tentative. The parties may file reactions, no longer than
ten pages, addressing the tentative rulings, due no later than Friday, November 14, 2014.
The reasons for these claim-construction rulings are explained in detail below.
4
TABLE OF CONTENTS
I. Background _______________________________________________________________6
A. Summary of the Technology ________________________________________________6
II.
The Legal Standards for Constructing Claims ___________________________________9
III.
Analysis _______________________________________________________________14
A. “Derrick” and “Drilling Superstructure” ______________________________________14
1.
Whether “Derrick” is Limited to a “Single Tower
Structure” ____________________________________________________________15
2.
Whether “Derrick” is “Mounted on a Drilling Deck” __________________________16
3.
Whether a derrick supports “the load of drilling
operations” or the “weight of the tubular strings used in
drilling” _____________________________________________________________21
B. “Tubular advancing station connected to said drilling
superstructure for advancing tubular members.” ________________________________23
1.
The Applicable Law ____________________________________________________23
2.
Whether “tubular advancing station connected to said
drilling superstructure for advancing tubular members” is
in means-plus-function form _____________________________________________31
C. “Means . . . for transferring tubular assemblies.” ________________________________39
1.
Whether the Claim Covers Indirect Transfers ________________________________40
2.
Whether the Claims Provide for Transfers Below the Drill
Floor ________________________________________________________________44
D. Additional Tubular Transferring Terms: “assembly . . .
operable to transfer tubular assemblies” and a “tubular
handling system for transferring tubular assemblies between
said first tubular setback envelope and said second tubular
setback envelope and said first top drive station and said
second top drive station.” __________________________________________________51
1.
“assembly . . . operable to transfer tubular assemblies.” ________________________52
2.
“Tubular handling system for transferring tubular
assemblies between said first tubular setback envelope
and said second tubular setback envelope and said first
top drive station and said second top drive station.” ___________________________55
E. “A Well” and “the Well” __________________________________________________57
F. “Drilling Operations” and “Drilling Operations Auxiliary to
Said Drilling Operations” __________________________________________________62
1.
The Applicable Law on Indefiniteness______________________________________63
2.
Whether the Disputed Claims are Indefinite _________________________________65
5
IV.
Conclusion _____________________________________________________________72
I.
Background
A.
Summary of the Technology
Conventional deep-sea drilling requires a hole—known as a “wellbore”—in the seabed.
Constructing the wellbore requires the driller to alternate between drilling the hole and lining it
with pipe. (Docket Entry No. 26 at 1–2). The bit used to drill the hole is suspended on a “drill
string.” The drill string is made up of sections or “joints” of drill pipe, which the parties call
“tubular members,” “tubular assemblies, or “tubular strings.”
The tubular members are
connected to each other on the drilling rig. Usually, a hoist apparatus called a “drawworks”3 is
attached to the drill string to raise and lower it using a “traveling block.” As the hoisting
equipment lowers the drill bit to the seabed, the drill string is lengthened. Transocean calls the
location where this lengthening occurs a “tubular advancing station.” There, a rotary table grips
and supports the suspended drill string, the traveling block is detached, and a new joint of drill
pipe is connected to the string. The hoist is then reattached to the string, the rotary table releases
its grip, and the drill string continues its descent to the seabed. Once the new joint has reached
the drill floor, the process repeats. Downward progress halts as each new joint of drill pipe is
added to the string. This process continues until the drill bit has reached the seabed.
The advent of the “top drive”—a large, powerful motor hung from the traveling block—
expedited wellbore drilling by allowing drillers to add multiple joints of drill pipe, typically in
“stands” of three, to the drill string at the same time. Before top drives, rotary-table rigs could
attach only one 30-foot joint to the drill string at a time. The drill-pipe stands are preassembled
3
“[T]he drawworks is a large winch that spools a heavy cable, called the drilling line.” (Docket Entry No. 27 at 3).
The drilling line runs from the drawworks, over the crown block, and to the traveling block. (See id, figure
depicting the structure).
6
and vertically stored in areas that the patents refer to as “setback envelopes,” located near the
drilling stations. Equipment called “iron roughnecks” travel on tracks to and from the setback
envelopes to thread the preassembled stands on the drill string.
Drilling begins when the drill bit reaches the seabed. The top drive attaches to the drill
string and turns the drill bit.4 The initial wellbore is drilled and the drill string is raised back to
the surface. After the drill pipe is raised, a string of “casing pipe”—a type of tubular steel—is
lowered to the seabed. The casing pipe lines the wellbore and provides structural stability. The
lowering of casing pipe to the seabed is frequently interrupted as additional joints of casing are
added to the drill string.
Once the casing reaches the wellbore, it is cemented in place. This process repeats by
drilling and casing a slightly smaller hole through the original cemented casing, but deeper.
(Docket Entry No. 26 at 8). When the wellbore reaches the intended depth, the driller installs a
“blowout preventer” on the wellbore’s top. The blowout preventer is intended to prevent the
uncontrollable escape of oil and gas from the well.
Like the drill string, the blowout preventer is connected to, and lowered from, the drilling
rig by steel tubulars. These tubulars, called “riser pipe,” are thicker and heavier than the drill
pipe. The riser-pipe string acts as an “umbilical cord” between the well and the drilling rig. Due
to the size of the blowout preventer and riser, lowering the blowout preventer to the well may
take three days or more. (Id. at 9). Once the blowout preventer is in place, drilling continues
through the riser pipe and blowout preventer until the wellbore is deep enough to reach the oil
and gas deposits.
4
A rotary table may also rotate the drill string and the drill bit. (Docket No. 26 at 3–4).
7
Conventional drilling rigs have a single drive and drawworks and can lower and raise
only one string at time. Transocean’s “dual-activity” drill rig patent claims a faster and more
efficient drilling process by having multiple systems capable of simultaneously lowering and
raising the drill string, blowout preventer, and riser. (See Docket Entry No. 22-1, ‘781 Patent,
Figure 5; id. at 3:58–66). The dual-activity drilling rig is intended to reduce the overall time to
complete the wellbore, making it financially more attractive for companies to drill in deeper
water where the greater depths require more time, and higher costs, to lower and raise the drill
strings.
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II.
The Legal Standards for Constructing Claims
It is a “bedrock principle” that “‘the claims of a patent define the invention to which the
patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir.
2005) (en banc) (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d
1111, 1115 (Fed. Cir. 2004)). “[T]he construction of a patent, including terms of art within its
claim, is exclusively within the province of the court.” Markman, 517 U.S. at 372. A court is to
read the patent from the vantage of one with ordinary skill in the art at the time of the invention.
Phillips, 415 F.3d at 1313. Such a person “‘is deemed to read the words used in the patent
documents with an understanding of their meaning in the field, and to have knowledge of any
special meaning and usage in the field.’” Id. (quoting Multiform Desiccants, Inc. v. Medzam,
Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998)); see also Medrad, Inc. v. MRI Devices Corp., 401
F.3d 1313, 1319 (Fed. Cir. 2005) (cautioning courts not to interpret claim terms “in a vacuum”
(internal quotations omitted)). Claim terms are “‘generally given their ordinary and customary
meaning,’” which 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.” Phillips, 415 F.3d at 1312–13 (quoting Vitronics
Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)).
When the ordinary meaning is readily apparent, claim construction “involves little more
than the application of the widely accepted meaning of commonly understood words.” Id. at
1314. If this meaning is not readily apparent, the court reviews “the intrinsic evidence of record,
i.e., the patent itself, including the claims, the specification and, if in evidence, the prosecution
history.” Vitronics, 90 F.3d at 1582; see also Am. Piledriving Equip., Inc. v. Geoquip, Inc., 637
F.3d 1324, 1331 (Fed. Cir. 2011) (“[T]he role of a district court in construing claims is . . . to
give meaning to the limitations actually contained in the claims, informed by the written
description, the prosecution history if in evidence, and any relevant extrinsic evidence.”). The
9
court first looks “to the words of the claims themselves, both asserted and nonasserted, to define
the scope of the patented invention.” Vitronics, 90 F.3d at 1582. Claims must be construed in
context of the surrounding claim language. 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.”).
The Federal Circuit has repeatedly stated that “claims ‘must be read in view of the
specification, of which they are part.’” Phillips, 415 F.3d at 1315 (quoting Markman, 52 F.3d
967, 979 (Fed. Cir. 1995)). The specification is a “concordance for the claims.” Id. (quoting
Autogiro Co. of Am. v. United States, 384 F.2d 391, 397–98 (Ct. Cl. 1967)). It is the “best source
for understanding a technical term.” Id. (quoting Multiform Desiccants, 133 F.3d at 1478); see
also Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1360 (Fed. Cir. 2004)
(“In most cases, the best source for discerning the proper context of claim terms is the patent
specification wherein the patent applicant describes the invention.”).
The specification is
examined “to determine whether the inventor has used any terms in a manner inconsistent with
their ordinary meaning.” Vitronics, 90 F.3d at 1582. When the specification “reveal[s] a special
definition given to a claim term by the patentee that differs from the meaning it would otherwise
possess . . . the inventor’s lexicography governs.” Phillips, 415 F.3d at 1316. “In other cases,
the specification may reveal an intentional disclaimer, or disavowal, of claim scope by the
inventor.” Id.; see also Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed.
Cir. 2012) (explaining that claim construction may deviate from the ordinary and customary
meaning of a disputed term only if (1) “a patentee sets out a definition and acts as his own
lexicographer, or (2) the patentee disavows the full scope of a claim term, either in the
specification or during prosecution”).
10
“‘The construction that stays true to the claim language and most naturally aligns with the
patent’s description of the invention will be, in the end, the correct construction.’” Phillips, 415
F.3d at 1316 (quoting Renishaw PLC v. Marposs Società per Azioni, 158 F.3d, 1243, 1250 (Fed.
Cir. 1998)). “There is a fine line between construing the claims in light of the specification and
improperly importing a limitation from the specification into the claims.” Retractable Techs.,
Inc. v. Becton, Dickinson & Co., 653 F.3d 1296, 1305 (Fed. Cir. 2011). Courts must “capture the
scope of the actual invention, rather than strictly limit the scope of claims to disclosed
embodiments or allow the claim language to become divorced from what the specification
conveys is the invention.” Id.
“[A] court ‘should also consider the patent’s prosecution history, if it is in evidence.’”
Phillips, 415 F.3d at 1317 (quoting Markman, 52 F.3d at 980). The 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.; see also Typhoon Touch Techs., Inc.
v. Dell, Inc., 659 F.3d 1376, 1381 (Fed. Cir. 2011) (“[T]he specification is the primary source for
determining what was invented and what is covered by the claims, elucidated if needed by the
prosecution history.”). The prosecution history includes “all express representations made by or
on behalf of the applicant to the examiner to induce a patent grant, or . . . to reissue a
patent. . . . includ[ing] amendments to the claims and arguments made to convince the examiner
that the claimed invention meets the statutory requirements of novelty, utility, and
nonobviousness.” Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 452 (Fed. Cir. 1985);
see also Sanofi-Aventis Deutschland GmbH v. Genentech, Inc., 473 F. App’x 885, 888 (Fed. Cir.
2012) (“We have held that an otherwise broadly defined term can be narrowed during
11
prosecution through arguments made to distinguish prior art.”); 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.”).
“The doctrine of prosecution disclaimer is well established in Supreme Court precedent,
precluding patentees from recapturing through claim interpretation specific meanings disclaimed
during prosecution.” Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1323 (Fed. Cir. 2003).
The doctrine applies even if the concessions were not necessary to make the invention
patentable. See Uship Intellectual Props., LLC v. United States, 714 F.3d 1311, 1315 (Fed. Cir.
2013) (“We find no support for [the] proposition that prosecution disclaimer applies only when
applicants attempt to overcome a claim rejection. Our cases broadly state that an applicant’s
statements to the PTO characterizing its invention may give rise to a prosecution disclaimer.”);
cf. Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1583 (Fed. Cir. 1995) (“Estoppel
extends beyond the basis of patentability . . . . Clear assertions made during prosecution in
support of patentability, whether or not actually required to secure allowance of the claim, may
also create an estoppel.”). The doctrine does not apply “where the alleged disavowal of claim
scope is ambiguous.” Omega Eng’g, 334 F.3d at 1324; see also id. at 1325 (“[W]e have required
the alleged disavowing statements to be both so clear as to show reasonable clarity and
deliberateness and so unmistakable as to be unambiguous evidence of disclaimer.” (internal
citation omitted)). Only when “the patentee has unequivocally disavowed a certain meaning to
obtain his patent [does] the doctrine of prosecution disclaimer attach[] and narrow[] the ordinary
meaning of the claim congruent with the scope of the surrender.” Id. at 1324.
Courts may, within limits, also “rely on extrinsic evidence, which ‘consists of all
evidence external to the patent and prosecution history, including expert and inventor testimony,
12
dictionaries, and learned treatises.’” Phillips, 415 F.3d at 1317 (quoting Markman, 52 F.3d at
980).
Although extrinsic evidence “‘can shed useful light on the relevant art,’ it is ‘less
significant than the intrinsic record in determining the legally operative meaning of claim
language.’” Zircon Corp. v. Stanley Black & Decker, Inc., 452 F. App’x 966, 972–73 (Fed. Cir.
2011) (quoting Phillips, 415 F.3d at 1317). As explained in Phillips, extrinsic evidence is “in
general . . . less reliable than the patent and its prosecution history” for several reasons. Phillips,
415 F.3d at 1318. Extrinsic evidence is “not part of the patent” and was not created during the
patent prosecution. Id. “[E]xtrinsic publications may not be written by or for skilled artisans.”
And expert reports and testimony created for litigation may “suffer from bias that is not present
in intrinsic evidence.” Id.
“[E]xtrinsic evidence may be useful to the court, but it is unlikely to result in a reliable
interpretation of patent claim scope unless considered in the context of the intrinsic evidence.”
Id. at 1319. Such evidence must not relegate the intrinsic evidence to a mere “check on the
dictionary meaning of a claim term.” Id. at 1320; see also id. at 1321 (noting that relying on
dictionaries “too often” causes “the adoption of a dictionary definition entirely divorced from the
context of the written description”). “The sequence of steps used by the judge in consulting
various sources is not important; what matters is for the court to attach the appropriate weight to
be assigned to those sources in light of the statutes and policies that inform patent law.” Id. at
1324.
This legal framework is applied to the parties’ competing constructions of the disputed
claim terms.
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III.
Analysis
A.
“Derrick” and “Drilling Superstructure”
Transocean’s Proposed Construction
Stena’s Proposed Construction
“A structure mounted upon a drilling deck “A single tower structure that supports the
that supports the load of drilling operations.”
weight of the tubular strings used in drilling.”
The terms “derrick” and “drilling superstructure” are in claims 10 and 30 of the ‘781
Patent, claims 10 and 12 of the ‘851 Patent, and claims 17 and 19 of the ‘069 Patent. The parties
agree that “derrick” and “drilling superstructure” have the same meaning and that the patents use
them interchangeably. (See Docket Entry No. 82-1 at 1). This ruling refers to the two terms as
“derrick” for convenience.
The parties identify two primary disputes in constructing “derrick.” The first is whether a
“derrick” is limited to a “tower structure,” as opposed to a broader range of “structures” that are
not limited to tall towers. These other structures could include connected frames and other
support assemblies. The parties agree that the Transocean patents cover only a single derrick,
(Docket Entry No. 78 at 5), but Transocean does not agree to limit the definition to a tall tower,
as Stena argues. The first dispute is whether a “single derrick” is limited to a tall tower.
The second dispute is whether a “derrick” includes all the support structures “mounted
upon a drilling deck,” which would include the base or support structure below the drill floor, as
Transocean contends, or whether “derrick” is limited to the part of the structure above the drill
floor, excluding the base or support structure, as Stena contends.
A third and more minor dispute is whether the “derrick” supports “the load of drilling
operations,” as Transocean contends, or supports “the weight of the tubular strings used in
drilling,” as Stena argues.
14
Each dispute is analyzed below.
1.
Whether “Derrick” is Limited to a “Single Tower Structure”
Stena’s proposed construction of “derrick” is a “single tower structure,” limiting the
claim term to a “tall” tower structure similar to the four-legged derrick in the specification.
(Docket Entry No. 74 at 7). Transocean’s proposed construction would not limit the claimed
invention to such a tall tower.
The specification states that the invention is not limited to a four-sided tall derrick similar
to that shown in Figure 5 of the ‘851 Patent.
The specification states: “in a preferred
embodiment, the multi-activity support structure is in the form of a four sided derrick.” (‘851
Patent, 8:14–15). But the next sentence states that the invention “is intended to include other
superstructure [derrick] arrangements such as tripod assemblies or even two adjacent upright but
interconnected frames.” (Id. at 8:15–18 (brackets added)). The reference to tripod assemblies
and adjacent upright interconnected frames is a representative, not a comprehensive, description
of the types of structures that can constitute the “derrick.” Stena has not pointed to language in
the specification or claims limiting this broad description. The intrinsic evidence supports
Transocean’s construction of the disputed term.
Stena relies on the preferred embodiment of a four-sided derrick to support its argument
that a “derrick” is limited to a “tall tower.” (See Docket Entry No. 74 at 7 (“For instance, the
patent figures depict derrick 40 as a tall tower.”)). Stena contends that the tower must be “tall”
based on the fact that “the stands of casing [pipe] are up to 125 feet long,” requiring the derrick
to “have a tower structure at least that large to accomplish the recited advantage.” (Id.). But
courts have “expressly rejected the contention that if a patent describes only a single
embodiment, the claims of the patent must be construed as being limited to that embodiment.”
15
Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004); see also MySpace,
Inc. v. GraphOn Corp., 672 F.3d 1250, 1255 (Fed. Cir. 2012) (“[L]imitations from parts of the
written description, such as the details of the preferred embodiment, cannot be read into the
claims absent a clear intention by the patentee to do so.”). Stena has not shown why the fact that
the tubular assemblies can be up to 125-feet tall necessarily limits the derrick structure to a “tall
tower.” For example, the record does not show that a mast or structure other than a tower could
not handle 125-foot tall tubular assemblies. Indeed, in its original proposed claim construction,
Stena stated that a derrick could be a “mast structure.” (Docket Entry No. 23, Ex. C at 1). The
fact that the preferred embodiment is a four-sided derrick does not limit the claim to that
embodiment.5
The term “derrick” is not limited to a “tall tower structure.”
2.
Whether “Derrick” is “Mounted on a Drilling Deck”
Transocean contends that “derrick” means a structure “mounted upon a drilling deck.”
Stena argues that “mounted upon a drilling deck” should not be included in the definition.
Although it appears that Transocean’s proposed construction would be more restrictive and limit
the claim scope, the opposite seems more accurate. Transocean’s construction of “derrick” as
the structure “mounted upon the drilling deck” results in the definition including the base or
support structure below the drill floor and above the drilling deck. Construing “derrick” without
the “mounted upon a drilling deck” language excludes the base from the definition of “derrick.”
5
Stena cites an excerpt from a document Transocean apparently filed before the European Patent Office stating that
Transocean’s invention was not “directed to any special or new components of offshore drilling activity.” (Docket
Entry No. 74, Ex. 18 at 68). The context in which Transocean made this statement is unclear. It is also unclear that
a “tall tower structure” was the only type of derrick “well known in the art” when the document was filed. The
record does not show that a different type of support structure, for example, a tripod assembly, upright
interconnected frames, or mast systems were not well known in 2004, the year Transocean submitted the document
to the European Patent Office.
16
The preferred embodiment provides helpful context. Figure 5 from the ‘851 Patent,
shown below, is an elevational view of the “derrick” showing the preferred embodiment as
mounted on a drillship substructure or drilling deck.
In this embodiment, the drill floor (114) is located above the base (110). Transocean contends
that its construction results in defining the derrick (40) to include the base (110) that extends
below the drill floor (114) and above the drilling deck (112).
The specification and claims support Transocean’s construction that the base (110) is part
of the derrick (40). The specification states that “[t]he derrick 40 includes a base 110 which is
joined to the drillship substructure 112 symmetrically above the moon pool 34.”6 See ‘851
Patent, 6:21–23 (emphasis added)). Referring to diagrams showing the multi-activity derrick
sequence of operations, the specification states that the derrick is “positioned upon a drilling
deck.” Id. at 8:33–34. Figures 9–22 are consistent with construing “derrick” as on the drilling
6
“Drillship substructure” is synonymous with “drill deck.”
17
deck, not just above the drilling floor. In Figure 13, the derrick (40) is the only structure on the
drilling deck that the figure identifies; the base (110) legs are shown but the base is not
identified. If “derrick” did not include the base and support structures below the drill floor, the
base shown in Figure 13 would be separately identified and labeled.
Stena argues that the figures showing the sequence of operations are not useful for
determining the derrick’s structure because the reference to the figures is under the “Method of
Operation” section of the specification, not the “Multi-Activity Drillship” and “Multi-Activity
Derrick” sections. Stena does not explain why the fact that the figures are in the “Method of
Operation” section of the specification is a reason to discount the specification’s statement that
“derrick 40 [is] positioned upon a drilling deck 190.” Id. at 8:33–34. This language is consistent
with the specification’s other parts, specifically, the part of the “Multi-Activity Derrick” section
stating that “[t]he derrick 40 includes a base 110.” Id. at 6:21–22.
The references to “drilling superstructure” in the independent claims support
Transocean’s construction. The parties agree that “drilling superstructure” is synonymous with
“derrick.” Some of the disputed independent claims in the patents-in-suit claim a “drilling
superstructure . . . mounted upon a drilling deck.” E.g. ‘851 Patent, 14:21–22, claim 10 (“a
drilling superstructure operable to be mounted upon a drilling deck); ‘781 Patent, 18:14–15,
claim 30 (same). This claim language is the same as claiming a “derrick” “operable to be
mounted upon a drilling deck.” The claim and specification language are persuasive intrinsic
evidence that a “derrick” includes the “base.”
To support its construction, Stena relies on intrinsic evidence in the form of prior art cited
in the patents. The Federal Circuit has recognized that “prior art cited in a patent or cited in the
prosecution history of the patent constitutes intrinsic evidence.” Kumar v. Ovonic Battery Co.,
18
351 F.3d 1364, 1368 (Fed. Cir. 2003); Tate Access Floors, Inc. v. Interface Architectural Res.,
Inc., 279 F.3d 1357, 1371–72 n.4 (Fed. Cir. 2002). This prior art “can have particular value as a
guide to the proper construction of the term, because it may indicate not only the meaning of the
term to persons skilled in the art, but also that the patentee intended to adopt that meaning.” VFormation, Inc. v. Benetton Grp. SpA, 401 F.3d 1307, 1311 (Fed. Cir. 2005) (quoting Arthur A.
Collins, Inc. v. N. Telecom Ltd., 216 F.3d 1042, 1045 (Fed. Cir. 2000)).
The Transocean patents refer to prior art in which “derrick” did not include the base or
support structure below the drill floor. One Transocean patent, U.S. Patent No. 6,056,071,7 lists
U.S. Patent No. 4,602,894 in the “References Cited” section.
The prior-art ‘894 Patent
separately describes the “derrick” and the structures supporting the derrick. (Docket Entry No.
74, Ex. 25, 3:5–9 (describing a “sub-base . . . support[ing] a superstructure upon which the
derrick . . . [is] mounted”). Another prior-art patent, U.S. Patent No. 3,279,404, describes the
“derrick platform” or support structure below the drill floor separately from the “derrick,” which
covers only the structure above the drill floor. (Id., Ex. 26, fig. 1, 3:28–29). The prior-art ‘404
Patent, like the Transocean patents, contains an embodiment with upright support columns acting
as a base supporting the drill floor and structures mounted on the drill floor. The use of
“derrick” in the prior art is intrinsic evidence supporting Stena’s argument that “derrick” does
not include the base below the drill floor. As far as the court can determine, Transocean has not
cited prior art defining “derrick” to include the base or support columns below the drill floor.
Stena’s prior-art references are insufficient to support its construction, however, given the
plain language in the specification and claims supporting Transocean’s construction.
See
Interactive Gift Express, Inc. v. Compuserve, Inc., 256 F.3d 1323, 1331 (Fed. Cir. 2001) (quoting
7
The ‘071 Patent is a child application of the ‘851 Patent. Transocean no longer asserts that Stena infringed this
patent.
19
35 U.S.C. § 112 ¶ 2) (“In construing claims, the analytical focus must begin and remain centered
on the language of the claims themselves, for it is that language that the patentee chose to use to
‘particularly point out and distinctly claim the subject matter which the patentee regards as his
invention.’”). First, as noted above, the specification in the Transocean patents states that the
“derrick” includes the “base.” Unlike the Transocean patents, the prior-art patents did not
expressly define “[t]he derrick [to] include[] a base.” See ‘851 Patent, 6:21. The Transocean
patent claims state that the “drilling superstructure,” which is synonymous with “derrick,” is
“mounted upon the drill deck,” which is below the drill floor, meaning that the derrick includes
the base. Second, while the Transocean patents cite the prior-art ‘894 and ‘404 Patents, the
specification mentions only the ‘404 Patent.8 But the reference to the ‘404 Patent is as an
example of how the drillship can be “turret moored.” The specification did not refer to the ‘404
Patent to explain the meaning of “derrick” or whether the “derrick” includes the base. The ‘404
Patent’s use of “derrick” provides little help in determining whether the Transocean “patentee[s]
intended to adopt th[e] same meaning” of “derrick.”
See V-Formation, 401 F.3d at 1311
(internal quotations omitted).
As to extrinsic evidence, Stena cites treatises defining “derrick” to exclude the base or
substructure on which it sits. For example, The Primer on Offshore Operations states that a
“standard derrick has four legs standing at the corner of the rig’s substructure.” (Docket Entry
No. 74, Ex. 30, Ron Baker, A PRIMER OF OFFSHORE OPERATIONS 43, 109 (3d ed. 1998); see also
id., Ex. 15 Ron Baker, A PRIMER
OF
OFFSHORE OPERATIONS 173 (6th ed. 2001) (defining the
“standard derrick” as having “four legs standing at the corners of the substructure and reaching
8
Stena’s response also mentions U.S. Patent No. 4,850,439, U.S. Patent No. 3,001,594, and UK Patent 2,291,664.
These patents are listed only in the “References Cited” section. These patents, like the ‘894 Patent, are not
mentioned in the specification.
20
to the crown block”); id., Ex. 17 A DICTIONARY
FOR THE
OIL
AND
GAS INDUSTRY 16 (1st ed.
2005) (same). This supports Stena’s argument that a person of ordinary skill in the art would
understand a “derrick” and the base or substructure on which it rests on as two distinct structures.
Transocean has not identified extrinsic evidence defining “derrick” as including the base or
substructure.
The extrinsic evidence Stena cites, however, must be viewed “in the context of the
intrinsic evidence.” Phillips, 415 F.3d at 1319. Extrinsic evidence is “less reliable than the
patent . . . in determining how to read claim terms,” id. at 1318; intrinsic evidence is the principal
source for claim construction and, when clear, overrides contrary extrinsic evidence. The clear
intrinsic evidence weighs strongly in favor of construing “derrick” to include the “base.” The
extrinsic evidence Stena has cited is insufficient to overcome the clear language in the
specification and claims defining “derrick” to include the base.
The court construes the claim terms “derrick” and “drilling superstructure” to include the
“mounted upon a drilling deck” language in Transocean’s proposed definition.
3.
Whether a derrick supports “the load of drilling operations” or the
“weight of the tubular strings used in drilling”
The parties agreed that “load” and “weight” have the same meaning and are used
interchangeably. (Docket Entry No. 91 at 74). The parties dispute whether “derrick” should be
construed to mean a structure that supports the “weight of the tubular strings used in drilling,” as
Stena argues, or as a structure that “supports the load of drilling operations,” as Transocean
contends.
21
Stena argues that Transocean’s proposed definition is ambiguous because the term
“drilling operations” is imprecise and does not reveal the claim boundaries. According to Stena,
the term “drilling operations” is so broad as to include drilling mud pumps, blowout preventers,
riser pipe, roughnecks, and possibly even the ship galley. (Docket Entry No. 74 at 11). Stena
contends that the inventions concern a narrower range of “operations” closely related to drilling
the wellbore. Stena notes that the vast majority of equipment used to construct the wellbore—
which includes the drill pipe, drill bits, casing pipe, riser pipe, and blowout preventer—is
attached to the derrick via tubular strings.
Transocean responds with arguments that Stena’s proposed construction is too narrow.
Although most drilling equipment is attached to the derrick using tubular strings, that is not true
of all drilling equipment. Some drilling equipment can be lowered and raised using wirelines
attached to the derrick, (Docket Entry No. 91 at 38, 73), making Stena’s construction
underinclusive.
The court agrees that Stena’s construction is too narrow and that Transocean’s is not
improperly ambiguous. The weight or load that the derrick supports is construed to mean the
“load of drilling operations,” not merely the “weight of the tubular strings used in drilling.” The
court’s ruling on the construction of “derrick” and “drilling superstructure” is as follows:
Court’s Construction
Disputed Terms
“derrick” and “drilling superstructure”
“a single structure mounted upon a drilling
deck that supports the load of drilling
operations”
22
B.
“Tubular advancing station connected to said drilling superstructure for advancing
tubular members.”
Transocean’s Proposed Construction
Stena’s Proposed Construction
An assembly of equipment capable of
advancing tubular members to the seabed.
A means-plus-function governed by § 112 ¶
6.
Function: advancing tubular members
Structure:
equipment for hoisting
(drawworks, cable, sheaves, and a traveling
block), equipment for making-up and
breaking down tubular strings (combination
of an iron roughneck, pipe tong, spinning
chain, a Kelly and/or rotary swivel), and
optionally equipment for rotating tubular
strings (top drive or rotary table).
This section of the Memorandum and Opinion, unlike the others, is a tentative ruling
construing a disputed term in claim 17 of the ‘069 Patent. District courts may issue tentative
rulings when the decision is a close one and the parties’ reactions could provide greater
assurance of accuracy before a final ruling is issued. Transocean and Stena may file reactions,
up to ten pages each, limited to this tentative ruling, no later than Friday, November 14, 2014.
Stena asserts that the disputed claim term, “tubular advancing station connected to said
drilling superstructure for advancing tubular members,” is properly construed as a means-plusfunction limitation subject to 35 U.S.C. § 112 ¶ 6. Transocean argues that the claim sufficiently
denotes structure to avoid § 112 ¶ 6. The court’s tentative ruling is that Transocean’s arguments
are more persuasive.
1.
The Applicable Law
23
The Federal Circuit has consistently held that “[m]eans-plus-function claiming applies
only to purely functional limitations that do not provide the structure that performs the recited
function.” Welker Bearing Co. v. PHD, Inc., 550 F.3d 1090, 1096 (Fed. Cir. 2008) (alteration in
the original) (quoting Phillips v. AWH Corp., 415 F.3d at 1311 (Fed. Cir. 2005)). Under 35
U.S.C. § 112 ¶ 6, “[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.” Means-plus-function claims do not cover all possible means for performing the
stated function. Instead, they are “construed to cover the corresponding structure, material, or
acts described in the specification and equivalents thereof.” Phillips, 415 F.3d at 1309.
Courts treat claims using the term “means” as “invok[ing] a rebuttable presumption that §
112 ¶ 6 applies.” CCS Fitness Inc. v. Brunswick Corp., 288 F.3d 1359, 1369 (Fed. Cir. 2002);
see also Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1358 (Fed. Cir. 2004).
If the claim does not use the term “means,” “a rebuttable presumption that § 112 ¶ 6 does not
apply” is triggered. CCS Fitness, 288 F.3d at 1369. “[T]he presumption flowing from the
absence of the term ‘means’ is a strong one that is not readily overcome.” Lighting World, 382
F.3d at 1358; see also Flo Healthcare Solns., LLC v. Kappos, 697 F.3d 1367, 1374 (Fed. Cir.
2012) (“When the claim drafter has not signaled his intent to invoke § 112 ¶ 6 by using the term
‘means,’ we are unwilling to apply that provision without a showing that the limitation
essentially is devoid of anything that can be construed as structure”).
“The use of the term ‘means’ is central to the analysis, because the term ‘means,’
particularly as used in the phrase ‘means for,’ is part of the classic template for functional claim
elements, and has come to be closely associated with means-plus-function claiming.” Lighting
World, 382 F.3d at 1358 (internal quotations and citations omitted). The presumption in favor of
24
construing a claim using the word “means” as a § 112 ¶ 6 “means-plus-function” claim is based
on the statutory language “that an element in a claim for a combination ‘may be expressed’ as a
means for performing a function,” which gives the patentee the choice of the means-plusfunction claiming. Greenberg v. Ethicon EndoBSurgery, Inc., 91 F.3d 1580, 1584 (Fed. Cir.
1996). “The question then is whether, in the selection of claim language, the patentee must be
taken to have exercised that option.” Id.
The disputed claim term “tubular advancing station . . . for advancing tubular members,”
does not use the word “means.” Stena acknowledges that the presumption is against applying §
112 ¶ 6. See Lighting World, 382 F.3d at 1358; (Docket Entry No. 74 at 16). To overcome the
presumption, Stena must present or identify evidence in the record showing by a preponderance
that “the claim term fails to ‘recite sufficiently definite structure’ or recites a ‘function without
reciting sufficient structure for performing that function.’” Lighting World, 382 F.3d at 1358
(quoting CCS Fitness, 288 F.3d at 1369).
Several cases from the Federal Circuit are particularly instructive on whether the drafter
invoked § 112 ¶ 6 for claims that do not use the word “means.” The cases include Greenberg v.
Ethicon EndoBSurgery, Inc., 91 F.3d 1580 (Fed. Cir. 1996); Lighting World, Inc. v. Birchwood
Lighting, Inc., 382 F.3d 1354 (Fed. Cir. 2004); Mas-Hamilton Group v. LaGard, Inc., 156 F.3d
1206 (Fed. Cir. 1998); Massachusetts Institute of Technology (“MIT”) v. Abacus Software, 462
F.3d 1344; (Fed. Cir. 2006); and Welker Bearing Co. v. PHD, Inc., 550 F.3d 1090 (Fed. Cir.
2008).
In Greenberg, the Federal Circuit examined a patent for endo-mechanical surgical
instruments, which are thin surgical instruments inserted into the body through small openings.
91 F.3d at 1580. The court held that the claim term “detent mechanism defining the conjoint
25
rotation” was not subject to means-plus-function claiming under § 112 ¶ 6. Id. at 1584. The
court focused on the word “detent,” which modified “mechanism” in the claim. Looking to
dictionary definitions, the court found it “clear that the noun ‘detent’ denotes a type of device
with a generally understood meaning in the mechanical arts, even though the definitions are
expressed in functional terms.” Id. at 1583. The court acknowledged “that the term ‘detent’
does not call to mind a single well-defined structure, but the same could be said of other
commonplace structural terms such as ‘clamp’ or ‘container.’” Id. After the term “detent
mechanism,” the drafter set out the structure defining the “detent mechanism,” and did not use
functional language to do so. When viewed in the context of the specification, the modifier
“detent” recited structure, not function. Id. at 1584 (“A close reading of the specification
reveals, however, that the term is used in that portion of the patent simply as a shorthand way of
referring to each of the key structural elements of the invention.”).
In Lighting World, the Federal Circuit reversed the trial court’s ruling that the term
“connector assembly for connecting each pair of adjacent support members” was in means-plusfunction form, holding that the claim did not use “means” and one of ordinary skill in the art
would understand “connector” to denote structure. The trial court had reasoned that “in order to
be regarded as structural for purposes of section 112 ¶ 6, a claim limitation must identify a
specific structure and not use a generic term that includes a wide variety of structures.” 382 F.3d
at 1359. The Federal Circuit found the district court’s interpretation “unduly restrictive.” Id.
The term “connector assembly” provided sufficient structure and the presumption against meansplus-function construction stood. Id. at 1360B63.
The Federal Circuit did not hold in Lighting World that the term “assembly,” standing
alone, described a structure. Rather, the term “connector,” with and modifying “assembly,”
26
described a structure. The court relied on dictionary definitions for “connector,” finding that it
had a “reasonably well-understood meaning as a name for structure.” Id. at 1361 (noting the
dictionary definitions of “connector” as “any of various devices for connecting one object to
another” and “connect” as “to join, fasten, or link together . . . by means of something
intervening”). Based on these definitions, the court construed “connector assembly” in the claim
to “mean[] a unit that joins, fastens, or links each pair of adjacent support members.” Id. The
court explained:
In considering whether a claim term recites sufficient structure to
avoid application of section 112 ¶ 6, we have not required the
claim term to denote a specific structure. Instead, we have held
that it is sufficient if the claim term is used in common parlance or
by persons of skill in the pertinent art to designate structure, even
if the term covers a broad class of structures and even if the term
identifies the structures by their function.
Id. at 1359B60.
The court elaborated, noting that “‘the fact that a particular mechanism . . . ‘means for
performing a specified function’ within the meaning of section 112(6).’” Id. at 1360 (quoting
Greenberg, 91 F.3d at 1583). It did not matter “that the term ‘connector assembly’ does not
bring to mind a particular structure.” Id. The important inquiry was “whether the term is one
that is understood to describe structure, as opposed to a term that is simply a nonce word or a
verbal construct that is not recognized as the name of structure and is simply a substitute for the
term ‘means for.’” Id.
The court in Lighting World reaffirmed the strong presumption that a claim limitation not
using the word “means” is not in means-plus function form. The court stated:
[I]t is not surprising that we have seldom held that a limitation not
using the term “means” must be considered to be in means-plusfunction form. In fact, we have identified only one published
opinion since Greenberg in which we have done so, and that case
27
provides a useful illustration of how unusual the circumstances
must be to overcome the presumption that a limitation lacking the
word “means” is not in means-plus-function form. Th[at]
exceptional case is Mas-Hamilton.
Id. at 1362.
In Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206 (Fed. Cir. 1998), the Federal
Circuit examined a patent for an electro-mechanical lock. The disputed claim term was a “lever
moving element for moving the lever.” The court held that the term failed sufficiently to
describe structure and was in means-plus-function form, despite the absence of the word
“means.” The court assumed that the term “element” was nonstructural. See id. at 1213–14.
“Element” was preceded by the modifier “lever moving,” which described a function, not a
structure. The specification did not define the term “lever moving element” as a structure. Id. at
1214. There was no dictionary definition of “element” suggesting structure, and no structural
meaning for the term in the relevant-art sources. The court concluded that the nonstructural term
“element” was modified only by functional language, defeating the presumption against finding
means-plus-function form. Id.
The Federal Circuit in Lighting World distinguished Mas-Hamilton in concluding that
“connector assembly” sufficiently described structure to avoid § 112 ¶ 6, while “lever moving
element” did not. See Lighting World, 382 F.3d at 1363. The term “connector assembly,” unlike
“lever moving element,” had a structural definition understood in the relevant art and defined in
the patent specification, dictionaries, and expert testimony. Id. And the patent history in MasHamilton showed that the patentee “had used the terms ‘member,’ ‘element,’ and ‘means’
interchangeably, and in the patent itself the patentee described the ‘lever moving element’ and
the ‘movable link member’ as the ‘[m]eans . . . for’ moving the lever, and the ‘[m]eans . . . for
28
reasonably maintaining the pivotable lever in a position substantially disengaged.’” Id. at 1362
(brackets and omissions in the original).
Two other Federal Circuit cases are also instructive. In MIT v. Abacus Software, 462
F.3d 1344, 1355 (Fed. Cir. 2006), the court held that the term “colorant selection mechanism for
receiving said modified appearance signals and for selecting corresponding reproduction signals
representing values of said reproducing colorants” rebutted the presumption against means-plusfunction construction because the claim used the nonstructural term “mechanism,” preceded by
the nonstructural modifier “colorant selection.”
The specification did not denote “colorant
selection” as a structure. “Colorant selection” had no dictionary definition signifying structure
and no known structural meaning in the art. Id. at 1354. The claim was in means-plus-function
form despite the absence of the word “means.”
The Federal Circuit reached the same result in Welker Bearing Co. v. PHD, Inc., 550
F.3d 1090 (Fed. Cir. 2008). Construing the claim term “mechanism for moving said finger,” the
court held that the term “mechanism” was neither structural nor modified by a structural term.
Id. at 1096–97. Instead, the functional term “for moving” modified the word “mechanism.” The
term “said finger” was structural, but “said finger” did not modify, and could not be used to
define, “mechanism.” A person of ordinary skill in the art “would have no recourse but to turn to
the . . . specification to derive a structural connotation for . . . ‘mechanism for moving said
finger.’” Id. at 1096. The court noted that its conclusion might have been different if the patent
provided a structural context for the meaning of “mechanism.” For example, the patent could
have used terms such as “finger displacement mechanism,” “lateral projection/retraction
mechanism,” or “clamping finger actuator.” Id. at 1096. Had those terms been used, the “court
could have inquired beyond the vague term ‘mechanism’ to discern the understanding of one of
29
skill in the art. If that artisan would have understood such language to include a structural
component, th[e] court’s analysis may well have turned out differently.” Id. at 1096–97. But
instead of using language denoting structure, “the applicant chose to express this claim element
as ‘a means or step for performing a specified function without the recital of structure, material,
or acts in support thereof.’” Id. at 1097 (quoting 35 U.S.C. § 112 ¶ 6).
The following chart summarizes the disputed terms in these cases and the Federal
Circuit’s constructions:
Means-PlusFunction
Case
Disputed Term
Greenberg v. Ethicon EndoSurgery, Inc., 91 F.3d 1580 (Fed.
Cir. 1996)
Lighting World, Inc. v. Birchwood
Lighting, Inc., 382 F.3d 1354 (Fed.
Cir. 2004)
Mas-Hamilton Group v. LaGard,
Inc., 156 F.3d 1206 (Fed. Cir.
1998)
“detent mechanism defining the conjoint
rotation”
No
“connector assembly for connecting each
pair of adjacent support members”
No
“lever moving element for moving the
lever”
Yes
“colorant selection mechanism for
Massachusetts
Institute
of receiving said modified appearance
Technology v. Abacus Software, signals and for selecting corresponding
reproduction signals representing values
462 F.3d 1344 (Fed. Cir. 2006)
of said reproducing colorants”
Welker Bearing Co. v. PHD, Inc.,
“mechanism for moving said finger”
550 F.3d 1090 (Fed. Cir. 2008)
30
Yes
Yes
The Federal Circuit’s guidance in Greenberg, Lighting World, Mas-Hamilton, MIT, and
Welker Bearing indicates that a nonstructural term must be modified by a term connoting
structure or having a structural meaning in the art to avoid a means-plus-function construction.
These cases are applied to analyze whether the disputed claim term, “tubular advancing station
connected to said drilling superstructure for advancing tubular members,” denotes sufficient
structure to avoid invoking § 112 ¶ 6.
2.
Whether “tubular advancing station connected to said drilling
superstructure for advancing tubular members” is in means-plus-function form
Claim 17 of the ‘069 Patent claims a “tubular advancing station connected to said drilling
superstructure for advancing tubular members.” ‘069 Patent, 17:22B23. The disputed claim term
is not only “tubular advancing station,” but includes “connected to said drilling superstructure”
and the functional language “for advancing tubular members.” In the briefs, Transocean focused
on the three-word term “tubular advancing station,” while Stena focused on the term “tubular
advancing station . . . for advancing tubular members.”
The disputed term does not use “means” or “means for,” triggering the presumption
against mean-plus-function construction. Transocean argues that Stena cannot overcome the
presumption.
Transocean construes “tubular advancing station” to mean “an assembly of
equipment capable of advancing tubular members to the seabed.” (Docket Entry No. 82–1 at
14). Transocean argues that a “station” is a place where the equipment capable of performing a
certain function is collected, and that this connotes sufficient structure to maintain the
presumption. Transocean recognizes that the structure is defined in terms of what the equipment
assembled there can do—advance tubular membersCbut relies on Lighting World’s holding that
31
“it is sufficient if the claim term is used in common parlance or by persons of skill in the
pertinent art to designate structure, even if the term covers a broad class of structures and even if
the term identifies the structure by their function.” 382 F.3d at 1359–60.
Stena argues that the disputed term does not connote structure and is wholly defined by
the function it performs (advancing tubular members), making it a classic means-plus-function
limitation. Stena argues for a means-plus-function construction, with the function defined as
“advancing tubular members” and the structure defined as “equipment for hoisting (drawworks,
cable, sheave, and a traveling block), equipment for making-up and breaking down tubular
strings (combination of an iron roughneck, pipe tong, spinning chain, a kelly and/or rotary
swivel), and optionally equipment for rotating tubular string (top drive or rotary table).” (Docket
Entry No. 82–1 at 14–15).
The claim uses the term “station.” Transocean construes “station” as the place where
equipment is collected; Stena construes it as a vague term not denoting structure, like the term
“element” in Mas-Hamilton.
The dictionary defines “station” as follows:
1a:
the place or position in which something or someone stands or is assigned to stand
or remain
1b:
any of the places in a manufacturing operation at which one part of the work is
done
1c:
equipment used usually by one person for performing a particular job
2:
the act or manner of standing: posture
3:
a stopping place: as
a(1):
a regular stopping place in a transportation route
a(2):
the building connected with such a stopping place : depot []
b:
one of the stations of the cross
32
4a:
a post or sphere of duty or occupation
4b:
a stock farm or ranch especially of Australia or New Zealand
5:
standing, rank
6:
a place for specialized observation and study of scientific phenomena
7:
a place established to provide a public service: as
a(1):
fire station
a(2):
police station
b:
a branch post office
8:
gas station
9a:
a complete assemblage of radio or television equipment for transmitting or
receiving
9b:
the place in which such a station is located.
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1219 (11th ed. 2003).
These definitions show that the common meaning of “station” includes meanings that
connote structure. “Station” will usually connote structure when it means the location for
performing certain operations or tasks, or the location for housing the equipment needed for such
operations or tasks. These descriptions of “station” correspond to the dictionary definitions—
“the places in a manufacturing operation at which one part of the work is done,” an “assemblage
of radio or television equipment for transmitting or receiving,” and “the building connected with
. . . [a regular stopping place] in the transportation route.” See id. at 1219.
The word “station” by itself also has meanings that do not connote structure, such as a
location or place where someone stands, “a post or sphere of duty or occupation” and “standing
rank.” Id. Stena argues that “station” is similar to such generic terms as “‘mechanism,’ ‘means,’
33
‘element,’ and ‘device,’ [that] typically do not connote sufficiently definite structure,” see MIT,
462 F.3d at 1354, and trigger § 112 ¶ 6.9
Claim language may “further define[] a generic term” such that it “can sometimes add
sufficient structure to avoid 112 ¶ 6.” MIT, 462 F.3d at 1354. In Greenberg, the modifying noun
“detent” “denote[d] a type of device with a generally understood meaning in the mechanical arts,
even though the definitions are expressed in functional terms.” Greenberg, 91 F.3d at 1583. The
court noted that multiple dictionaries defined “detent” such that a person of ordinary skill in the
mechanical arts would know that it denoted a type of device and connoted structure. Id.
Similarly, in Lighting World, the court looked to dictionaries and concluded that the “connector”
modifying “mechanism” has a “reasonably well-understood meaning as a name for structure,
even though the structure is defined in terms of the function it performs.” 382 F.3d at 1361.
The modifying words “tubular advancing” precede the disputed term “station.”
If
“station” alone does not sufficiently connote structure, one question is whether the modifying
words “tubular advancing” add a sufficient reference to structure that one skilled in the relevant
art would understand “tubular advancing station” to connote structure. Unlike the modifying
words in Greenberg and Lighting World, the modifying words “tubular advancing” do not have
dictionary definitions or other definitions illuminating whether one of ordinary skill in the
relevant art would understand “tubular advancing station” to denote structure. Transocean
argues that a skilled person, such as a worker on an offshore oil rig or drilling ship, would
9
Stena cited Bemis Manufacturing Co. v. Dornoch Medical Systems, No. 98-cv-952, 2000 U.S. Dist. LEXIS 21768
(E.D. Wis. Aug. 30, 2000), for the proposition that “station” fails to sufficiently denote structure. In Bemis, the issue
was whether the term, “a cleaning station for . . . automatically draining and cleaning said suction canister after said
suction port is disconnected from the vacuum source and said patient port is disconnected from the patient,” was in
means-plus-function form. The district court held that it was. Id. at *24. The decision’s usefulness in the present
case is limited due to the fact that the court did not explain why it concluded that “cleaning station” failed to denote
sufficient structure. The court did not analyze the disputed term, either on its own or in light of the case law,
dictionary definitions, and prosecution history.
34
nonetheless know that “tubular advancing station” is the collection of equipment needed to
perform the task or the place on the rig where the equipment needed to advance the tubular
members is housed. The court has not found in the record an industry dictionary, treatise,
inventor testimony, rigworker testimony, or other evidence that the meaning of “tubular
advancing station” is understood in the relevant art to denote structure. Cf. Welker Bearing, 550
F.3d at 1096B97 (stating that the “court’s analysis may well have turned out differently” had the
“artisan . . . understood [the claim] language to include a structural component”).
Transocean analogized “tubular advancing station” to a “fire station,” emphasizing that
fire stations are generally understood to connote structure. (See Docket Entry No. 91 at 122B23).
Transocean is correct, but that is because a fire station is among the places established for certain
public services, like a police station. Merriam-Webster defines a fire station as “a building
housing fire apparatus and usually firefighters.”
MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY 471. A building, of course, denotes structure. Transocean argues that a place of
assembled equipment needed to perform a certain function denotes structure because structure is
necessary to house that equipment and the space for operating it. (See Docket Entry No. 78 at
9B10; Docket Entry No. 91 at 128–29). Transocean does not cite a case holding where the
equipment needed for a certain task or operation is located or kept sufficiently denotes structure.
(See Docket Entry No. 91 at 128B29).10
The court concludes, however, that even if the three-word term “tubular advancing
station” may not sufficiently denote structure, when those words are viewed in light of the entire
disputed term, one of ordinary skill in the relevant art would understand the term to denote
10
Transocean points to a claim for a first and second “top drive station” in the ‘781 Patent as evidence that “station”
denotes sufficient structure. See ‘781 Patent, 14:56B57. But the modifier “top drive” refers to a specific type of
equipment that by itself denotes structure to a person of ordinary skill in the oil-exploration industry. See
Schlumberger Oilfield Glossary, www.glossary.oilfield.slb.com/en/Terms/t/ top_drive.aspx (defining “top drive”).
Transocean’s analogy to a top drive station is unpersuasive.
35
structure. The full term is “tubular advancing station connected to said drilling superstructure for
advancing tubular members.” ‘069 Patent, 17:23–24. The fact that the term limits “tubular
advancing station” to one that is “connected to said drilling superstructure” does denote
structure, not merely location. The “tubular advancing station” does not refer to the location for
the equipment needed for the function of advancing without denoting structure. That location
described in the claim must not only contain the equipment and the necessary work space to
access and operate it, but it must also be connected to the drilling superstructure. The court
tentatively concludes that a “tubular advancing station” connected to the drilling superstructure
sufficiently denotes structure to maintain the presumption against means-plus-function claiming.
When viewed in light of the strong presumption against applying § 112 ¶ 6 when the patentee
omits the words “means for,” see Lighting World, 382 F.3d at 1358, there is insufficient evidence
that the presumption has been rebutted. The claim is not in means-plus-function form.
Stena’s position that the claim invoked § 112 ¶ 6 is not without support. The patent
language and prosecution histories provide some support that the disputed term is properly
construed as in means-plus-function form. Claim 17 of the ‘069 Patent claims:
a first tubular advancing station connected to said drilling
superstructure for advancing tubular members . . . [and] a second
tubular advancing station connected to said drilling superstructure
for advancing tubular members simultaneously with said first
tubular advancing station to the seabed . . . .
‘069 Patent, 17:22B29. Claim 38 of the ‘071 Patent contains nearly identical language, but uses
“tubular advancing station” interchangeably with “means for advancing tubular members.” The
relevant claim language is:
a first tubular advancing station connected to said interconnected
drilling superstructure for advancing tubular members . . . and a
second tubular advancing station connected to said interconnected
36
drilling superstructure for advancing tubular members
simultaneously with said means for advancing tubular members
. . . [which] can be simultaneously conducted . . . by said second
means for advancing tubular members.
‘071 Patent, 20:11B26 (emphasis added). Both claims are about the same function—advancing
tubular members—and use the terms “tubular advancing station” and “means for advancing
tubular members” interchangeably. This supports an inference that “tubular advancing station”
is a proxy for the term “means for.”
The prosecution history of the ‘851 Patent also provides some evidence that the patentees
intended to use “tubular advancing station” and “means for” interchangeably. If, during the
prosecution history, a patentee interchangeably uses “means” with another term, that is a factor
in determining whether a means-plus-function construction applies to that term. See Lighting
World, 382 F.3d at 1362–63; Mas-Hamilton Grp. v. LaGard, Inc., 21 F. Supp. 2d 700, 724 (E.D.
Ky. 1997), aff’d, 156 F.3d 1206 (Fed. Cir. 1998). The prosecution history was important to the
Lighting World and Mas-Hamilton courts in analyzing whether the disputed claim terms were in
means-plus-function form. The Lighting World court distinguished the prosecution history of the
patent at issue with that in Mas-Hamilton. See Lighting World, 382 F.3d at 1362. In MasHamilton, the fact that the patentee had used the disputed claim term “element” interchangeably
with “means” was significant in concluding that § 112 ¶ 6 applied despite the absence of “means
for” language.
The interchangeable use militated in favor of finding that “element” and
“member” “were mere proxies for the term ‘means for.’” Lighting World, 382 F.3d at 1362
(examining Mas-Hamilton). The interchangeable use overcame the “presumption flowing from
the absence of the term ‘means for.’” Id. at 1358, 1363. The absence of such interchangeable
use in the Lighting World patent’s prosecution history led the court to maintain the presumption
against applying § 112 ¶ 6. Id. at 1363.
37
Similar to the patentees’ use of the term “element” in Mas-Hamilton, the patentees here
appear to have used the term “station” interchangeably with “means” during the patent
prosecution. In the May 1997 examiner’s interview about the ‘851 Patent’s prosecution, the
interviewer stated that certain claims would “define over” the prior art if they were “amended to
specify the simultaneous advancement of tubular members by first and second means.” (Docket
Entry No. 74, Ex. 5 at STE 896) (emphasis added). The same claims were amended in July
1997, but the patentees used the term “tubular station,” not “means,” providing some evidence
that they used “station” interchangeably with “means.” (Id, Ex. 5 at STE 903–904). Transocean
maintains that such use of the terms was “strategic.” (Docket Entry No. 78 at 10). It is unclear
why Transocean’s explanation, without further evidence, is a basis to disregard or discount this
apparent interchangeable use of the terms.
The court tentatively concludes that this use, with Stena’s other evidence, is insufficient
to rebut the strong presumption that claims not using the words “means” or “means for” are not
in means-plus-function form. See Lighting World, 382 F.3d at 1358. The claim language stating
that the “tubular advancing station” is “connected to said drilling superstructure” denotes
sufficient structure to avoid invoking § 112 ¶ 6.
The court’s tentative ruling on the construction of the disputed terms is as follows:
Court’s Construction
Disputed Term
“tubular advancing station connected to said “an assembly of equipment for advancing
drilling superstructure for advancing tubular tubular members to the seabed”
members”
This claim construction ruling is tentative. The parties may file a response, of no more
than ten pages each, limited to this point, no later than Friday, November 14, 2014.
38
C.
“Means . . . for transferring tubular assemblies.”11
Transocean’s Proposed Construction
Stena’s Proposed Construction
A means-plus-function term governed by §
112 ¶ 6.
A means-plus-function term governed by §
112 ¶ 6.
Function: transferring tubular assemblies
directly between advancing stations or
indirectly through a setback envelope.
Function: transferring tubular assemblies
on or over the drill floor level directly
between a first top drive station [means for
advancing] and a second top drive station
[means for advancing].
Structure: overhead derrick crane, rail
supported pipe handlers, or equivalent
structure.
Structure: Overhead derrick cranes or rail
supported pipe handlers within the derrick.
The parties dispute the construction of “means . . . for transferring tubular assemblies” in
claim 10 of the ‘851 Patent and claims 10 and 30 of the ‘781 Patent. The parties agree that the
term is a means-plus-function claim governed by § 112 ¶ 6. They also agree that the function is
to transfer tubular assemblies between advancing stations and that the structures corresponding
to the function include rail-supported pipe handlers and overhead cranes. (See Docket Entry No.
82–1 at 2–3). The parties disagree on two points. The first is whether the function is limited to
“direct” transfers between the two assemblies, as Stena contends, or whether the function covers
indirect transfers in which the tubular assemblies are moved from one station to another through
an intermediate storage area called a “setback envelope,” as Transocean contends. The second
dispute is whether the tubular-assembly transfers are limited to those occurring “on or above the
11
To the extent Transocean asks the court to construe “transfer” as a stand-alone term, the court declines. The
substance of the parties’ disputes does not appear to be over the word “transfer,” but rather the claims in which
“transfer” appears, for example, “means . . . for transferring tubular assemblies.” This approach appears to be
consistent with the parties’ communications relating to the claim-construction briefs. (Docket Entry No. 74, Ex. 32
(emails between counsel in which Stena proposed not asking the court to construe “transfer” as a stand-alone term,
to which Transocean agreed). Whether the court construed “transfer” as a stand-alone term would not change the
construction.
39
drill floor level,” as Stena contends, or whether they extend to transfers that are not so limited, as
Transocean contends.
1.
Whether the Claim Covers Indirect Transfers
The claim language and specification support Transocean’s construction that “means . . .
for transferring tubular assemblies” covers indirect transfers of tubular assemblies through the
intermediate-storage setback envelopes.
The claims recite a transfer of tubular assemblies
between the “first means for advancing tubular members” and the “second means for advancing
tubular members.” ‘851 Patent, 14:35–37. The claim language identifies the starting point and
ending point of the tubular assemblies’ path—the first and second means for advancing tubular
members—but does not describe what happens in between. The claims do not limit the transfer
to a direct path between the beginning and ending points. Because “claims are generally given
their broadest possible scope,” In re Rambus Inc., 694 F.3d 42, 46 (Fed. Cir. 2012), the claim
language supports Transocean’s construction that “transfer” in the disputed claims is not limited
to direct transfers.
The specification in the ‘851 Patent supports Transocean’s construction that the transfer
may be indirect as well as direct. The specification describes indirect transfers of tubular
members through the storage areas. The specification describes the process of “making up”
different members, placing them in setback envelopes, and, when needed, transferring them from
setback envelopes to the drill station. The description is as follows:
The main drilling station 160 is utilized to pick up and make up a
thirty inch jetting assembly for jetting into the seabed and twenty
six inch drilling assemblies and places them within the derrick
setback envelopes for the auxiliary station 162 to run inside of
thirty inch casing. The main rig then proceeds to makeup eighteen
and three fourths inch wellhead and stands it back in the derrick
for the twenty inch tubular casing run.
40
‘851 Patent, 8:41–48 (emphasis added).
Other parts of the specification mention indirect
transfers in which the tubular assemblies are stored in setback envelopes. ‘851 Patent, 7:28–29
(describing how each tubular handling assembly or pipe handling apparatus may “setback and
receive conduit from any of the tubular setback envelopes 170, 172, and 174”); id. at 9:8–62
(describing an auxiliary rotary station making up various sizes of tubular members, which are
stored in the setback envelopes or “derrick tubular handling envelopes” until they are transferred
and advanced by the main station); id. at 12:13–18 (describing handling assemblies to transfer
tubulars between tubular advancing stations and setback envelopes). The ‘781 Patent similarly
mentions indirect transfers. See, e.g., ‘781 Patent, 7:41–43 (“[T]he rail 168 permits the first
tubular handling assembly 164 to setback and receive conduit from any of the tubular setback
envelopes . . . .”).
A timeline in the specification describing the drilling process further supports construing
the term “means . . . for transferring tubular assemblies” to include indirect transfers. Figure 23b
of the ‘851 and ‘781 Patents is a “time line for an illustrative exploratory drilling operation
wherein a critical path of activity for a conventional drilling operation is depicted.” ‘851 Patent,
4:34–37; ‘781 Patent, 4:45–47. The timeline shows that the tubulars are first made up, then
stored in setback envelopes, and later moved to the drill station for drilling and advancement
towards the seabed. This timeline does not describe a process in which the tubular members are
transferred only directly from the first means for advancing to the second means for advancing.
Stena’s proposed construction limiting tubular-member transfers to direct transfers
contradicts the specification and the need to read a claim “in view of the specification, of which
they are a part.” Markman, 52 F.3d at 979. The specification is not only “highly relevant,” but
“[u]sually, it is dispositive; it is the single best guide to the meaning of a disputed term.”
41
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). Stena’s construction
also fails to justify construing the claim to exclude the preferred embodiment, a construction that
“‘is rarely, if ever, correct.’” Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1342 (Fed. Cir.
2001) (quoting Vitronics, 90 F.3d at 1583).
Stena does not dispute that the preferred
embodiments of the Transocean patents include indirect transfers. The specification provides
persuasive intrinsic evidence supporting Transocean’s construction.
Stena contends that indirect transfers through and including setback envelopes are not
included in the “means . . . for transferring” because the envelopes, which are necessary for
indirect transfer, are referred to in the dependent claims, not in the independent claims the court
is asked to construe. (Docket Entry No. 74 at 25–28). Claim 10 of the ‘851 Patent—the
independent claim—recites a “means . . . for transferring tubular assemblies.” ‘851 Patent,
14:32–44. Claim 11—the dependent claim—recites:
“A multi-activity drilling assembly as defined in claim 10 and
further including: a first tubular setback station positioned adjacent
to said first means for advancing tubular members; and a second
tubular setback station . . . . .”
Id. at 14:45–51. Similarly, in the ‘781 Patent, the setback envelopes are mentioned in dependent
claims 12 and 13, but not in independent claims 10 and 30. Stena argues that because the
setback envelopes were first introduced in the dependent claims and preceded by the phrase
“further including,” the envelopes (and the indirect transfers they implicate) cannot also be
covered by the independent claims. Stena reasons that “[b]ecause the setback envelopes, which
are necessary for indirect transfer, are claimed only as additional elements to the independent
claims introducing the means ‘means . . . for transferring tubular assemblies,’ direct transfer and
42
indirect transfer are distinct from one another.”
(Docket Entry No. 74 at 25 (emphasis
removed)).
Stena’s position is inconsistent with the claim-construction principle that “dependent
claims are presumed to be of narrower scope than the independent claims from which they
depend.” AK Steel Corp. v. Sollac & Ugine, 344 F.3d 1234, 1242 (Fed. Cir. 2003); see also RF
Del., Inc. v. Pac. Keystone Techs., Inc., 326 F.3d 1255, 1264 (Fed. Cir. 2003) (stating that an
independent claim is usually construed to have a greater scope than its dependent claims); cf. 35
U.S.C. § 112, ¶ 4 (2000) (“[A] claim in dependent form shall contain a reference to a claim
previously set forth and then specify a further limitation of the subject matter claimed. A claim in
dependent form shall be construed to incorporate by reference all the limitations of the claim to
which it refers.”). Under Stena’s proposed construction, the independent claims, which would
provide for indirect transfers, would be broader than the independent claims, violating the
presumption that independent claims are broader than dependent claims. See AK Steel Corp.,
344 F.3d at 1242.
The dependent claims’ use of “further limiting” does not undercut this conclusion or
make the dependent claims superfluous, as Stena contends. The independent claims describe a
general means for transferring tubular assemblies between the advancing stations.
The
independent claims do not limit transfers to direct or indirect. Consistent with the principle that
dependent claims are narrower than the independent claims, the dependent claims in the
Transocean patents further limit the independent claims by denoting the structure and location
for the structure used to facilitate the transfers, which provide for indirect transfers through
setback envelopes positioned adjacent to the top-drive stations. Stena has not cited a case in
43
which a court has found that dependent claims containing the language “further including” are
broader than the independent claims.12
The court construes the term “means . . . for transferring tubular assemblies” to include
indirect transfers.
2.
Whether the Claims Provide for Transfers Below the Drill
Floor
Stena argues that the claims cover only transfers that occur on or above the drill floor.
Transocean agrees with Stena that the tubular assemblies’ transfer must start and end at the
tubular advancing stations above the drill floor, but disputes whether the entire transfer path must
be on or above the drill floor. (Docket Entry No. 78 at 14 (“While Transocean agrees that any
transfer must start and end at the stations on the drill floor, nothing in the specification limits the
path taken by a transferred tubular to completely above the drill floor.”)).
Transocean
emphasizes that no language in the claims or specification limits the transfers to those occurring
on or above the drill floor. Stena does not point to claim or specification language expressly
excluding transfer paths that are partially below the drill floor. Stena instead argues that the
court should read this limit into the claims because “the specification only discloses transferring
above the drill floor.” (Docket Entry No. 74 at 24) (emphasis removed). Stena emphasizes that
Figure 7 of the ‘851 Patent shows the equipment mentioned in the specification corresponding to
the function of transferring tubular assemblies — rail-supported pipe handlers and overhead
cranes — as on the drill floor. See ‘851 Patent, Figure 7. Stena draws from this figure the basis
12
Stena argues that the setback envelopes are additional structure for the “multi-activity drilling assembly” and “not
the structure already found in the ‘means for transferring.’” (Docket Entry No. 74 at 27). But the setback envelopes
do appear to refer to the “means for transferring.” The independent claim describes a “drilling assembly including”
a “means . . . for transferring tubular assemblies.” ‘781 Patent, 14:33, 55–56. The references to setback envelopes
in the dependent claims relate to the drilling assembly’s “means for transferring.”
44
for reading the specification to mean that Transocean has restricted transfers to those taking
place entirely on or above the drill floor.
Figure 7 is the only support in the specification for Stena’s argument that tubular
assemblies must be transferred entirely on or above the drill floor. Stena’s attempt to restrict the
scope of the claim based on the location of the equipment in the figure is unpersuasive. There is
no claim language limiting the transfers to those entirely on or above the drill floor. The Federal
Circuit is clear that while “claims must be read in view of the specification . . . limitations from
the specification are not to be read into the claims.” Teleflex, Inc. v. Ficosa N. Am. Corp., 299
F.3d 1313, 1326 (Fed. Cir. 2002). The fact that this is a means-plus-function claim does not
change the analysis or result. Cf. Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1303 (Fed.
Cir. 1999) (reversing a district court decision reading limitations from the specification into a
means-plus-function claim).
The parties focused their arguments on whether the inventors disclaimed below-the-drill
floor transfers during patent prosecution. Stena argues vigorously and primarily that Transocean
is estopped by positions it took in the prosecution from arguing that the claimed transfers can be
partially below the drill floor. Stena emphasizes the inventors’ statements, including testimony
and declarations in prior patent-infringement trials, describing the inventions as limited to
transfers on or above the drill floor. (Docket Entry No. 74 at 29–33). Transocean argues that
Stena has inaccurately described the prosecution history and the context of the prior statements.
(Docket Entry No. 78 at 14–17).
During the patent prosecution, questions were raised about prior art, specifically, the
Maritime Hydraulics Twin RamRig. The patent office had initially rejected multiple claims in
Transocean’s patents on the basis of prior-art anticipation. The RamRig’s sales brochure showed
45
“tubular racks for the various pipes used for drilling” and “pipe handling assemblies allow[ing]
for transfer of pipes from one advancing means to the other.” (Docket Entry No. 66, Ex. 12 at
3). After the patent examiner rejected Transocean’s claims, one of the named inventors, Donald
Ray, and prosecution counsel, Bradford Kyle, met with the examiner about the RamRig
reference. The “Examiner Interview Summary Record” states, in part, that:
The distinction that applicant’s drillship allows for transfer of
tubular members between first and second drilling assemblies was
agreed to define over the . . . Maritime Hydraulics brochure.
(Docket Entry No. 74, Ex. 5 at STE919). After the interview, the claims were amended to
include a limit to a “means positioned within said derrick for transferring tubular assemblies.”
(See, e.g., id., Ex. 5 at STE 921).
Transocean argues that the examiner initially rejected the invention on the erroneous
belief that the Maritime Hydraulics Twin RamRig had disclosed pipe-handling assemblies that
could transfer pipes between advancing means. According to Transocean, the RamRig brochure
did not disclose transferring equipment.
Transocean cites to a 1999 declaration from the
inventors of the Transocean patents stating that the RamRig “does not incorporate a principal
aspect of the [Transocean] invention in that there is no method shown for transferring tubular
members between the rotary tables.” (Docket Entry No. 78, Ex. 25 ¶ 4). Transocean also relies
on the deposition of Vidar Skjelbred, a Maritime Hydraulics employee familiar with the RamRig
design. Skjelbred testified that the RamRig brochure did not identify or describe equipment
capable of transferring the large conductor pipe — up to 30 inches in diameter — above the drill
floor. (Id., Ex. 28 at 121–22). Instead, the pipe transfer shown in the RamRig brochure occurred
exclusively below the drill floor. (Id., Ex. 28 at 122).
46
Stena’s argument that the inventors disclaimed transfers below the drill floor is based on
its interpretation of the “Examiner Interview Summary Record” excerpt. Stena contends that it
is clear from the examiner’s statement and the subsequent amendments that the patentees
disclaimed below-the-drill-floor transfers. To support this argument, Stena relies heavily on
inventor Ray’s testimony in a lawsuit Transocean filed against GlobalSantaFe Corporation for
infringing the same patents at issue in this case.
In this earlier lawsuit, Ray testified that:
he interpreted the excerpt from the “Examiner Interview Summary Record” to mean that
Transocean’s “invention has the capability to transfer the tubulars between the two
workstations at the drill floor,” (Docket Entry No. 74, Ex. 10 at 195–96);
the phrase, “transfer of tubular members between first and second drilling assemblies”
means transfer “between the two rotary tables on the drill floor,” and the transfer must
“take place on the drill floor in the derrick,” (id., Ex. 10 at 268);
during the interview with the examiner, he showed the “transfer of tubulars at the drill
floor” to explain the Transocean invention in comparison to the Maritime Hydraulics
brochure, (id., Ex. 10 at 265); and
the discussion with the patent examiner “was about transferability above the drill floor,”
(id., Ex. 10 at 228).
Inventor Robert Scott testified similarly in a deposition taken in a suit Transocean filed against
Maersk Contractors USA, again asserting infringement of the patents at issue here. In his
deposition, Scott stated that the Transocean patents were distinguishable because the RamRig
transferred the tubulars below the drill floor.
Scott stated that “what was new [with the
Transocean patents] was transfer above the drill floor.” (Id., Ex. 35 at 245–46).13
13
Stena cites other trial and deposition testimony making similar points. (See Docket Entry No. 74 at 32–33). For
brevity, the court omits citations to all those excerpts but notes that they are in the record and that the court is aware
of them and has considered them.
47
Stena’s reliance on these statements is problematic because inventor testimony “cannot
be relied on to change the meaning of the claims.” Markman, 52 F.3d at 983; see also Hoechst
Celanese Corp. v. BP Chems. Ltd., 78 F.3d 1575, 1580 (Fed. Cir. 1996) (“Markman requires us
to give no deference to the testimony of the inventor about the meaning of the claims.”). Courts
recognize that “it is not unusual for there to be a significant difference between what an inventor
thinks his patented invention is and what the ultimate scope of the claims is after allowance by
the PTO.” Howmedica Osteonics Corp. v. Wright Med. Tech., Inc., 540 F.3d 1337, 1347 (Fed.
Cir. 2008) (internal quotations omitted). This is true even when the inventor testimony narrows
the claim scope. Id.
Stena argues that this principle is inapplicable because in this case, the inventors’
statements are about proceedings before the PTO and are therefore part of the intrinsic record.
(See Docket Entry No. 74 at 30 n.23). Even taking this into account, the inventors’ testimony
does not lead to the construction Stena advocates.
To show that Transocean disclaimed transfers below the drill floor, Stena must show that
Transocean’s conduct during the patent prosecution “constitute[d] a clear and unmistakable
surrender” of any transfer path below the drill floor. See Cordis Corp. v. Medtronic AVE, Inc.,
339 F.3d 1352, 1359 (Fed. Cir. 2003). In Cordis, the court held that an inventor did not clearly
and unmistakably disclaim the disputed claim scope when the inventor’s statement made in the
prosecution history, after the examiner had initially rejected the patent, was “amenable to
multiple reasonable interpretations.” Id.
The inventor statements Stena points to are “amenable to multiple reasonable
interpretations.” Id. The inventors’ statements about above-the-drill-floor transfers were in
response to questions about the specific differences between the transfer paths in the Transocean
48
patents and in the RamRig prior art. Transocean’s position that the inventors distinguished the
Transocean patents from the RamRig on the ground that the transfer in the Transocean patents
started and ended at a point above the drill floor is a reasonable interpretation of how the
inventors distinguished the RamRig.14 Though the examiner’s handwritten summary is not
particularly helpful in explaining why he changed his position, it is reasonable to infer that he
distinguished the Transocean inventions from the RamRig on the ground that the transfer in the
Transocean patents begins and ends on or above the drill floor. It is reasonable to interpret the
Transocean inventor statements to the PTO and in later testimony as saying that at least part (the
beginning and ending) of the tubular-assembly transfer occurs on or above the drill floor, as
opposed to saying that no part of the transfer could occur below the floor. Stena has not shown
that Transocean clearly and unmistakably surrendered a transfer path that, at some point, is
below the drill floor.
14
The record evidence is clear that the transfer of the casing pipe in the Maritime Hydraulics RamRig brochure
occurred exclusively below the drill floor. The deposition testimony of Vidar Skjelbred confirmed this point; he
testified that the RamRig did not have equipment capable of transferring above the drill floor the casing pipe that the
brochure pictured. (Docket Entry No. 78, Ex. 28 at 121–22).
49
The court’s ruling on the construction of the disputed claims is as follows.
Court’s Construction
Disputed Term
“means . . . for transferring tubular
assemblies”
A means-plus-function governed by § 112 ¶
6.
Function: transferring tubular assemblies
directly between advancing stations or
indirectly through a setback envelope.
Structure: overhead derrick cranes, rail
supported pipe handlers, or equivalent
structure.15
15
Stena disputes whether the structures corresponding to the function include not only rail supported pipe handlers
and overhead cranes, but also “equivalent structures.” Stena cites an unpublished case from the Western District of
Wisconsin for the proposition that the “equivalents thereof” are not part of the structures corresponding to the
function. (Docket Entry No. 74 at 33–34 (citing LG Elecs., Inc. v. Quanta Computer Inc., No. 07-cv-361, 2008 WL
4613054, at *3 (W.D. Wis. Mar. 4, 2008)). In Quanta Computer, the court declined to include “and equivalents
thereof” in the construction for the structure of a means-plus-function term on the ground that “§ 112 makes it clear
that the ‘equivalents’ of the structures disclosed in the specification are included” and because “including
‘equivalents’ in a construction conflates the issue of claim construction with an infringement analysis under the
doctrine of equivalents.” Id.
Stena’s argument appears contrary to § 112 ¶ 6, which uses the conjunctive “and” in stating that the “claim
shall be construed to cover the corresponding structure . . . described in the specification and equivalents thereof.”
See NOMOS Corp. v. BrainLab USA, Inc., 357 F.3d 1364, 1368 (Fed. Cir. 2004) (defining the means-plusfunction’s structure to include “equivalents”). The court need not resolve this issue, however, because whether
“equivalents thereof” are part of the actual claim or are considered under the doctrine of equivalents does not affect
the infringement analysis.
50
D.
Additional Tubular Transferring Terms: “assembly . . . operable to transfer tubular
assemblies” and a “tubular handling system for transferring tubular assemblies
between said first tubular setback envelope and said second tubular setback
envelope and said first top drive station and said second top drive station.”
Transocean’s Proposed Construction
Stena’s Proposed Construction
Pipe handling equipment for transporting
tubular members, such as overhead derrick
cranes or rail supported handlers.
A means-plus-function claim governed by §
112 ¶ 6.
Function: transferring tubular assemblies
on or above the drill floor level directly
between a first tubular advancing station
and a second tubular advancing station.16
Structure: Overhead derrick cranes or rail
supported pipe handlers within the derrick
The parties dispute the construction of two separate but related claims relating to tubular
transfers. The first, an “assembly . . . operable to transfer tubular assemblies,” appears in claim
17 of the ‘069 Patent. The second, a “tubular handling system for transferring tubular assemblies
between said first tubular setback envelope and said second tubular setback envelope and said
first top drive station and said second top drive station,” appears in claim 13 of the ‘781 Patent.
The principal issue is whether the terms are in means-plus-function form.
The parties’
arguments incorporate the sections of their briefs addressing whether a “tubular advancing
station connected to said drilling superstructure for advancing tubular members” was in means-
16
Stena’s proposed construction for the function of “tubular handling system for transferring tubular assemblies” is
slightly different from its proposed construction for “assembly . . . operable to transfer tubular assemblies.” Stena’s
proposed construction for “tubular handling system” includes references to setback envelopes while its construction
for “assembly . . . operable to transfer tubular assemblies” does not. Stena’s construction of the structure
corresponding to the “tubular handling system” is limited to structures “mounted on the drill floor.” (Docket Entry
No. 81–1 at 11). The distinctions between Stena’s constructions for the two terms are without a difference in light
of the court’s conclusion that the Transocean patents do not disclaim transfers occurring partially below the drill
floor.
51
plus-function form. Given the similarities between an “assembly . . . operable to transfer tubular
members” and a “tubular handling system for transferring tubular assemblies” and the fact that
they are analyzed under the same legal framework, the court discusses the terms together. The
court’s construction of both terms is—tentatively—that the terms are in means-plus-function
form. Like the court’s ruling on “tubular advancing station . . . for advancing tubular members,”
this is a tentative ruling. The parties may address the construction of these terms in their tenpage reactions to the court’s construction of “tubular advancing station . . . for advancing tubular
members,” due no later than Friday, November 14, 2014.
1.
“assembly . . . operable to transfer tubular assemblies.”
Stena asserts that the disputed claim term, “assembly . . . operable to transfer tubular
assemblies,” is properly construed as a means-plus-function limitation subject to § 112 ¶ 6. This
claim is similar to the claim addressed in the previous section, a “means . . . for transferring
tubular assemblies.” Both claims relate to transferring tubular assemblies between the advancing
stations. The parties agreed that the claim term “means . . . for transferring tubular assemblies”
was in means-plus-function form. The material difference between “means . . . for transferring
tubular assemblies,” and an “assembly . . . operable to transfer tubular assemblies” is the absence
of the word “means” in the second. Because the “assembly . . . operable to transfer tubular
assemblies” claim does not use “means” or “means for,” the presumption that the claim is not in
mean-plus-function form applies. See CCS Fitness Inc., 288 F.3d at 1369. Transocean argues
that Stena cannot overcome the presumption, contending that one of skill in the relevant art
would understand an “assembly . . . operable to transfer tubular assemblies” to denote structure.
This court tentatively finds that it does not.
52
Transocean argues that “assembly . . . operable to transfer tubular assemblies” connotes
structure because the word “assembly” is a noun. (Docket Entry No. 66 at 15 (“Stena cannot
rebut the presumption because the specification uses . . . nouns to identify structure used to move
tubular assemblies.”)). “Assembly” is a noun, but just because a word is a noun does not mean
that it denotes structure. The Federal Circuit has stated that nouns such as “mechanism,”
“element,” “device,” and “system” are generic words that do not by themselves denote structure.
See MIT, 462 F.3d at 1354 (“The generic terms ‘mechanism,’ ‘means,’ ‘element,’ and ‘device,’
typically do not connote sufficiently definite structure.”). The Federal Circuit in Lighting World
implied that the noun “assembly” does not denote structure. The court explained in detail why
an “assembly,” when modified by the word “connector,” denoted structure. Lighting World, 382
F.3d at 1361–62.
The Federal Circuit’s lengthy explanation of the effect the modifier
“connector” had on “assembly” would have been unnecessary had the word “assembly” standing
alone denoted structure.
The disputed claim “assembly . . . operable to transfer tubular
assemblies” has no language modifying “assembly” in the way that “assembly” was modified in
Lighting World. One of skill in the relevant art “would have no recourse but to turn to the . . .
specification to derive a structural connotation for” the term “assembly . . . operable to transfer
tubular assemblies.” See Welker Bearing, 550 F.3d at 1096. Stena has carried its burden of
showing that the term fails to denote structure, rebutting the presumption against means-plusfunction form.
Transocean cites Stryker Corp. v. Zimmer, Inc., No. 10-cv-1223, 2012 WL 333814 (W.D.
Mich. Feb. 1, 2012), in arguing that the word “assembly” alone denotes sufficient structure to
avoid invoking § 112 ¶ 6. The Stryker court ruled that claim terms using the word “assembly”
were not in means-plus-function form. But in Stryker, the word “assembly” did not stand alone
53
as it does in the present case. The Stryker court construed “lock assembly,” “control assembly,”
and “switch assembly,” see id. at *6–14. In these terms, the word “assembly” was modified with
other language, similar to the way “connector” modified “assembly” in Lighting World. By
contrast, an “assembly . . . operable to transfer tubular assemblies” is not modified by language
connoting structure.
Transocean also argues that the specification and prior art cited during the prosecution
history use the term “assembly” to refer to structure. (Docket Entry No. 78 at 19). Transocean
cites such terms as tripod assemblies, rotary assemblies, support assemblies, and jacking
assemblies. (Id.). Transocean’s citation to those terms is unpersuasive because those terms, like
the disputed terms in Lighting World and Stryker, modified the word “assembly” with other
language possibly connoting structure.
There is no such modifying language in the term
“assembly . . . operable to transfer tubular assemblies.”
Stena has carried its burden of showing that the claim term fails to denote structure. This
claim is distinguishable from the claim “tubular advancing station connected to said drilling
superstructure for advancing tubular members,” which this court tentatively ruled was not in
means-plus-function form.
In the “tubular advancing station” claim, the “station” was
“connected to said drilling superstructure.”
As this court noted, the fact that the tubular
advancing station was connected to the drilling superstructure, in combination with other
language, sufficiently denoted structure. In the claim “assembly . . . operable to transfer tubular
assemblies,” there is no language stating that the “assembly” is attached to the drilling
superstructure.
The court construes the claim “assembly . . . operable to transfer tubular assemblies” to
be in means-plus-function form.
Because “assembly . . . operable to transfer tubular
54
assemblies,” invokes § 112 ¶ 6, the court must identify the “function” associated with the claim
language and corresponding structure in the specification associated with that function. 35
U.S.C. § 112 ¶ 6; Welker Bearing, 550 F.3d at 1097. It is undisputed that the function is to
transfer tubular assemblies. Stena argues that the transfer is limited to direct transfers above the
drill floor, repeating the arguments it made in the section addressing the “means . . . for
transferring tubular assemblies.” (See Docket Entry No. 74 at 36). For the reasons stated earlier,
the court rejects Stena’s argument that the claim is limited to direct transfers above the drill
floor.
The structure corresponding to the function includes overhead derrick cranes, rail-
supported pipe handlers, and equivalent structure.
2.
“Tubular handling system for transferring tubular assemblies between
said first tubular setback envelope and said second tubular setback
envelope and said first top drive station and said second top drive
station.”
The parties’ arguments for the disputed claim term “tubular handling system for
transferring tubular assemblies” mirror those asserted in the briefs on the claim term “assembly .
. . operable to transfer tubular assemblies.” This absence of “means” or “means for” triggers the
presumption that the claim is not in mean-plus-function form. See CCS Fitness Inc., 288 F.3d at
1369.
The word “system” by itself does not sufficiently denote structure to avoid § 112 ¶ 6.
The dictionary defines “system” as “a regularly interacting or interdependent group of items
forming a unified whole.”
System, def. 1, MERRIAM-WEBSTER, http://www.merriam-
webster.com/ dictionary/ system (last visited September 3, 2013). “System” is thus similar to
such generic terms as “‘mechanism,’ ‘means,’ ‘element,’ and ‘device,’ [that] typically do not
connote sufficiently definite structure.” See MIT, 462 F.3d at 1354. At least one other court has
concluded that “system” is a generic term that fails to denote sufficient structure to avoid
55
invoking 112 ¶ 6. Auto. Techs. Int’l, Inc. v. Delphi Corp., No. 08-cv-11048, 2009 WL 2960698,
at *13 (E.D. Mich. Sept. 11, 2009).
The modifying words “tubular handling” do not further define the generic term “station”
to add sufficient structure to avoid means-plus-function form. The record discloses no industry
treatise or testimony from one skilled in the relevant art that a “tubular handling system” is
understood to denote structure. The claim term “tubular handling system for transferring tubular
assemblies” is in means-plus-function form.
The “tubular handling system for transferring tubular assemblies” is distinguishable from
the term “tubular advancing station connected to said drilling superstructure for advancing
tubular members,” which this court tentatively concluded was not in means-plus-function form,
because the “tubular advancing station” term included the language “connected to said drilling
superstructure.” As noted above, the language “connected to said drilling superstructure,” in
context, denoted structure. If the “tubular advancing station” was merely a location, as Stena
argued, “connected to” the drilling superstructure is superfluous verbiage. The term construed
here, “tubular handling system,” lacks such language connoting structure.
Transocean also argues that the “tubular handling system” term denotes structure because
claim 13 (in which “tubular handling system” appears) is the dependent claim of claim 10 and
“adds additional structure” to the “means for transferring tubular assemblies” of claim 10 such
that it “remov[es] the tubular handling system from the confines of Section 112 ¶ 6.” (Docket
Entry No. 66 at 15). This argument presupposes that “tubular handling system” does add
additional structure. For the reasons stated above, the claim term “tubular handling system” fails
to denote sufficient structure and therefore does not “add[] additional structure.”
56
The court tentatively rules that the claim term “tubular handling system for transferring
tubular assemblies between said first tubular setback envelope and said second tubular setback
envelope and said first top drive station and said second top drive station” is in means-plusfunction form. The function and the function’s corresponding structure mirror the function and
structure for the term “assembly . . . operable to transfer tubular assemblies.”
The court’s tentative ruling on the construction of the disputed terms is as follows:
Court’s Construction
Disputed Term
“assembly . . . operable to transfer tubular
assemblies”
A means-plus-function governed by § 112 ¶
6.
“tubular handling system for transferring
tubular assemblies between said first tubular
setback envelope and said second tubular
setback envelope and said first top drive
station and said second top drive station”
Function: transferring tubular assemblies
directly between advancing stations or
indirectly through a setback envelope.
Structure: overhead derrick cranes, rail
supported pipe handlers, or equivalent
structure.
The parties may address this tentative construction in their ten-page reactions to the
court’s construction of “tubular advancing station . . . for advancing tubular members,” due no
later than Friday, November 14, 2014.
E.
“A Well” and “the Well”
Transocean’s Proposed Construction
Stena’s Proposed Construction
Capable of performing operations on a
single well
One or more wells
The parties dispute the meaning of “a well” in the ‘851 Patent (claim 10), the ‘781 Patent
(claims 10, 30), the ‘069 Patent (claim 17), and “the well” in the ‘851 Patent (claim 10), the ‘781
57
Patent (claims 10, 30), and in the ‘069 Patent (claim 17). Transocean argues that “a well” or “the
well” means “capable of performing operations on a single well”; Stena argues the terms mean
“one or more wells.” (Docket Entry No. 82–1 at 1).
In Transocean v. GlobalSantaFe, No. 4:03-2910, the court construed the same terms in
the ‘781 Patent, ‘071 Patent,17 and ‘069 Patent. (Docket Entry No. 66, Ex. 7 at 7). The court in
that case construed not only claim 14 of the ‘071 Patent, but also the other disputed claims
containing “a well” and “the well.” Claim 14 recited a:
multi-activity drilling assembly . . . for conducting drilling
operations . . . for a single well, said multi-activity drilling
assembly including:
an interconnected superstructure operable to be
mounted upon a drilling deck for simultaneously
supporting drilling operations for a well and
operations auxiliary to drilling operations for a well.
‘071 Patent, 15:21–29 (emphasis added). The term “the well” appeared later in the claim,
referring back to “a well.” Id. at 15:37, 40. GlobalSantaFe argued, as Transocean does now, that
“a well” and “the well” were “expressly limited to . . . a single well.” (Docket Entry No. 66, Ex.
7 at 7 (internal quotations marks omitted)). Transocean argued then, as Stena does now, that the
term was not limited to a single well.
Id.
Transocean’s position has changed to what
GlobalSantaFe argued earlier, and Stena is taking the position Transocean took earlier.
In arguing in the present case that “a well” and “the well” should both be construed to
mean “capable of performing operations on a single well,” Transocean fails to account for the
claim-construction rule that indefinite articles such as “a” or “an” mean “one or more.” The
Federal Circuit has repeatedly stated that, “as a general rule, the words ‘a’ or ‘an’ in a patent
17
Transocean does not assert in this litigation that Stena infringed the ‘071 Patent.
58
claim carry the meaning of ‘one or more.’” TiVo, Inc. v. EchoStar Commc’ns Corp., 516 F.3d
1290, 1303 (Fed. Cir. 2008) (quoting Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338,
1342 (Fed. Cir. 2008)). This “is particularly true when those words are used in combination with
the open-ended antecedent ‘comprising.’”18 Id. “The exceptions to this rule are extremely
limited: a patentee must evince a clear intent to limit ‘a’ or ‘an’ to ‘one.’” Baldwin Graphic Sys.,
Inc., 512 F.3d at 1342 (internal quotation marks and citation omitted). “An exception to the
general rule arises only ‘where the language of the claims themselves, the specification, or the
prosecution history necessitate a departure from the rule.’”
01 Communique Lab., Inc. v.
LogMeIn, Inc., 687 F.3d 1292, 1297 (Fed. Cir. 2012) (quoting Baldwin Graphic Sys., 512 F.3d at
1342–43). “The subsequent use of definite articles ‘the’ or ‘said’ in a claim to refer back to the
same claim term does not change the general plural rule, but simply reinvokes that non-singular
meaning.” Baldwin Graphic Sys., 512 F.3d at 1342.
In the GlobalSantaFe case, the exception applied to claim 14 of the ‘071 Patent because
before using the terms “including,” “a well,” and “the well,” the claim used the term “single
well.” The district court carefully reviewed the patent language and held that the term “single
well” limited the following uses of “a well” and “the well” because they referred back to “single
well.” (Docket Entry No. 66, Ex. 7 at 9). The court rejected Transocean’s proposed construction
that “a well” and “the well” could mean “one or more wells.” (Id., Ex. 7 at 10).19
In the Maersk case, No. 07-cv-2392, Transocean alleged infringement of the ‘781, ‘071,
‘069, and ‘851 Patents. The parties asked the court to construe “single well,” “a wellhole,” and
18
The term “including” is synonymous with “comprising,” and its use triggers the same rule. See Nazomi
Commc’ns, Inc. v. Arm Holdings, PLC, 403 F.3d 1364, 1370 (Fed. Cir. 2005); Mars, Inc. v. H.J. Heinz Co., 377
F.3d 1369, 1375 (Fed. Cir. 2004).
19
The court applied its analysis of claim 14 of the ‘071 Patent to the other disputed claims, stating that claim 14
“exemplified” the other disputed claims. (Docket Entry No. 66, Ex. 7 at 8–10).
59
“the wellhole.” (No. 07-cv-2392, Docket Entry No. 22, Ex. A at 6). Transocean argued that in
the context of apparatus claims, the terms meant “capable of performing operations on a single
well,” and in the context of method claims, “operations on a single well.” (Id.). Maersk argued
for the limited construction Transocean advocates here, that the terms meant “all activity or
structure of the claim can be conducted on only one wellhole.” (Id.). The court ruled, without
explanation, that “the apparatus must be capable of operations on ‘a’ well and on other auxiliary
operations related to the well–––that could ‘include’ one or more wells.” (No. 08-cv-3287,
Docket Entry No. 66, Ex. 8 at 22). The absence of any explanation makes this opinion unhelpful
and unpersuasive.
In this case, the general rule in Baldwin Graphic and TiVo applies to the term “a well.”
The analysis begins with the construction that “a well” means one or more wells. In this case,
unlike in GlobalSantaFe, nothing in the claim language or the specification “necessitate[s] a
departure from the rule.’”
Baldwin Graphic Sys., 512 F.3d at 1343.
In contrast to
GlobalSanteFe, in which the use of the term “single well” before “a well” and “the well” meant
that the same terms after the transitional phrase “including” were limited by the earlier use of
“single well,” there is no basis here to deviate from the usual construction rule.
The term
“single well” does not appear in the disputed claims. In the ‘851 Patent, the term “single well”
does not appear once; in the ‘781 and ‘069 Patents, the term does appear, but not in the disputed
claims. The fact that the limiting term, “single well,” was not included in the disputed claims,
but was included in other claims, is persuasive evidence that the inventors used the term “single
well” to select when the claims would be limited to a single well and when they would not.
The inclusion of the term “the well” in the claims does not lead to a construction that “a
well” is a single well. The term “the well” is “an anaphoric phrase that merely refers back to the
60
initial antecedent phrase.” Creative Internet Adver. Corp. v. YahooA, Inc., 476 F. App’x 724,
735 (Fed. Cir. 2011); see also Baldwin Graphic Sys., 512 F.3d at 1343 (“Because the initial
phrase carries no definitive numerosity, the anaphoric phrases do not alter that meaning in the
slightest.”).
Multiple parts of the specification support Stena’s construction that “a well” and “the
well” mean “one or more wells.” The ‘851 Patent specification contemplates drilling activity in
which multiple wells are worked on at the same time. See ‘851 Patent, 3:33–36 (“It is a further
object of the invention to provide a novel method and apparatus for deep water field
development drilling or work over remedial activity where multiple wells may be worked on
simultaneously from a single derrick.”); id. at 11:51–56 (“Developmental drilling actively may
be required which would involve twenty or more wells. In this event, the subject invention can
advantageously conduct multiple well developmental drilling activity, or work over activity,
simultaneously on multiple wells . . . .”).20
Transocean has not met its burden of showing that the inventors “evince[d] a clear intent
to limit ‘a’ . . . to ‘one.’” Baldwin Graphic, 512 F.3d at 1342. The court’s ruling on the
construction of the disputed claims is as follows.
Court’s Construction
Disputed Terms
“one or more wells”
“a well” and “the well”
20
These references to simultaneous drilling pertain to developmental drilling. The developmental drilling phase
occurs “after exploration has proven successful, and before full-scale production.” SCHLUMBERGER, Oilfield
Glossary, www.glossary.oilfield.slb.com/en/Terms/d/development (last visited October 23, 2014).
61
F.
“Drilling Operations” and “Drilling Operations Auxiliary to Said Drilling
Operations”
Transocean’s Proposed Construction
Stena’s Proposed Construction
“drilling operations,” “drilling activity”
“operations required to construct a well”
Indefinite
“auxiliary drilling activity,” “drilling operations auxiliary to said drilling operations,”
“operations auxiliary to drilling operations,” “operations . . . auxiliary to said drilling
operations”
“operations removed from the critical path
Indefinite
for drilling a well”
The claim term “drilling operations” is found in claim 10 of the ‘851 Patent, claims 10,
11, and 30 of the ’781 Patent, and claim 17 of the ‘069 Patent. Transocean asks this court to
construe “drilling operations” to have the same meaning as “drilling activity.”21 The parties also
ask the court to construe the term “drilling operations auxiliary to said drilling operations,”
which appears in claim 10 of the ‘851 Patent, claim 30 of the ‘781 Patent, and claim 17 of the
‘069 Patent. Transocean argues that the terms “auxiliary drilling activity,” “operations auxiliary
to drilling operations,” and “operations . . . auxiliary to said drilling operations” should have the
same meaning as “drilling operations auxiliary to said drilling operations.”22
Transocean argues that “drilling operations” and “drilling activity” have the same
meaning because the patents use the terms interchangeably. Stena contends that Transocean
offers no support for this argument. (Docket Entry No. 74 at 44). A review of the patents shows
21
The term “drilling activity” is found in claim 10 of the ‘851 Patent; claims 10 and 30 of the ‘781 Patent; and
claim 17 of the ‘069 Patent.
22
The claim term “auxiliary drilling activity” appears in claim 10 of the ‘851 Patent; claims 10 and 30 of the ‘781
patent; and claim 17 of the ‘069 patent. The term “operations auxiliary to drilling operations” appears in claim 10 of
the ‘851 Patent; claims 10 and 30 of the ‘781 Patent; and claim 17 of the ‘069 Patent. The term “operations . . .
auxiliary to said drilling operations” appear in claims 10 and 11 of the ‘781 Patent.
62
that the terms are used interchangeably.23 The terms “drilling operations” and “drilling activity”
are construed as having the same meaning, and for simplicity, the term “drilling operations” is
used to cover both. For similar reasons, the term “auxiliary drilling activity” covers “drilling
operations auxiliary to said drilling operations,” “operations auxiliary to drilling operations,” and
“operations . . . auxiliary to said drilling operations.”
Stena argues that the terms “drilling operations” and “auxiliary drilling activity” are
indefinite.
Transocean distinguishes between “drilling operations” and “auxiliary drilling
activity” by construing “drilling operations” as those on the “critical path” and “auxiliary drilling
activity” as those off the critical path. Stena argues that one of ordinary skill in the art cannot
differentiate which operations are on the critical path and which operations are off. (Docket
Entry No. 74 at 42–48). Transocean maintains that the terms are sufficiently definite that one of
ordinary skill in the relevant art would be able to objectively identify whether and when
particular drilling operations are on or off the critical path. (Docket Entry No. 78 at 20–21).
1.
The Applicable Law on Indefiniteness
Under 35 U.S.C. § 112, a patent specification must “conclude with one or more claims
particularly pointing out and distinctly claiming the subject matter which the applicant regards as
[the] invention.” 35 U.S.C. § 112 ¶ 2. “[A] patent is invalid for indefiniteness if its claims, read
in light of the specification delineating the patent, and the prosecution history, fail to inform,
23
For example, the patents use “drilling operations” and “operations auxiliary to said drilling operations” to address
the same methods and apparatuses as “drilling activity” and “auxiliary drilling activity.” Nothing from the claims or
specification suggests that “drilling operations” and “drilling activity” have different meanings. See, e.g., ‘069
Patent, 17:13–37 (“A multi-activity drilling assembly . . . for conducting drilling operations . . . including: a drilling
superstructure operable to be mounted upon a drilling deck for simultaneously supporting drilling operations for a
well and operations auxiliary to drilling operations for the well . . . and an assembly . . . to facilitate . . . drilling
operations auxiliary to said drilling operations, wherein drilling activity can be conducted for the well from said
drilling superstructure . . . and auxiliary drilling activity can be simultaneously conducted for the well from said
drilling superstructure . . . .”) (emphasis added); ‘851 Patent, 3:58-51 (“simultaneously auxiliary drilling and/or
related activity can be conducted within the same derrick”); 4:56–57 (“simultaneously operations auxiliary to
primary tubular operations”); 6:65–66 (“operations auxiliary to drilling operations”); 3:56–57 (“operations auxiliary
to the primary drilling”); 12:23–24 (“auxiliary operations can be simultaneously conducted”).
63
with reasonable certainty, those skilled in the art about the scope of the invention.” Nautilus,
Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2124 (2014). In Nautilus, the Supreme Court
stated that indefiniteness under § 112 requires a “delicate balance.”
Id. at 2129 (internal
quotations omitted). “On the one hand, the definiteness requirement must take into account the
inherent limitations of language. Some modicum of uncertainty, the Court has recognized, is the
‘price of ensuring the appropriate incentives for innovation.’” Id. (internal citation omitted)
(quoting Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 732 (2002)).
“Otherwise there would be [a] zone of uncertainty which enterprise and experimentation may
enter only at the risk of infringement claims.” Id. (alteration in the original; internal quotations
omitted).
The definiteness requirement “mandates clarity, while recognizing that absolute
precision is unattainable.” Id.
The party arguing indefiniteness must show it by clear and convincing evidence.
Microsoft Corp. v. i4i Ltd. P’ship, 131 S. Ct. 2238, 2242 (2011)); Teva Pharms. USA, Inc. v.
Sandoz, Inc., 723 F.3d 1363, 1368 (Fed. Cir. 2013). “[C]laims are not indefinite merely because
they present a difficult task of claim construction.” Halliburton Energy Servs., Inc. v. M-I LLC,
514 F.3d 1244, 1249 (Fed. Cir. 2008). A claim is not indefinite “even though the task may be
formidable and the conclusion may be one over which reasonable persons will disagree.” Id.
(quoting Exxon Research & Eng’g Co. v. United States, 265 F.3d 1371, 1375 (Fed. Cir. 2001).
“Proof of indefiniteness requires such an exacting standard because claim construction often
poses a difficult task over which expert witnesses, trial courts, and even the judges of [the
Federal Circuit] may disagree.” Id. (internal quotation marks omitted).
64
2.
Whether the Disputed Claims are Indefinite
Stena argues that the claims are indefinite because there is no objective way to
distinguish between drilling operations and auxiliary drilling activity based on which is on or off
the critical path. Stena argues that deciding which operations are on the critical path and which
are not is left to the subjective understanding of each individual well operator. (Docket Entry
No. 74 at 44). “In the absence of a workable objective standard,” a claim that is “completely
dependent on a person’s subjective opinion” is indefinite. See Datamize LLC v. Plumtree
Software, Inc., 417 F.3d 1342, 1350 (Fed. Cir. 2005) (holding that the term “aesthetically
pleasing” made the patent claims indefinite because the meaning was left to each individual’s
subjective understanding).
The leading case for determining indefiniteness is Orthokinetics Inc. v. Safety Travel
Chairs, Inc., 806 F.2d 1565 (Fed. Cir. 1986). The patent in Orthokinetics involved pediatric
wheelchairs designed to make it easier to load and unload a child from a vehicle. Id. at 1568.
The disputed claim described a wheelchair “wherein said front leg portion is so dimensioned as
to be insertable through the space between the doorframe of an automobile and one of the seats
thereof.”
Id. (emphasis added).
The issue was whether the term “so dimensioned” was
indefinite. The Federal Circuit held that the term was sufficiently definite, reasoning that “one of
ordinary skill in the art would easily have been able to determine the appropriate dimensions” by
looking at the space available in the automobile and the size of the chair. Id. at 1576. While the
term “so dimensioned” could have varying meanings based on automobile shapes and sizes, the
meaning was objectively identifiable to one skilled in the art. “The phrase ‘so dimensioned’
[was] as accurate as the subject matter permits, automobiles being of various sizes.” Id.
65
Stena has not carried its burden of demonstrating by clear and convincing evidence that
the disputed terms “fail to inform, with reasonable certainty, those skilled in the art” whether a
drilling operation is “auxiliary.” Nautilus, 134 S. Ct. at 2124. Transocean submitted inventor
testimony and an expert report stating that one skilled in the relevant art understands what is on
the critical path and what is not, enabling that person to distinguish between drilling operations
and auxiliary drilling activity.
Inventor Robert Hermann testified in the Maersk trial and provided examples of how one
skilled in the art would determine whether a given drilling operation is on the critical path. He
testified that if it took ten days to drill a well’s top hole but only seven days to “run” and lower
the blowout preventer, the top-hole drilling would be on the critical path and the blowout
preventer would be off the critical path. (Docket Entry No. 78, Ex. 42 at 543). He also
explained how an operation on the critical path could switch to being off, and vice-versa, at
different stages of an operations sequence, depending on the time it took to complete that
operation. (Id., Ex. 42 at 541). To illustrate this point, Hermann pointed to the hypothetical
drilling schedule provided in Figure 23b of the patents. Under that schedule, the 44 hours
allotted to “running” 20-inch pipe was off the critical path, while the running of the blowout
preventer was on the critical path. According to Hermann, if the time to run the 20-inch pipe
significantly exceeded 44 hours, the pipe-running operation would change from being off the
critical path to on the critical path. (Id., Ex. 42 at 544).
Hermann testified that switching
operations from on to off the critical path, or the other way around, is a “basic element of
scheduling,” and that he “never had problems with people understanding” it. (Id.).
Transocean also submitted the 2009 expert report of Calvin Barnhill to support the
contention that “critical path” is understood in the relevant art. (Docket Entry No. 78, Ex. 41).
66
Barnhill’s report stated that “critical path” is not indefinite and that “one of ordinary skill in the
art would have no problem understanding that ‘critical path’ describes how wells are planned and
drilled.” (Id., Ex. 41 at 2). Barnhill noted that experts in the litigation between Transocean and
GlobalSantaFe “did not express problems understanding” either critical path or auxiliary drilling
activity. (Id.).
Hermann’s testimony and Barnhill’s expert report support Transocean’s contention that
one skilled in the relevant art can objectively distinguish between drilling operations and
auxiliary drilling activity based on which operation or activity is on the critical path. Hermann’s
testimony in particular shows that a drill operator using a multi-activity drilling rig can configure
and reconfigure the sequence and schedule of drilling operations so as to change what is on the
critical path.
These changes do not, however, prevent a person of skill in the art from
understanding, with reasonable certainty, whether a given operation is on the critical path. See
Nautilus, 134 S. Ct. at 2124. The determination is not “completely dependent on a person’s
subjective opinion.” See Datamize, 417 F.3d at 1350.
Dictionary definitions of “critical path” are consistent with the inventor testimony and
expert report Transocean cited. One dictionary defines “critical path” as “the order in which a
series of operations should be done so that a project can be finished as quickly as possible and
for the lowest cost possible.” Critical Path, MACMILLAN, http://www.macmillandictionary.com/
dictionary/american/critical-path (last visited October 24, 2014). Another definition is a “path . .
. that connects the tasks in a process which are required to be completed for subsequent work to
start or which take the greatest amount of time for completion and that provides an estimate of
the duration of the entire process.” Critical Path, MERRIAM-WEBSTER, http://www.merriamwebster.com/dictionary/critical path (last visited October 24, 2014).
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Though neither party cited patent or oil-industry treatises expressly defining “critical
path,” the term has an established project-management meaning that applies across disciplines
and industries. This meaning is consistent with the dictionary definitions listed above. For
example, Microsoft defines “critical path” as the “series of tasks that must be completed on
schedule for a project to finish on schedule” and provides software enabling the user to diagram
the critical path. Show the critical path, https://office.microsoft.com/en-us/project-help/showthe-critical-path-HP045300871.aspx (last visited October 20, 2014). An article from the online
trade publication TechRepublic stated that the “critical path” “is simply all the tasks that
determine the end date in your project schedule. If one of those tasks is late by one day, then
your project end date will be extended by one day.” Andrew Makar, Why Critical Path is
Critical to Project Management, TECHREPUBLIC, http://www.techrepublic.com/blog/ techdecision-maker/why-critical-path-is-critical-to-project-management (last visited October 22,
2014).
These definitions of “critical path” are consistent with Hermann’s testimony and
Barnhill’s report and support Transocean’s construction.24 Because the term “critical path,” as
applied to drilling operations, is capable of understanding by one skilled in the relevant art, it is
distinguishable from the inherently subjective term “aesthetically pleasing” in Datamize, which
the Federal Circuit held was indefinite. See Datamize, 417 F.3d at 1350.
Stena argues that inventor testimony suggests that “critical path” and “auxiliary drilling
activity” are ambiguous. Stena argues that Barnhill’s deposition testimony in the Maersk case
24
The court notes that Ray’s depositions from the GlobalSantaFe litigation and Maersk litigation are consistent
with the dictionary definitions. Ray testified in the GlobalSantaFe litigation that critical path “is a commonly used
tool in the construction business.” (Transocean v. Pacific Drilling S.A., No. 4:13-cv-1088, Docket Entry No. 26, Ex.
13 at 49–50). In the Maersk litigation, he testified that the term is “generally accepted in projects.” (Id., Ex. 9 at
91). These deposition excerpts do not appear to be part of this case’s record. While they are in court’s records, they
are not relied on in reaching the construction.
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shows that the meaning of “auxiliary drilling activity” is subjective and left to each operator’s
understanding. (Docket Entry No. 81 at 19). Barnhill testified that the operator does not “know
exactly what’s auxiliary and what’s not auxiliary until [the operator is] actually planning the
well.” (Id., Ex. 4 at 126). But Barnhill’s testimony does not mean that “auxiliary drilling
activity” lacks objective meaning. Instead, his testimony recognizes that although the specific
drilling operations that are on or off the critical path at a given time can change, the operator
understands the term meaning and can objectively identify corresponding operations.
The fact that the operator may not know precisely what operations are auxiliary (off the
critical path) until the drilling schedule or sequence has been planned or completed does not
mean that one skilled in the art cannot objectively identify the critical path, drilling operations,
and auxiliary drilling activity. Stena has not cited testimony that an artisan cannot objectively
determine the critical path or what operations comprise it. Rather, the testimony stated that the
artisan may not be able to make such a determination until the drilling schedule or sequence is
planned or completed. Like the patent in Orthokinects, in which the term “so dimensioned”
could not be determined until the space in the automobile was known, what is on the critical path
may not be known until the drilling operations schedule and sequence are known.
See
Orthokinetics, 806 F.3d at 1576. Transocean has provided evidence that once the schedule or
sequence is in place or completed, one skilled in the relevant art will objectively understand what
drilling operations are on and off the critical path. (See Docket Entry No. 78, Ex. 42 at 544,
Hermann Testimony). Transocean has presented evidence that one of ordinary skill in the
relevant art can objectively discern what are drilling operations and what are auxiliary drilling
activities.
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Stena also submitted testimony from inventor Scott that well operators may disagree on
what activities are on or off the critical path. (Docket Entry No. 81, Ex. 3 at 65). Scott testified
that “many operators have different ideas” and “major operators have different ways of looking
at” whether or not a particular activity is on the critical path, depending on their own internal
requirements. (Id., Ex. 3 at 65–66). The testimony is consistent with the other evidence that
what is on or off the critical path can change depending on the specific drilling activities, their
schedules, and their relative sequences. And even if well operators may disagree about whether
a particular operation is on or off the critical path, the possibility of such a disagreement does not
mean that the claim is invalid for indefiniteness. The Federal Circuit is clear that a claim is not
indefinite “even though [construing the term] may be formidable and the conclusion may be one
over which reasonable persons will disagree.” Halliburton, 514 F.3d at 1249 (quoting Exxon
Research & Eng’g., 265 F.3d at 1375). The testimony Stena cited does not prove by clear and
convincing evidence that understanding the term “critical path” or what activities may be on or
off the path at a particular time is “completely dependent on a person’s subjective opinion,” as
“aesthetically pleasing” was in Datamize, 417 F.3d at 1350.25
Stena also argues that the specification and one of the patent’s figures inconsistently
describe whether the operations shown—running the blowout preventer and riser pipe—were on
the critical path. Stena compares Figure 23b, showing the blowout preventer and riser operations
on the critical path, with language in the specification stating that the invention “enables” the
operator to move these operations off the critical path.
25
See ‘851 Patent, 12:25–27.
The
Stena points to inventor Ray’s deposition in Transocean v. Maersk, in which he stated that auxiliary drilling
activity could be on the critical path. Stena argues that this is inconsistent with Transocean’s proposed construction
of auxiliary drilling activity as those removed from the critical path. (Docket Entry No. 74 at 44). Ray’s testimony
appears to contradict Transocean’s construction. But Ray’s statement, when viewed in light of the other evidence,
does not constitute clear and convincing evidence that the claims are indefinite.
70
specification and Figure 23b are not inconsistent with each other or with definiteness. Figure
23b is an “illustrative” timeline describing a drilling schedule and critical path. ‘851 Patent,
4:35. The language from the specification states only that the blowout preventer and riser can be
moved off the critical path. The language in the specification does not require that all such
activities be on, or off, the critical path at all times. As noted, the operations on the critical path
can change depending on the drilling schedule or sequence. There is no inconsistency.
The record supports Transocean’s argument that a person skilled in the relevant art can
determine the critical path and objectively differentiate between drilling operations and auxiliary
drilling activity. The evidence that Stena cites does not prove by clear and convincing evidence
that one skilled in the relevant art would be unable to make this determination. The disputed
claims are not invalid for lack of definiteness.
The court’s construction of the disputed terms is as follows:
Court’s Construction
Disputed Term
“drilling operations,” “drilling activity”
“operations required to construct a well”
“auxiliary drilling activity,” “drilling
operations auxiliary to said drilling
operations,” “operations auxiliary to
drilling operations,” “operations . . .
auxiliary to said drilling operations”
“operations removed from the critical path
for drilling a well”
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IV.
Conclusion
The disputed terms are construed as follows:
Disputed Term
“a derrick”
(‘781 Patent, claim 10)
Court’s Construction
“a single structure mounted upon a drilling
deck that supports the load of drilling
operations”
“a drilling superstructure”
(‘851 Patent, claims 10, 12; ‘781 Patent, claim
30; ‘069 Patent, claims 17, 19)
“tubular advancing station connected to
said drilling superstructure for advancing “an assembly of equipment capable of
advancing tubular members to the seabed”
tubular members”
(‘069 Patent, claim 17)
A means-plus-function governed by § 112
¶ 6.
Function: transferring tubular assemblies
“means . . . for transferring tubular
directly between advancing stations or
assemblies”
(‘851 Patent, claim 10; ‘781 Patent, claims 10, indirectly through a setback envelope.
30)
Structure:
overhead derrick cranes, rail
supported pipe handlers, or equivalent
structure.
A means-plus-function governed by § 112
¶ 6.
Function: transferring tubular assemblies
“assembly . . . operable to transfer tubular
directly between advancing stations or
assemblies”)
indirectly through a setback envelope.
(‘069 Patent, claim 17)
Structure:
supported
structure.
72
overhead derrick cranes, rail
pipe handlers, or equivalent
A means-plus-function governed by § 112
¶ 6.
“tubular handling system for transferring
tubular assemblies between said first
Function: transferring tubular assemblies
tubular setback envelope and said second
tubular setback envelope and said first top directly between advancing stations or
drive station and said second top drive indirectly through a setback envelope.
station”
(‘781 Patent, claim 13)
Structure:
overhead derrick cranes, rail
supported pipe handlers, or equivalent
structure.
a “well”
(‘851 Patent, claim 10; ‘781 Patent, claims 10,
30; ‘069 Patent, claim 17)
“one or more wells”
“the well”
(‘851 Patent, claim 10; ‘781 Patent, claims 10,
30; ‘069 Patent, claim 17)
“drilling operations”
(‘851 Patent, claim 10; ‘781 Patent, claims
10–11, 30; ‘069 Patent, claim 17)
“operations required to construct a well”
“drilling activity”
(‘851 Patent, claim 10; ‘781 Patent, claims 10,
30; ‘069 Patent, claim 17)
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“auxiliary drilling activity”
(‘851 Patent, claim 10; ‘781 Patent, claim 30;
‘069 Patent, claim 17)
“drilling operations auxiliary to said
drilling operations”
(‘851 Patent, claim 10; ‘781 Patent, claims 30,
30; ‘069 Patent, claim 17)
“operations removed from the critical path for
drilling a well”
“operations
auxiliary
to
drilling
operations”
(‘851 Patent, claim 10; ‘781 Patent, claims 10,
30; ‘069 Patent, claim 17)
“operations . . . auxiliary to said drilling
operations”
(‘781 Patent, claims 10–11)
The court’s construction of “tubular advancing station connected to said drilling
superstructure for advancing tubular members,” “assembly . . . operable to transfer tubular
assemblies,” and “tubular handling system for transferring tubular assemblies between said first
tubular setback envelope and said second tubular setback envelope and said first top drive station
and said second top drive station” are tentative. The parties may file reactions, no longer than
ten pages each side, addressing the tentative rulings, due no later than Friday, November 14,
2014.
SIGNED on October 27, 2014, at Houston, Texas.
______________________________________
Lee H. Rosenthal
United States District Judge
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