Paper No. 39
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`BAKER HUGHES INCORPORATED
`and
`BAKER HUGHES OILFIELD OPERATIONS, INC.,
`Petitioners
`
`v.
`
`PACKERS PLUS ENERGY SERVICES, INC.
`Patent Owner
`
`______________
`
`Case IPR2016-00598
`Patent 7,861,774
`______________
`
`
`
`PETITIONERS’ MOTION TO EXCLUDE
`
`
`36641464.1
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`BAKER HUGHES INCORPORATED
`and
`BAKER HUGHES OILFIELD OPERATIONS, INC.,
`Petitioners
`
`v.
`
`PACKERS PLUS ENERGY SERVICES, INC.
`Patent Owner
`
`______________
`
`Case IPR2016-00598
`Patent 7,861,774
`______________
`
`
`
`PETITIONERS’ MOTION TO EXCLUDE
`
`
`36641464.1
`
`
`
`
`
`Case IPR2016-00598
`Patent 7,861,774
`Petitioners move to exclude the following exhibits and testimony pursuant to
`
`Rule 42.64:
`
`Ex. 2021 (Rystad Energy report)
`
`Objections: (1) Authentication as to entire document – Federal Rule of Evidence
`
`(“FRE”) 901(a); (2) Hearsay as to page 10/14 – FRE 801(c), 802.
`
`Location of prior objections: Papers 28/37 at 3.
`
`Locations exhibit is relied upon by RC: POR at 37; and, to the extent
`
`considered, Ex. 2034 (McGowen, unredacted) at 45:25-29.
`
`Explanation: RC has not proven authenticity. RC filed a declaration by its
`
`paralegal (Ex. 2045 at ¶¶ 1, 2), purporting to authenticate Ex. 2021 (Ex. 2045 at
`
`¶ 20), but failed to establish a foundation that would enable Mr. Delaney to
`
`competently testify about the exhibit’s authenticity. The fact that Petitioners
`
`produced Ex. 2021 in litigation is irrelevant. See POR at 27-28. Furthermore, Mr.
`
`McGowen also took no steps to authenticate or otherwise verify the information on
`
`page 10/14 of Ex. 2021 on which he relied. Ex. 1021 (McGowen deposition) at
`
`142:7-145:17. Therefore, Ex. 2021 should be excluded under FRE 901.
`
`In addition, the information on page 10/14 on which RC relies (POR at 37)
`
`and on which Mr. McGowen relies (Ex. 2034 (McGowen, unredacted) at 45:25-29)
`
`is hearsay because it is offered for the truth of the matter asserted – namely, that
`
`sales of certain systems were of a certain amount that reflected commercial
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`36641464.1
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`1
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`Case IPR2016-00598
`Patent 7,861,774
`success. See also Ex. 1021 at 144:7-21. However, RC has not shown that any
`
`hearsay exception applies, and has not presented the testimony of anyone with
`
`first-hand knowledge of the information presented on page 10/14 of Ex. 2021.
`
`Therefore, the information on page 10/14 of Ex. 2021 on which RC (through its
`
`POR or its expert’s declaration) relies should be excluded under FRE 801(c) and
`
`802.
`
`Ex. 2022 (Article Regarding Schlumberger)
`
`Objections: (1) Authentication as to entire document – FRE 901(a); (2) Hearsay
`
`as to (i) the portion(s) of the document on which RC relies to establish that “the
`
`largest oil and gas service company in the world—Schlumberger—opted to work
`
`with Packers Plus to provide this technology” (POR at 29); and (ii) the portion(s)
`
`of the document on which RC relies to establish that Schlumberger “desire[d] to
`
`obtain rights to the technology” (id.) – FRE 801(c), 802.
`
`Location of prior objections: Papers 28/37 at 3-4.
`
`Locations exhibit is relied upon by RC: POR at 29; and, to the extent
`
`considered, Ex. 2034/2036 (McGowen, unredacted and redacted) at section 14.7 on
`
`page 46.
`
`Explanation: RC has not proven authenticity. RC filed a declaration by its
`
`paralegal (Ex. 2045 at ¶¶ 1, 2), purporting to authenticate Ex. 2022 (Ex. 2045 at
`
`¶ 21), but failed to establish a foundation that would enable Mr. Delaney to
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`36641464.1
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`2
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`Case IPR2016-00598
`Patent 7,861,774
`competently testify about the exhibit’s authenticity. Therefore, Ex. 2022 should be
`
`excluded under FRE 901.
`
`In addition, the portion(s) of the document on which RC relies to establish
`
`that “the largest oil and gas service company in the world—Schlumberger—opted
`
`to work with Packers Plus to provide this technology” (POR at 29) are hearsay
`
`because they are offered for the truth of the matter asserted – namely, that
`
`Schlumberger opted to work with Packers Plus to provide the Packers Plus
`
`technology that RC contends is relevant to industry praise. Similarly, the
`
`portion(s) of the document on which RC relies to establish that Schlumberger
`
`“desire[d] to obtain rights to the technology” (id.) are also hearsay because they are
`
`offered for the truth of the matter asserted – namely, that Schlumberger desired to
`
`obtain rights to the technology, which RC asserts supports its industry praise
`
`argument. However, RC has not shown that any hearsay exception applies, and
`
`has not presented the testimony of anyone with first-hand knowledge of any
`
`agreement between Schlumberger and Packers Plus or of any Schlumberger’s
`
`“desire” relating to any such agreement. Therefore, such portion(s) of Ex. 2022
`
`should be excluded under FRE 801(c) and 802.
`
`Ex. 2024 (BH00363808)
`
`Objection: Relevance – FRE 401 and 402.
`
`Location of prior objection: Papers 28/37 at 4-5.
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`36641464.1
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`3
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`Case IPR2016-00598
`Patent 7,861,774
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`Locations exhibit is relied upon by RC: POR at 30-32.
`
`Explanation: RC has not shown that anything in Ex. 2024 makes it more probable
`
`that Petitioners copied the claimed technology. RC relies on only two pages of this
`
`exhibit (BH00363833 and BH00363820) to assert that Petitioners obtained “a
`
`confidential Packers Plus document while [Petitioners] were designing their own
`
`competing system” (POR at 30 (emphasis added)) and “actually developed their
`
`own system by copying Packers Plus” (POR at 32). But RC offers no evidence of
`
`when Petitioners were in possession of BH00363820 or when Petitioners were
`
`“designing their own competing system.” Moreover, neither Petitioners’ FracPoint
`
`system on which RC relies or Packers Plus’s StackFRAC system allegedly shown
`
`in Exs. 2024 and 2025 is more similar to the system recited in any of the
`
`challenged method claims than is Thomson’s prior art system. See Petition at 22-
`
`38 (addressing Thomson’s disclosure relative to claim 1); compare Ex. 2034 claim
`
`1 charts for StackFRAC and FracPoint systems; see also Ex. 1021 (McGowen
`
`deposition) at 64:1-65:25, 67:5-9 (StackFRAC system meets claim 1 structure),
`
`67:22-69:23 (Thomson and StackFRAC systems are same with respect to claim 1
`
`structure), 71:10-72:23 (Thomson and FracPoint systems are same with respect to
`
`36641464.1
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`Case IPR2016-00598
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`claim 1 structure).1 Therefore, Ex. 2024 should be excluded under FRE 401 and
`
`402.
`
`Ex. 2025 (RC_PAC00019434)
`
`Objection: Authentication – FRE 901(a); Relevance – FRE 401 and 402.
`
`Location of prior objections: Papers 28/37 at 5.
`
`Locations exhibit is relied upon by RC: POR at 30-32.
`
`Explanation: RC has not proven authenticity. RC filed a declaration by its
`
`paralegal (Ex. 2045 at ¶¶ 1, 2), purporting to authenticate Ex. 2025 (Ex. 2045 at
`
`¶ 24), but failed to establish a foundation that would enable Mr. Delaney to
`
`competently testify about the exhibit’s authenticity. Therefore, Ex. 2025 should be
`
`excluded under FRE 901.
`
`Furthermore, RC has not shown that anything in Ex. 2025 makes it more
`
`probable that Petitioners copied the claimed technology. RC compares Ex. 2025 to
`
`page BH00363820 of Ex. 2024 to support its assertions that Petitioners obtained “a
`
`confidential Packers Plus document while [Petitioners] were designing their own
`
`competing system” (POR at 30 (emphasis added)) and “actually developed their
`
`1 The term “tubing string” was used in questioning to indicate structure because
`
`Mr. McGowen did not understand what “structural limitations” or “limitations”
`
`were. See Ex. 1030 at 62:11-63:25; see also id. at 33:20-25 (reflects meaning of
`
`“tubing string”).
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`36641464.1
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`5
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`Case IPR2016-00598
`Patent 7,861,774
`own system by copying Packers Plus” (POR at 32). But RC offers no evidence of
`
`when Petitioners were in possession of BH00363820, or of when Petitioners were
`
`“designing their own competing system.” Moreover, neither Petitioners’ FracPoint
`
`system on which RC relies or Packers Plus’s StackFRAC system allegedly shown
`
`in Exs. 2024 and 2025 is more similar to the system recited in any of the
`
`challenged method claims than is Thomson’s prior art system. See Petition at 22-
`
`38 (addressing Thomson’s disclosure relative to claim 1); compare Ex. 2034 claim
`
`1 charts for StackFRAC and FracPoint systems; see also Ex. 1021 (McGowen
`
`deposition) at 64:1-65:25, 67:5-9 (StackFRAC system meets claim 1 structure),
`
`67:22-69:23 (Thomson and StackFRAC systems are same with respect to claim 1
`
`structure), 71:10-72:23 (Thomson and FracPoint systems are same with respect to
`
`claim 1 structure). Therefore, Ex. 2025 should be excluded under FRE 401 and
`
`402.
`
`Ex. 2034 (unredacted McGowen Declaration)
`
`Objections: Hearsay as to (i) each sliding sleeve, packer, and fluid conveyed
`
`sealing device names and numbers referenced in the claim 1 chart of Exhibit B (to
`
`Ex. 2034): EX Sleeve, H80915, H80916, H80987, H80990, EX-C, H80940,
`
`H80949, EXPress, H80908, H81006, H81008, H81045, H81070, OH MP, H81027,
`
`and H81029 for sliding sleeves; OH Packers, H40936, RE Packers, H30187,
`
`H30192, and H30407 for packers; and “Balls,” H81020, H81021, and H81022 for
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`36641464.1
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`6
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`Case IPR2016-00598
`Patent 7,861,774
`fluid conveyed sealing devices; and (ii) each of BH00001776, BH00125568,
`
`BH00188257, BH00125568, and BH00188257 – FRE 801(c), 802.
`
`Location of prior objections: Papers 28/37 at 8-10.
`
`Locations exhibit is relied upon by RC: POR at 33 (first paragraph); and, to the
`
`extent considered, Ex. 2034 (McGowen, unredacted) at pages 2/15, 3/15, 4/15, and
`
`6/15 of Ex. B.
`
`Explanation: The sliding sleeve, packer, and fluid conveyed sealing device
`
`names/numbers and “BH” documents identified above are hearsay because RC
`
`relies on them for the truth of the matters asserted – namely, that they establish that
`
`Petitioners’ products meet certain claim limitations. However, RC has not shown
`
`that any hearsay exception applies, and did not submit as exhibits any documents
`
`corresponding to the names/numbers or “BH” document on which they (and/or Mr.
`
`McGowen) relied. Therefore, such portions of Ex. 2034 should be excluded under
`
`FRE 801(c) and 802.
`
`April 14, 2017
`
`/Mark T. Garrett/
`Mark T. Garrett
`
`
`36641464.1
`
`7
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`
`
`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on April 14,
`
`2017, a complete copy of PETITIONERS’ MOTION TO EXCLUDE was served
`
`on Patent Owner’s Exclusive Licensee via email (by consent), as follows:
`
`hhamad@caldwellcc.com
`bcaldwell@caldwellcc.com
`jnemunaitis@caldwellcc.com
`gonsalves@gonsalveslawfirm.com
`rapid@caldwellcc.com
`
`
`
`/Mark T. Garrett/
`Mark T. Garrett(Reg. No. 44,699)
`
`
`
`36641464.1
`
`
`
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`
`
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