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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`FMC TECHNOLOGIES, INC.
`Petitioner
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`v.
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`ONESUBSEA IP UK LIMITED
`Patent Owner
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`Case IPR2016-00467
`Patent 8,776,893
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`PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE
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`I.
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`II.
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`Proceeding No.: IPR2016-00467
`Attorney Docket: 29188-0025IP1
`TABLE OF CONTENTS
`Introduction ...................................................................................................... 1
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`Claim Construction .......................................................................................... 1
`A. “Tree” 6
`B. “Lateral Branch” ....................................................................................... 7
`C. “Flowline” ................................................................................................. 8
`D. “Connector” ............................................................................................ 10
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`III. Ground 1: Anticipation by Kelly ................................................................... 11
`A. Kelly discloses “a module comprising a production line connector and a
`production flowline connector,” as recited in claim 1. ........................... 11
`B. Kelly discloses a “production line connector being disposed on a lateral
`branch of the subsea tree,” as recited in claim 1. ................................... 13
`C. Kelly discloses each and every feature of claims 2, 4, 6, 7-9, 11, 15, and
`17.
`25
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`IV. Ground 2: Obviousness Based on Kelly and Andersen ................................ 26
`A. Kelly’s principle of operation is not compromised by Andersen. .......... 26
`B. The Kelly/Andersen combination yields each and every feature of the
`Challenged Claims. ................................................................................. 28
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`V.
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`Patent Owner’s due process rights have not been violated. .......................... 28
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`VI. Conclusion ..................................................................................................... 29
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`i
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`FMC-1001
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`FMC-1002
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`FMC-1003
`FMC-1004
`FMC-1005
`FMC-1006
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`FMC-1007
`FMC-1008
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`FMC-1009
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`FMC-1010
`FMC-1011
`FMC-1012
`FMC-1013
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`FMC-1014
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`Proceeding No.: IPR2016-00467
`Attorney Docket: 29188-0025IP1
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`EXHIBIT LIST
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`U.S. Patent No. 8,776,893 to Donald, et al. (“the ’893
`Patent”)
`Excerpts from the Prosecution History of the ’893
`Patent (“the Prosecution History”)
`Declaration of Robert P. Herrmann (“Herrmann Dec”)
`US Patent No. 4,589,493 “Kelly”
`US Patent No. 2,638,917 “Clair”
`PCT Publication No. WO 00/47864 “Andersen”
`(corrected version)
`Reserved
`Webster’s New World Dictionary of American English
`(3d ed. 1991)
`Exhibit 14 to Patent Owner’s Disclosure of Asserted
`Claims and Infringement Contentions for U.S. Patent
`No. 8,776,893, served by Patent Owner in Civil Action
`No. 2-15-cv-445-JRG, filed March 30, 2015 in E.D.
`Tex.
`Reserved
`Reserved
`Reserved
`Exhibit 4 to Patent Owner’s Disclosure of Asserted
`Claims and Infringement Contentions, served by Patent
`Owner in Civil Action No. 2-15-cv-445-JRG, filed
`March 30, 2015 in E.D. Tex.
`Exhibit 3 to Patent Owner’s Disclosure of Asserted
`Claims and Infringement Contentions, served by Patent
`Owner in Civil Action No. 2-15-cv-445-JRG, filed
`March 30, 2015 in E.D. Tex.
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`Proceeding No.: IPR2016-00467
`Attorney Docket: 29188-0025IP1
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`Deposition transcript of Patent Owner’s expert, George
`Boyadjieff, dated January 25, 2017.
`Deposition transcript of Patent Owner’s expert, George
`Boyadjieff, dated January 26, 2017.
`Copy with Mr. Boyadjieff’s markings of Exhibit 2006 in
`IPR2016-00495 (Declaration of George Boyadjieff) from
`the deposition of Patent Owner’s expert, George
`Boyadjieff.
`Norman J. Hyne, PH.D., Dictionary of Petroleum
`Exploration, Drilling & Production (excerpted).
`Reserved.
`Patent Owner’s Opening Claim Construction Brief, filed
`on April 26, 2016 in E.D. Tex. by Patent Owner in Civil
`Action No. 2-15-cv-445-JRG.
`Patent Owner’s Reply Claim Construction Brief, filed on
`June 2, 2016 in E.D. Tex. by Patent Owner in Civil
`Action No. 2-15-cv-445-JRG.
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`iii
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`FMC-1015
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`FMC-1016
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`FMC-1017
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`FMC-1018
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`FMC-1019
`FMC-1020
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`FMC-1021
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`Proceeding No.: IPR2016-00467
`Attorney Docket: 29188-0025IP1
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`I.
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`Introduction
`Patent Owner’s positions fail when longstanding legal principles are properly
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`applied to the factual record developed in this trial. Not only do Patent Owner’s
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`positions lack merit, they are inconsistent with representations Patent Owner has
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`made to support its infringement allegations in the related district court proceedings.
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`Now, faced with the reality that its claims are unpatentable, Patent Owner has flip-
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`flopped on multiple key issues in a post hoc attempt to manufacture patentability. A
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`proper application of BRI principles, though, makes clear that Patent Owner
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`overreached when pursuing the overly broad claims of the ’893 Patent.
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`II. Claim Construction
`To manufacture patentability, Patent Owner attempts to make issues of claim
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`construction where there are none. Indeed, in rendering its Institution Decision, the
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`Board has already interpreted the Challenged Claims under BRI based on their plain
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`meaning. Certain of Patent Owner’s constructions, moreover, import limitations into
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`the claims. Yet, Patent Owner has failed to provide any cogent reasons why the
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`Board’s initial plain-meaning interpretation of the claims should be narrowed. In
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`patent law, “the name of the game is the claim.” In re Hiniker Co., 150 F.3d 1362,
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`1369 (Fed. Cir. 1998).
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`Patent Owner’s infringement contentions and claim construction filings are
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`probative of BRI and represent its true understanding of the reasonable scope of the
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`claims. While no doubt convenient to abandon these initial broad interpretations,
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`Patent Owner cannot now escape the fact that, as a self-proclaimed innovator in the
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`field, it had numerous POSITA at its disposal in preparing both the contentions and
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`claim construction filings. Thus, these materials, if nothing else, represent Patent
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`Owner’s position on the POSITA’s understanding of the claims. Moreover, Patent
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`Owner’s contentions and claim construction filings were not made lightly, but
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`pursuant to good faith and reasonableness obligations imposed by Fed. R. Civ. Proc.
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`11. Finally, there can be little dispute about how the contentions interpreted the
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`Challenged Claims, as they were based on clear, detailed animations showing
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`relevant features and arrangement of the accused systems. See generally FMC-1009;
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`FMC-1013; FMC-1014.
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`Instead of explaining its inconsistent characterizations of the ’893 Patent,
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`Patent Owner falsely accuses Petitioner’s expert, Mr. Herrmann, of “present[ing]
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`prior art arguments that map onto the alleged infringement contentions in the related
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`district court case rather than analyze POSA’s view of the ’893 patent and prior art.”
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`POR, p.3. Yet, Mr. Herrmann testifies his declaration was based on his
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`understanding as a POSITA viewing the prior art references at the relevant time
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`period. FMC-1003, ¶12. Mr. Herrmann’s declaration does not rely on the
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`contentions, and to the extent Mr. Herrmann was exposed to the contentions at some
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`point, this is not improper. Patent Owner’s infringement contentions constitute
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`reliable extrinsic evidence of a reasonable POSITA’s understanding of the claim
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`terms. It is, therefore, appropriate to rely upon them in these proceedings.
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`Not only are the contentions reliable (i.e., produced by Patent Owner and,
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`therefore, known to be authentic and prepared in good faith), they are also highly
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`probative with respect to the Petition’s mappings of the Challenged Claims to Kelly,
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`the primary reference in these proceedings. While Patent Owner criticizes the
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`Petition’s reference to the contentions, it fails to address the clear similarities
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`between Petitioner’s Enhanced Vertical Deepwater Tree (“EVDT”), the accused
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`device in district court, and Kelly’s subsea tree. See FMC-1013, pp. 3 14 (annotated
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`figures below). Just like in Kelly1, the EVDT includes a “flowline body” (22) that
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`receives production fluid via an “inlet fluid line” (20) branching off laterally from
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`the tree’s “production bore” (vertical tubular of 18). The “flowline body” (22) is
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`fluidically coupled to a “retrievable choke assembly” (26) so as to provide raw
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`production fluid to the choke and receive choked production fluid therefrom. The
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`choked production fluid is routed by the “flowline body” (22) to an “outlet fluid
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`line” (24), which ultimately leads to an “external flowline” (2:23-29, not shown).
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`This is the exact paradigm in Kelly. Thus, it would be erroneous to ignore the
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`infringement contentions, given these documents provide an illustrative mapping of
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`the Challenged Claims to a product undoubtedly similar to the asserted prior art.
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`1 Parenthetical citations correspond to elements of Kelly, FMC-1004; see Figs. 1-2.
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`The claims of an unexpired patent subject to IPR are given their broadest
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`reasonable construction in light of the specification. 37 C.F.R. § 42.100(b). This
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`legal standard of claim construction differs from that which is applied in district
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`court proceedings. District courts do not assign terms their broadest reasonable
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`interpretation, but rather “seek out the correct construction—the construction that
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`most accurately delineates the scope of the claimed invention—under the framework
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`laid out in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc).” PPC
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`Broadband, Inc. v. Corning Optical Communs. RF, LLC, 815 F.3d 734, 740 (Fed.
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`Cir. 2016). These diverging approaches will lead to different claim constructions in
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`certain circumstances. Office Patent Trial Practice Guide, 77 Fed. Reg. 48756,
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`48766 (Aug. 14, 2012). In other words, the “broadest reasonable construction
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`consistent with the specification” under BRI is not necessarily the “correct
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`construction” under Phillips. See PPC Broadband, 815 F.3d at 742. The Federal
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`Circuit’s application of this principle in its recent PPC Broadband decision clearly
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`illustrates this dichotomy and, therefore, bears review here. In PPC Broadband, the
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`record before the Board presented two inconsistent dictionary definitions equally
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`applicable to construction of the term “continuity member.” See id at 741-742. The
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`narrower definition suggested a construction of “uninterrupted in time,” while the
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`broader definition further embraced “something that is uninterrupted in space.” Id.,
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`at 742. In affirming the Board’s adoption of the broader definition, the Court
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`explained that the narrower definition was the “correct construction” under Phillips,
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`but the broader definition, because it was supported by the specification, constituted
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`the broadest reasonable construction for purposes of IPR.
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`In the present case, Patent Owner proffers constructions on four terms that are
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`commensurate with those adopted in the related district court proceedings. In some,
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`but not all, instances Petitioner agrees with this approach. In other instances,
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`however, the record makes clear a broader interpretation is warranted.
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`A.
`“Tree”
`As Patent Owner notes, the parties agreed in the district court proceedings that
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`the term “tree” should be construed as “an assembly of pipes, valves, and fittings
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`installed between the wellhead and the flowline.” POR, p.8. Petitioner does not
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`contest that the same construction is appropriate here under BRI. As discussed in
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`more detail below, in this context, the flowline marking the terminus of the “tree” is
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`not merely a line for carrying flow, as flowline can be understood under BRI (see
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`Section II(C), infra), but particularly the external pipeline, or export line, connected
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`to the installed tree that transports flow to the surface or another subsea structure.
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`Ex.2006, ¶31, ¶47 (figure depicting flowlines at Section III(A), infra). Pursuant to
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`this agreed-upon construction, the plain and ordinary meaning of the term “tree” is:
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`The assembly of components demarcated by the wellhead and the external flowline.
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`This constitutes the plain and ordinary meaning of the term “tree.”
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`B.
`“Lateral Branch”
`Patent Owner references the District Court’s construction of the term
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`“branch” as “an offshoot from a flowpath such as a production bore or the annulus
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`bore, but does not include the production bore or the annulus bore.” POR, pp.8-9.
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`Patent Owner then notes that the term at issue here is modified by the adjective
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`“lateral” and, therefore, advances an identically modified construction (i.e., “a
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`lateral offshoot. . .”). Id. Petitioner does not refute this construction under BRI. Yet,
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`it is notable that Patent Owner’s proffered construction does not implicate any
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`particular start or end point for the lateral branch, nor does it require any portion of
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`the branch to be oriented in a particular direction (e.g., horizontally). For example,
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`the declaration of Patent Owner’s expert, Mr. Boyadjieff, shows several illustrative
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`trees having branches with both horizontal and vertical portions. See, e.g., Ex.2006,
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`¶29 (below, left, annotated in red), ¶86 (below, right, original).
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`Likewise, Patent Owner’s infringement contentions clearly point to a vertical
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`conduit as a “Lateral Branch.” FMC-1009, p.8.
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`Thus, in accordance with its plain and ordinary meaning, the term “lateral
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`branch” should be construed under BRI so as to encompass any portion of a lateral
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`offshoot, including horizontal and/or vertical portions that are laterally spaced apart
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`from the production/annulus bores.
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`C.
`“Flowline”
`Here, Patent Owner advances the agreed-upon district court construction of
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`“flowline” as “a pipeline extending outbound of the terminus of a subsea tree.” This
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`construction, while accurate, refers only to the typical usage of the term. Of course,
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`the term “flowline” should be construed so as to include the external flowline—i.e.,
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`a pipeline “connected after the tree is installed on the wellhead[.]” POR, p.34;
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`Ex.2006, Boyadjieff’s Declaration, ¶92 (“[T]he term flowline means a pipeline[.]”
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`(w/emphasis)). Under BRI, however, the term should also encompass its broader
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`plain meaning and be interpreted broadly enough to encompass a fluid line carrying
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`flow, as the word suggests.
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`The breadth of the term “flowline” in this field is further exemplified by the
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`extrinsic evidence. Indeed, certain references specific to the oil and gas field broadly
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`define “flowlines” as any “pipes and pipe fittings that carry fluids.” FMC-1018,
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`p.194. Likewise, Mr. Herrmann’s declaration refers to a line that “receives fluids
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`produced from the wellbore” as a “production flowline[].” FMC-1003, ¶19.
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`In short, the generic term “flowline” warrants a broader construction under
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`BRI than the Phillips standard applied in district court. Patent Owner has proffered
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`no evidence to suggest that such an interpretation is in any way inconsistent with the
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`specification. As such, the construction of this term adopted in these IPR
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`proceedings should include, not only the external pipeline marking the terminus of
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`the tree, but also any fluid line carrying fluid flow.
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`D.
`“Connector”
`As noted by Patent Owner, the District Court construed the term “connector”
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`as “a device that attaches things together.” POR, pp.7-8. In adopting this
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`construction, the District Court rejected the broader interpretation advanced by
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`Patent Owner under the Phillips framework. EX.2012, pp.10-11. In these
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`proceedings, the Petition referenced the definition of “connect” from Webster’s New
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`World Dictionary, as “to join or fasten (two things together, or one thing with or to
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`another; link; couple.” Pet., p.7 (quoting FMC-1008). Notably, this was essentially
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`the same definition advanced and promoted by Patent Owner before the District
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`Court. See FMC-1020, pp. 18-19 (citing Merriam-Webster Online Dictionary’s
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`definition of “connector”); see also FMC-1021, p.20 (“a ‘connector’ . . . is
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`recognized in the oilfield industry as a device used to ‘connect,’ ‘join,’ or ‘attach’
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`things together.”).
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`Patent Owner now seeks to abandon its own broader proposed construction in
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`favor of the narrower construction adopted by the District Court. For example, Patent
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`Owner has argued that “[t]he ’893 Patent [] uses the term ‘connection’ in a broad
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`sense.” FMC-1020, p.20. And, Patent Owner also argued “none of the intrinsic
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`evidence is contrary to the construction that a ‘connector’ is merely a ‘joining
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`device[.]’” FMC-1020, p.19. Thus, under Patent Owner’s own arguments, it is
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`improper in the BRI context to limit “connector” to a device that performs an
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`“attaching” or “securing” function. The following exemplary portion of Mr.
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`Boyadjieff’s deposition demonstrates his admission of this:
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`A. [I]nside this the choke body 15-A this mechanical diverter
`assembly, this assembly has the means to connect to the production
`branch coming in and the means to connect to the flowline going out
`inside that choke body.
`Q. So by “connect,” are you referring to a fluid connection?
`A. Yes.
`Q. Okay. You’re not referring to attaching?
`A. No.
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`FMC-1015, 114:4-8 (referencing Fig. 4 of the ’893 Patent).
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`III. Ground 1: Anticipation by Kelly
`A. Kelly discloses “a module comprising a production line connector
`and a production flowline connector,” as recited in claim 1.
`As set forth in the Petition, Kelly’s sealing means shown in passages 68 and
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`70 correspond to the claimed “production line connector” and “production flowline
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`connector,” respectively. Pet., pp.8-10. These sealing means are “connectors” under
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`BRI because they fluidically connect or join the passages of choke body 30 to the
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`passages of collet body 22. Pet., pp.9-10. Patent Owner’s attempts to undermine this
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`mapping fail.
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`First, Patent Owner relies upon the testimony of Mr. Herrmann stating: “To
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`your engineer these are not connectors, these are seals. They’re elements of a
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`connector.” POR, p.25 (citing Ex.2004, 163:6-8). However, in advancing this
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`testimony, Patent Owner ignores other portions of Mr. Herrmann’s deposition
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`testimony that confirm a broader reasonable interpretation, stating: “[I]n a broad
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`interpretation you can say these [seals] are connectors.” Ex.2004, 162:13-21. And
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`the ’893 Patent itself describes a variety of different “connectors,” each of which
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`must be embraced by the BRI of the claims. Among the “connectors” described in
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`the ’893 Patent are those for fluid conduits and power conduits. See, e.g., FMC-
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`1001, 2:63-65 (“fluid and/or power conduit connectors”).
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`Second, Patent Owner argues that Kelly’s sealing means are merely
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`constituent parts of the singular collet connector 28 and, therefore, cannot be viewed
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`as two separate “connectors.” POR, pp.23, 25-26. This argument is similarly
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`unpersuasive, as demonstrated by the deposition testimony of Mr. Boyadjieff
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`explaining that a single device can include both of the claimed “connectors”:
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`Q. Okay. Which connector is this? Is this the production line connector
`or the production flow line connector?
`A. Both.
`Q. It’s both?
`A. Yes.
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`FMC-1015, 106:6-14 (referring to Fig. 4 of the ’893 Patent); see also id., 110:25-
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`114:3 (“A. Basically, the diverter assembly is the connector that connects to the flow
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`line and to the production line.”). Patent Owner’s infringement contentions adopt a
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`similar reading of two parts of a single structure as “necessarily” including a
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`“production line connector” and a “production flowline connector.” FMC-1009, p.4
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`(figure below indicating the typical location of seals on a connection like Kelly’s).
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`Thus, contrary to what is now argued in defense of the Challenged Claims, both
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`Patent Owner and its expert corroborate the mapping and reasoned analysis set forth
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`in the Petition.
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`B. Kelly discloses a “production line connector being disposed on a
`lateral branch of the subsea tree,” as recited in claim 1.
`Patent Owner further attempts to undermine the Petition’s mapping to Kelly
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`by arguing choke assembly 26 “is not disposed on a lateral branch of Kelly’s tree.”
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`POR, p.29. The false premise upon which Patent Owner’s argument stands, and
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`ultimately falls, is that Kelly’s lines 20 and 24 are “flowlines” and therefore cannot
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`be part of a “lateral branch” because “they extend outside the tree, the agreed upon
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`starting point of the flowline[.]” Id.
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`Lines 20 and 24 do not extend beyond Kelly’s subsea tree. As discussed
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`above, the term “tree” refers to the assembly of components “between the wellhead
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`and the flowline.” Section II(C), supra. The flowline marking the terminus of the
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`“tree” is not just any line carrying flow under BRI, but particularly the external
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`pipeline, or export line, connected to the installed tree that transports flow to the
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`surface or another subsea structure. Ex.2006, ¶31, ¶47 (figure below). As explained
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`by Mr. Boyadjieff, there are various different types of external flowlines that carry
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`production fluid away from the tree—e.g., jumpers and gathering lines. Id., ¶31. Mr.
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`Boyadjieff further notes that sometimes a flowline is even referred to by an entirely
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`different and dissimilar name, such as “production discharge
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`line.”2 Id.
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`2 The term “production discharge line,” however, does not always refer to the
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`external flowline. In arguing otherwise Patent Owner flouts testimony from both
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`experts. POR, pp.37-38. For example, Patent Owner’s allegation that Mr. Herrmann
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`admits Kelly’s line 20 is a flowline and not a branch ignores his deposition testimony
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`that a “production discharge line” is not the external “flowline” connected after the
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`Nomenclature notwithstanding, the identifying characteristic of the external flowline
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`is that it mates with a connector at the terminus of the tree. This is “because the
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`flowline is only connected after the tree is installed on the wellhead so that the
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`flowline does not interfere with landing the tree or cause damage to the flowline,
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`tree, or wellhead.” POR, p.34; Ex.2006, ¶87. Mr. Boyadjieff further explains “[t]he
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`flowline can be thousands of feet long,” thus “it would be a logistical nightmare” to
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`land the tree on the wellhead while connected to the flowline. Ex.2006, ¶87. All
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`parties agree on these points.
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`tree is landed. See Ex.2005, 257:22-258:5, 260:16-24. Further, Patent Owner
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`contradicts Mr. Boyadjieff’s testimony that a “production discharge line” can be
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`within the boundary of the frame, and thus would be characterized as a branch, not
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`the flowline under Mr. Boyadjieff’s rubric. FMC-1016, 144:4-8; FMC-1017, p.23
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`(annotating a pipe within the “tree” as a “discharge pipe”).
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`Having established the undisputed meaning of external flowline, insofar as
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`this term is used to define the tree, it follows inexorably that Kelly’s short fluid
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`“lines” 20 and 24, while “flowlines” generally under BRI, are still part of the “tree”
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`and are not the external flowline at the end of the “tree” because they are not large
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`pipelines “connected after the tree is installed on the wellhead.” Even Kelly made
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`this same distinction between “lines” 20 and 24 and “the flowline” external to the
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`tree. Notably, Kelly’s disclosure indicates collet body 22, line 20, and line 24 are
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`landed onto the wellhead as a single unit with other components of tree 18 and,
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`further, that “line 24 connects from collet body 22 to the subsea flowline.” FMC-
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`1004, 2:24-25 (w/emphasis); see also generally id., 2:18-25 (explaining that
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`wellhead equipment 10 is landed as a unit, and describing tree 18 as merely “a
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`Proceeding No.: IPR2016-00467
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`portion of the wellhead equipment 10”), Fig. 1 (illustrating collet body 22 bolted to
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`lines 20/24 and connected to a portion of the tree 18’s frame). Like Kelly’s
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`production tree, the “basic” tree from Mr. Boyadjieff’s declaration also includes an
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`assembly of relatively short pipes and valves landed on the wellhead as a unit before
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`the large external flowline is attached at the labeled “Connection for the Flowline.”
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`Ex.2006, ¶36. The comparison of this admitted production tree (right) to the tree
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`shown in Kelly’s Figure 1 (left) is striking.
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`Proceeding No.: IPR2016-00467
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`So, a POSITA would have taken line 20, collet body 22, and line 24 as part of
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`Kelly’s tree because they are components of “the unitary structure that is lowered to
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`the well,” and only after this assembly is landed on the well is the external flowline
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`connected. Ex.2006, ¶¶86-87. Accordingly, Kelly’s “tree” and its “branches” are
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`bound by its connections to the wellhead on one end and the external flowline
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`connected downstream of line 24 on the other end. Similar to the “BASIC SUBSEA
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`TREE”
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`shown
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`above, Kelly’s
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`production tree, as shown in Figure 2
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`(right), includes a connection for the
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`flowline at the end of line 24. Under
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`the rubric of Mr. Boyadjieff, Kelly’s
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`lines 20 and 24 must, then, be part of
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`the lateral branch of the tree because
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`they are not the external flowline or
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`the production/annulus bores. Ex.2006, ¶31 (“For the technology at issue in this
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`proceeding, there are three different types of piping: bores (annulus or well),
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`branches, and flowlines.”).
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`Patent Owner’s allegation that Mr. Herrmann admitted line 24 is a “flowline”
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`and, therefore, not a branch of Kelly’s tree is false and misleading. POR, p.30. Mr.
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`Herrmann’s testimony was not specifically referring to the term “flowline” in the
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`18
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`Proceeding No.: IPR2016-00467
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`context of defining the boundary of Kelly’s subsea tree, but merely as a fluid line
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`carrying flow under BRI. FMC-1003, ¶13. This theory was advanced in the Petition
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`in order to preemptively address potential narrow interpretations that may have been
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`advanced by Patent Owner seeking to require the claimed “assembly” to be directly
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`“mounted to” the “production flowline.” Patent Owner, however, has made no such
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`arguments in this case, and further development of the record suggests agreement
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`between the parties that no direct connection is required. For example, Mr.
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`Boyadjieff clearly described and marked Figure 4 of the ’893 Patent during
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`deposition, and his annotations reveal an intervening structure—choke body 15a—
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`between the “Processing Module” (red) and the “Production Flowline.” FMC-1015,
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`108:21-110:18; see also FMC-1017, 138 (below, Boyadjieff annotations in red).
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`Proceeding No.: IPR2016-00467
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`Likewise, Patent Owner’s infringement contentions map the claimed “assembly” to
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`a “Retrievable Choke and Flow Module” indirectly connected to a downstream
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`“Production Flowline.” FMC-1009, page 1 (below).
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`Thus, the claim features are met whether the “production flowline” is taken as
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`Kelly’s line 24—a fluid line that carries flow under BRI—or as the unseen external
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`flowline attached to the flowline connector at the terminal end of line 24 (see
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`annotated Fig. 2 above). Pet., p.7.
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`Equally unpersuasive is Patent Owner’s argument that Kelly describes lines
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`20 and 24 as “flowlines” by relation to collet body 22, which is alternatively referred
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`to as a “flowline body.” POR, 31. The argument falls short because it places form
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`over substance, relying solely on inconsistent nomenclature in the prior art
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`reference3. Such arguments have traditionally been rejected in the jurisprudence of
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`patent law, which has never required the prior art to use any particular terminology.
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`In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990) (even anticipation is not an
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`“ipsissimis verbis” test). Even further, as previously discussed, the term “flowline”
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`is used interchangeably in this field with a host of other terms (e.g., flowpath or pipe)
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`that simply refer to fluid conduits carrying flow. Section II(C), supra. Mr.
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`Boyadjieff’s deposition testimony confirms this. FMC-1016, 54:20-55:44. As such,
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`very little can be gleaned from Kelly’s inconsistent use of the generic term
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`“flowline” in relation to collet body 22 and/or lines 20 and 24.
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`Finally, lacking either intrinsic or unbiased extrinsic evidence, Patent Owner
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`turns to the testimony of Mr. Boyadjieff in an attempt to establish that a POSITA
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`would have taken lines 20 and 24 as external flowlines because they extend beyond
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`the tree’s frame. POR, p.32. However, even this falls short. As a threshold matter,
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`3 Notably, Mr. Boyadjieff confirmed during deposition that the nomenclature in this
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`field is inconsistent. See FMC-1015, 52:1-3 (“I mean lots of nomenclatures bandied
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`around by different manufacturers and different people over the years.”).
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`4 “[I]t’s just a pipe. Sometimes it would be called a flow line. Sometimes it would
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`just be called a passage, a pipe connecting the bottom of the wing block to the next
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`component.”
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`22
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`Proceeding No.: IPR2016-00467
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`this argument is based on an added limitation that is not included in the claim
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`construction advanced by Patent Owner. As previously discussed, all parties agree
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`the term “tree” should be construed as “an assembly of pipes, valves, and fittings
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`installed between the wellhead and the flowline.” Section II(A), supra. This agreed-
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`upon construction does not expressly or impliedly reference a “frame” of any sort.
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`Thus, it is improper for Patent Owner to rely upon such a structural element as
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`defining the metes and bounds of Kelly’s subsea tree. Patent Owner further diverges
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`from its own proffered constructions and arguments in referencing Kelly’s allegedly
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`“very narrow view of what constituted its tree.” POR, p.33. In short, Patent Owner
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`claims that Kelly views the tree as limited to the physical structure pointed to by the
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`leader line of reference numeral 18. This structure, however, is merely a collection
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`of valves arranged along the vertical tubular of the tree. Neither party has asserted
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`any construction or argument that would consider this limited structure as the
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`entirety of Kelly’s tree. Thus, contrary to Patent Owner’s assertions, little to no
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`relevant information can be gleaned from Kelly’s reference numerals alone.
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`Moreover, Patent Owner’s frame-theory amounts to importation of an
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`extraneous limitation into the claims, which is improper under BRI. Not only does
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`Patent Owner seek to artificially narrow the claims, the limitation it purports to add
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`is not even supported by the specification. Indeed, Patent Owner has not pointed to
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`even a single sentence in the ’893 Patent itself in support of this pseudo claim
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`construction theory. See generally POR, 32-37 (lacking citations to the ’893 Patent).
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`Further still, certain other
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`portions of Mr. Boyadjieff
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