`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`NATIONAL OILWELL DHT, L.P.
`
`
`
`Plaintiff,
`
`v.
`
`
`FLOTEK INDUSTRIES, INC.
`
`
`
` Defendant.
`
`
`
`
`
`
`
`
`CASE NO. 2:14-cv-01056-JRG-RSP
`
`
`JURY DEMANDED
`
`
`
`
`For its complaint against Flotek Industries, Inc. (“Flotek”), plaintiff National Oilwell DHT,
`
`AMENDED COMPLAINT
`
`L.P, (“NOV”) alleges:
`
`PARTIES
`
`1.
`
`NOV is a Delaware limited partnership with its principal place of business in
`
`Houston, Texas.
`
`2.
`
`Flotek is a Delaware corporation with a place of business at 2930 West Sam Houston
`
`Parkway North, #300, Houston, TX.
`
`
`
`3.
`
`4.
`
`NATURE OF ACTION, JURISDICTION AND VENUE
`
`This is an action for patent infringement under the Patent Act, 35 U.S.C. § 1 et seq.
`
`This Court has subject matter jurisdiction under 28 U.S.C. §1331 (Federal Question)
`
`and §1338 (Patents).
`
`5.
`
`Venue is proper under 28 U.S.C. §§ 1391 and 1400 because, among other things,
`
`Flotek conducts business in this district, and has engaged in acts of infringement in this district.
`
`
`
`
`
`Page 1 of 6
`
`Flotek
`Exhibit 1014
`
`
`
`Case 2:14-cv-01056-JRG-RSP Document 18 Filed 03/04/15 Page 2 of 6 PageID #: 64
`
`COUNT 1
`
`INFRINGEMENT OF U.S. Patent No. 6,508,317
`
`6.
`
`NOV is the owner of U.S. Patent No. 6,508,317 issued January 21, 2003 (“the ’317
`
`Patent”), which was duly and legally issued. The ’317 Patent is entitled “Downhole Apparatus and
`
`Method of Use.” A true and correct copy of the ’317 Patent is attached as Exhibit A.
`
`7.
`
` Flotek has infringed and continues to infringe the ’317 patent, both directly and
`
`indirectly. The infringing acts of Flotek include at least the manufacture, use, sale, lease and or offer
`
`for sale or lease of an infringing downhole flow pulsing apparatus, for example the Flotek
`
`STEMULATOR vibration tool.
`
`8.
`
`Flotek has engaged in contributory infringement of the ‘317 Patent by offering
`
`products, such as the STEMULATOR vibration tool, that directly infringe claims in the ‘317 Patent
`
`and that have no substantial non-infringing uses.
`
`9.
`
`Flotek has engaged in induced infringement of the ‘317 Patent by actively and
`
`intentionally inducing others to use products, such as the STEMULATOR vibration tool, that
`
`directly infringe claims in the ‘317 Patent. According to statements made by Flotek in the YouTube
`
`video posted at https://www.youtubXXe.com/watch?v=HHYLLZ4cRWc Flotek has induced
`
`unidentified third parties to use the infringing STEMULATOR “across multiple states in various
`
`plays around the country, from Mid-Continent and Rockies to the Northeast, down south to Texas,
`
`to the West Texas Permian.” In the video, Flotek identified these third parties generically as “the
`
`largest operators in the industry” and specifically represented that the infringing product
`
`STEMULATOR has been used by third parties Chesapeake Energy; Devon; bhbbilliton; Hess;
`
`Anadarko; Newfield; Oxy and Petrohawk.
`
`10.
`
`At the time of its actions of induced infringement, Flotek was aware of the ‘317
`
`Patent and was aware that the acts it was inducing constituted infringement. The allegations in this
`
`Page 2 of 6
`
`Flotek
`Exhibit 1014
`
`
`
`Case 2:14-cv-01056-JRG-RSP Document 18 Filed 03/04/15 Page 3 of 6 PageID #: 65
`
`paragraph have evidentiary support and will likely have further evidentiary support after a reasonable
`
`opportunity for discovery.
`
`11.
`
`12.
`
`Flotek has been aware of the ’317 patent at least as early as February 7, 2013.
`
`Flotek’s acts of infringement have caused damage to Plaintiff and Plaintiff is entitled
`
`to recover the damages. Flotek’s infringement of Plaintiff’s rights under the ’317 patent will
`
`continue to damage Plaintiff’s business, causing irreparable harm, for which there is no adequate
`
`remedy at law, unless Flotek is enjoined by this Court.
`
`
`
`COUNT 2
`
`INFRINGEMENT OF U.S. Patent No. 6,431,294
`
`13.
`
`NOV is the owner of U.S. Patent No. 6,431,294 issued August 13, 2002 (“the ’294
`
`Patent”), which was duly and legally issued. The ’294 Patent is entitled “Percussive Tool.” A true
`
`and correct copy of the ’294 Patent is attached as Exhibit B.
`
`14.
`
` Flotek has infringed and continues to infringe the ’294 patent, both directly and
`
`indirectly. The infringing acts of Flotek include at least the manufacture, use, sale, lease and or offer
`
`for sale or lease of infringing downhole flow pulsing apparatus, for example the Flotek
`
`STEMULATOR vibration tool.
`
`15.
`
`Flotek has engaged in contributory infringement of the ‘294 Patent by offering
`
`products, such as the STEMULATOR vibrator tool that directly infringe claims in the ‘317 Patent
`
`and that have no substantial non-infringing uses.
`
`16.
`
`Flotek has engaged in induced infringement of the ‘294 Patent by actively and
`
`intentionally inducing others to use products, such as the STEMULATOR vibration tool, that
`
`directly infringe claims in the ‘294 Patent. According to statements made by Flotek in the YouTube
`
`video posted at https://www.youtubXXe.com/watch?v=HHYLLZ4cRWc Flotek has induced
`
`Page 3 of 6
`
`Flotek
`Exhibit 1014
`
`
`
`Case 2:14-cv-01056-JRG-RSP Document 18 Filed 03/04/15 Page 4 of 6 PageID #: 66
`
`unidentified third parties to use the infringing STEMULATOR “across multiple states in various
`
`plays around the country, from Mid-Continent and Rockies to the Northeast, down south to Texas,
`
`to the West Texas Permian.” In the video, Flotek identified these third parties generically as “the
`
`largest operators in the industry” and specifically represented that the infringing product
`
`STEMULATOR has been used by third parties Chesapeake Energy; Devon; bhbbilliton; Hess;
`
`Anadarko; Newfield; Oxy and Petrohawk.
`
`17.
`
`At the time of its actions of induced infringement, Flotek was aware of the ‘294
`
`Patent and was aware that the acts it was inducing constituted infringement. The allegations in this
`
`paragraph have evidentiary support and will likely have further evidentiary support after a reasonable
`
`opportunity for discovery.
`
`18.
`
`19.
`
`Flotek has been aware of the ’294 patent at least as early as February 20, 2013.
`
`Flotek’s acts of infringement have caused damage to Plaintiff and Plaintiff is entitled
`
`to recover the damages. Flotek’s infringement of Plaintiff’s rights under the ’294 patent will
`
`continue to damage Plaintiff’s business, causing irreparable harm, for which there is no adequate
`
`remedy at law, unless Flotek is enjoined by this Court.
`
`
`
`WHEREFORE, NOV requests the Court to:
`
`PRAYER
`
`1.
`
`Enter a judgment that one or more claims of United States Patent No. 6,508,317
`
`have been infringed, either literally and/or under the doctrine of equivalents, by Flotek;
`
`2.
`
`Enter a judgment that one or more claims of United States Patent No. 6,431,294
`
`have been infringed, either literally and/or under the doctrine of equivalents, by Flotek;
`
`3.
`
`Enter a preliminary and permanent injunction against continued patent infringement
`
`in such form as the Court deems just;
`
`Page 4 of 6
`
`Flotek
`Exhibit 1014
`
`
`
`Case 2:14-cv-01056-JRG-RSP Document 18 Filed 03/04/15 Page 5 of 6 PageID #: 67
`
`4.
`
`Award NOV damages adequate to compensate for the infringement, but in no event
`
`less than a reasonable royalty for use made of the invention, together with interest and costs as fixed
`
`by the Court;
`
`5.
`
`Declare this case to be exceptional under the patent laws and award NOV enhanced
`
`damages under 35 U.S.C. § 284; and attorney fees and costs under 35 U.S.C. § 285 or other
`
`applicable statute;
`
`6.
`
`7.
`
`Award NOV of prejudgment interest and costs of the action; and
`
`Grant NOV such other and further relief as the Court may deem just and proper.
`
`
`
`Demand for Jury Trial
`
`NOV demands a trial by jury of all issues so triable.
`
`
`
`March 4, 2015
`
`
`
`
`
`
`Respectfully submitted,
`
`
`/s/ Robert J. McAughan, Jr.
`Robert J. McAughan, Jr.
`Attorney In Charge
`TX State Bar No. 00786096
`bmcaughan@smd-iplaw.com
`Jeffrey A. Andrews
`TX State Bar No. 24050227
`jandrews@smd-iplaw.com
`David L. Terrell
`TX State Bar No. 24063030
`dterrell@smd-iplaw.com
`SUTTON MCAUGHAN DEAVER PLLC
`Three Riverway, Suite 900
`Houston, TX 77056
`(713) 800-5700 (T)
`(713) 800-5699 (F)
`
`Attorneys for Plaintiff
`National Oilwell DHT, L.P.
`
`
`
`
`
`Page 5 of 6
`
`Flotek
`Exhibit 1014
`
`
`
`Case 2:14-cv-01056-JRG-RSP Document 18 Filed 03/04/15 Page 6 of 6 PageID #: 68
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on March 4, 2015, a true and correct copy of the foregoing
`
`document has been served on all counsel of record via the Court’s ECF system.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` /s/David L. Terrell
`
`Page 6 of 6
`
`Flotek
`Exhibit 1014
`
`
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