`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`BAKER HUGHES, A GE COMPANY, LLC
`and
`BAKER HUGHES OILFIELD OPERATIONS, LLC,
`Petitioners
`
`v.
`
`PACKERS PLUS ENERGY SERVICES, INC.
`Patent Owner
`
`______________
`
`Case IPR2016-01496
`Patent 7,134,505
`______________
`
`
`PETITIONERS’ REPLY IN SUPPORT OF MOTION TO EXCLUDE
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`28800853.2
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`Petitioners’ Exhibit List
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`Case IPR2016-01496
`Patent 7,134,505
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`Description
`Exhibit
`1001 U.S. Patent No. 7,134,505 (the “’505 Patent”)
`1002 Affidavit of Margaret Kieckhefer, of the Library of Congress,
`regarding excerpts from COMPOSITE CATALOG OF OIL FIELD AND PIPE
`LINE EQUIPMENT, Vol. 2 (21st ed. World Oil 1955) (“Lane-Wells”)
`1003 U.S. Patent No. 5,449,039 (“Hartley”)
`1004 B. Ellsworth, et al., Production Control of Horizontal Wells in a
`Carbonate Reef Structure, 1999 Canadian Institute of Mining,
`Metallurgy, and Petroleum Horizontal Well Conference (“Ellsworth”)
`1005 U.S. Patent No. 5,375,662 (“Echols”)
`1006 U.S. Patent 4,018,272 (“Brown”)
`1007 Declaration of Ali Daneshy, Ph.D. (“Daneshy1”)
`1008 KATE VAN DYKE, FUNDAMENTALS OF PETROLEUM ENGINEERING (4th
`ed. 1997)
`1009 RON BAKER, A PRIMER OF OIL WELL DRILLING (5th ed. (revised) 1996)
`1010 U.S. Patent No. 4,099,563 (“Hutchison”)
`1011 U.S. Patent No. 6,257,338
`1012
`Excerpts of Prosecution History of U.S. Patent No. 7,861,774, a
`continuation of the ’505 Patent
`Excerpts of Prosecution History of the ’505 Patent
`1013
`1014 U.S. Provisional Application No. 60/404,783
`1015 Dictionary Definition from WEBSTER’S THIRD NEW INTERNATIONAL
`DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED (1986)
`1016 U.S. Patent No. 4,279,306
`1017 K.W. Lagrone, et al., A New Development in Completion Methods,
`SOCIETY OF PETROLEUM ENGINEERING, Paper 530-PA (1963)
`1018 M.J. Eberhard, et al., Current Use of Limited-Entry Hydraulic
`Fracturing in the Codell/Niobrara Formations—DJ Basin, SPE
`(Society for Petroleum Engineering) 29553 (1995)
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`28800853.2
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`Case IPR2016-01496
`Patent 7,134,505
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`Description
`Exhibit
`1019 Declaration of Christopher D. Hawkes, Ph.D., P.Geo., regarding the
`proceedings of the 7th One-Day Conference On Horizontal Well
`Technology Operational Excellence (Canada November 3, 1999)
`(including Ex. 1004 at 102-110)
`1020 Affidavit of Nancy Chaffin Hunter regarding the proceedings of the
`10th Middle East Oil Show & Conference (Bahrain March 15-18,
`1997) (including D.W. Thomson, et al., Design and Installation of a
`Cost-Effective Completion System for Horizontal Chalk Wells Where
`Multiple Zones Require Acid Stimulation, SPE (Society for Petroleum
`Engineering) 37482 (1997)) (“Thomson”)
`1021 Affidavit of Nancy Chaffin Hunter, regarding the proceedings of the
`Production Operation Symposium (Oklahoma City, OK April 2-4,
`1995) (including R. Coon and D. Murray, Single-Trip Completion
`Concept Replaces Multiple Packers and Sliding Sleeves in Selective
`Multi-Zone Production and Stimulation Operations, SPE 29539
`(1995)) (“Coon”)
`1022 Howard, G. C. & Fast, C. R., HYDRAULIC FRACTURING
`(AIMMPE 1970)
`1023 Hyne, Norman J., Dictionary of Petroleum Exploration, Drilling, &
`Production (1991)
`1124 Affidavit of Velma J’Nette Davis-Nichols, regarding Lane-Wells (see
`Ex. 1002) (including Lane-Wells at Appendix A)
`1125 Affidavit of Debbie Caples, regarding Ex. 1008 and Ex. 1009
`(including Ex. 1008 at Appendix B and Ex. 1009 at Appendix D) –
`NOT FILED
`1126 Affidavit of Rodolfo Diaz, regarding Ex. 1017 (including Ex. 1017 at
`Appendix A and related materials at Appendix B) – NOT FILED
`1127 Declaration of Rebekah Stacha, regarding Ex. 1018 (including Ex.
`1018 at Exhibit A) – NOT FILED
`1128 Affidavit of Troy Price, regarding Ex. 1022 (including Ex. 1022 at
`Appendix A) – NOT FILED
`1129 Affidavit of Troy Price, regarding Ex. 1023 (including Ex. 1023 at
`Appendix A) – NOT FILED
`Table Associated with qrySumNetValuebyFamily from Ex. 2051
`(contains PROTECTIVE ORDER MATERIAL)
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`1130
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`Case IPR2016-01496
`Patent 7,134,505
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`1134
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`1135
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`Description
`Exhibit
`1131 March 1, 2017 email from Justin Nemunaitis, confirming RE Packer
`revenue in Ex. 1130 was included in revenue figure reported at Ex.
`2050 at 42:9.
`1132 UNREDACTED Transcript of July 27, 2017 Deposition Testimony of
`Harold R. McGowen III (“McGowen2”) (contains PROTECTIVE
`ORDER MATERIAL)
`1133 REDACTED Transcript of July 27, 2017 Deposition Testimony of
`Harold R. McGowen III (“McGowen2”)
`Transcript of February 28, 2017 Deposition Testimony of Harold R.
`McGowen III (“McGowen1”)
`January 19, 2017 Letter and Written Interrogatories propounded by
`plaintiffs in Rapid Completions LLC, et al. v. Baker Hughes Canada
`Co., Federal Court File No. T-1569-15) (Ottawa), regarding Canadian
`patent No. CA 2,412,072 (the “Related Canadian Litigation”)
`January 30, 2017 Letter and Responses to Ex. 1135
`Excerpt from February 16, 2017 transcript of Related Canadian
`Litigation
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`1136
`1137
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`Ex. 2039 – Mr. Delaney’s testimony is irrelevant because he is neither the author
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`of Ex. 2039 nor someone with personal knowledge of it. Ex. 2082 at ¶¶ 1, 2, 8.
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`Weatherford’s failure to object to Ex. 2039 is irrelevant because Weatherford is not
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`a party to this proceeding. The Weatherford logos and product marks are
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`sponsored solely by attorney argument. RC admits that it relies on Ex. 2039 as
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`evidence that Weatherford in fact sells the particular type of systems described
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`therein. Paper 73 at 1-2. RC’s Rule 703 argument is inapplicable because RC cites
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`to Ex. 2039 (POR at 23, 29), and not to a McGowen opinion it underlies.
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`Ex. 2047 – The Lorraine decision concerns admissibility of electronically-stored
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`information (“ESI”).
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` The disputed ESI appears
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`to have been “e-mail
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`correspondence between counsel” for an arbitration dispute between the parties
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`(Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 537 (D. Md. 2007)), not a
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`document purportedly created by a third party that was produced by a party to the
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`suit. And the page of the Lorraine decision cited by RC is mere dicta. Id. at 552.
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`Regardless, Petitioners did not create Ex. 2047. Thus, there is no basis for the
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`“presumption” of authenticity to which RC retreats. See U.S. v. Brown, 688 F.2d
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`1112, 1115-1116 (7th Cir. 1982) (rejecting defendant’s argument that business
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`records he produced for a company of which he was president were not authentic).
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`The “Rystad Energy” markings are sponsored solely by attorney argument.
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`Authenticity aside, RC’s reliance on hearsay exception (18) fails because RC
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`cites directly to Ex. 2047 in its POR (Paper 56 at 17, 27), rather than to Mr.
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`McGowen’s citation to Ex. 2047 (on Exs. 2050/2051 page 45/49 and Exs.
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`2081/2084 pages 26/29-27/29). Hearsay exception (17) does not apply because,
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`regardless of whether Ex. 2047 is a “market report,” RC has not shown that Ex.
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`2047 is “generally relied on by the public or by persons in particular occupations.”
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`See FRE 803(17) (emphasis added). Mr. McGowen’s specialized reliance (uncited
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`by RC in its POR) does not fit the rule. RC’s purported non-truth-of-the-matter
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`purpose for Ex. 2047—that “persons in the field expected the patented technology
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`to have had a significant market share”—is irrelevant and improper new argument.
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`RC’s Rule 703 argument fails. The rule permits otherwise inadmissible
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`evidence to be disclosed to a jury if a court determines it has sufficient probative
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`value in helping the jury evaluate the opinion the evidence underlies. But, as
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`explained above, Ex. 2047 underlies no opinion by Mr. McGowen that RC relies
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`on in its POR. See POR at 10-13, 21, 26, 42.
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`Finally, RC does not rebut Petitioners’ relevance objections.
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`Exs. 2050 and 2051 – Petitioners’ ability to cross examine Mr. McGowen about
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`product names and numbers does not change their status as hearsay. Rule 703 does
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`not apply because experts do not rely on product names and numbers alone to
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`establish that claim language is met. Rule 702 does not apply because the
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`objected-to product names and numbers are not testimony that is “based on
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`sufficient facts or data” or “the product of reliable principles and methods.” FRE
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`702(b)-(c). Furthermore, striking those names and numbers from Mr. McGowen’s
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`report would impact Mr. McGowen’s opinions on pages 2/15, 3/15, 4/15, and 6/15
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`of Ex. B of Exs. 2050/2051 (as identified in Paper 70 at 5) by rendering them, and
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`RC’s reliance on them (POR at 13, 21), inadequately supported. Finally, RC does
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`not rebut Petitioners’ relevance objections.
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`Ex. 2052 – RC’s speculation about the alleged timing of FracPoint’s development
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`relative to when Petitioners allegedly obtained page 13/34 of Ex. 2052 is improper
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`new argument. RC’s statement that “Petitioners do not dispute” its copying story
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`and were “unable to find a fact witness” to dispute its copying story is misleading;
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`RC’s unsupported attorney argument merited no “conflicting evidence or
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`testimony.” Moreover, RC did not reveal that in the Related Canadian Litigation
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`(see supra at ii), where RC’s baseless allegation was more substantively raised, a
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`related Canadian entity of Petitioners refuted it. See Ex. 1135 at 1 (1. & 2.) and 3-
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`4 (ques. 1-6 and 8-14); Ex. 1136 at 1 (¶2) and 1-3 (responses to ques. 1-6 and 8-
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`14); Ex. 1137 (trial testimony) at 188:5-195:6.
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`RC’s irrelevance rebuttal fails. RC correctly concedes that its “patented
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`invention” is the use of the prior art system in an open hole (Paper 73 at 9-10), but
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`then incorrectly contends that Petitioners’ development of the FracPoint system
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`gives rise to a nexus presumption (id. at 10). The FracPoint system is not the
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`claimed method invention, so it cannot give rise to a nexus presumption under
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`WBIP. WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1329 (Fed. Cir. 2016) (product
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`must be the claimed invention for nexus presumption); cf. id. at 1331 (accused
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`product was claimed invention) (emphasis added). Thus, even if Ex. 2052
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`suggested copying (it does not), Ex. 2052 would still be irrelevant because it would
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`not support a nexus under WBIP or any other decision. RC’s Rule 703 argument
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`fails because RC cites directly to Ex. 2052, not to Mr. McGowen’s testimony
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`regarding Ex. 2052. POR at 18-20.
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`Ex. 2053 – This exhibit is irrelevant for the same reasons as Ex. 2052.
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`Ex. 2054 – RC’s self-authenticating, Rule 902(6) argument should be rejected as
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`circular. See IPR2014-01347, slip op. at 7-8 (Paper 25) (PTAB Jan. 6, 2016).
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`While the article does have “rigzone” in the URL, there is no evidence about what
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`“rigzone” is or what “the layout” of a typical Rigzone article is. RC thus offers
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`insufficient support for Rule 901(b)(4). Mr. Delaney’s testimony is irrelevant
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`because he is neither the article’s author nor someone with personal knowledge of
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`it. Cf. IPR2015-00273, slip op. at 18, 29 (Paper 40) (PTAB June 16, 2016).
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`Authenticity aside, Rule 803(18) does not apply because RC cites directly to Ex.
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`2054 in its POR, not to McGowen’s citation to Ex. 2054 (on 46/49 of Ex. 2050).
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`Rule 703 does not apply because RC cites Ex. 2054 directly (see POR at 13-18),
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`not to any testimony by McGowen that Ex. 2054 underlies.
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`Ex. 2074 – RC’s POR does not cite any McGowen testimony about this exhibit.
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`Objections are withdrawn to Exs. 2078-79 & 2098-99.
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`Exs. 2092, 2093, 2100 – RC’s POR does not cite any McGowen testimony about
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`any of these exhibits.
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`October 19, 2017
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`/Mark T. Garrett/
`Mark T. Garrett
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`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on October 19,
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`2017, a complete copy of PETITIONERS’ REPLY IN SUPPORT OF MOTION
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`TO EXCLUDE was served on Patent Owner’s Exclusive Licensee via email (by
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`consent), as follows:
`
`hhamad@caldwellcc.com
`bcaldwell@caldwellcc.com
`jnemunaitis@caldwellcc.com
`gonsalves@gonsalveslawfirm.com
`rapid@caldwellcc.com
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`
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`/Mark T. Garrett/
`Mark T. Garrett (Reg. No. 44,699)
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