Paper No. 67
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`BAKER HUGHES, A GE COMPANY, LLC
`and
`BAKER HUGHES OILFIELD OPERATIONS, LLC,
`Petitioners
`
`v.
`
`PACKERS PLUS ENERGY SERVICES, INC.
`Patent Owner
`
`______________
`
`Case IPR2016-01506
`Patent 7,861,774
`______________
`
`
`PETITIONERS’ MOTION TO EXCLUDE
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`28763448.1
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`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 IPR2016-01506
`Patent 7,861,774
`______________
`
`
`PETITIONERS’ MOTION TO EXCLUDE
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`28763448.1
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`Case IPR2016-01506
`Patent 7,861,774
`Petitioners move to exclude the following exhibits and testimony pursuant to
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`Rule 42.64:
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`Ex. 2039 (Weatherford Presentation)
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`Objections: (1) Authentication – Federal Rule of Evidence (“FRE”) 901(a); and
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`(2) Hearsay – FRE 801(c), 802.
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`Location of prior objections: Paper 53 at 1-2.
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`Locations exhibit is relied upon by RC: Patent Owner’s Response (“POR” –
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`Paper 51/521) at 37, 42-43; and, to the extent considered, Exs. 2081/2084 and Ex.
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`2084 at 33-51/51.
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`Explanation: RC has not proven authenticity. RC has not filed a declaration of
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`any person purporting to have personal knowledge of Ex. 2039, nor presented any
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`other evidence of Ex. 2039’s authenticity Therefore, Ex. 2039 should be excluded
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`under FRE 901.
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`
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`In addition, whatever portions2 of Ex. 2039 RC relies on are offered to prove
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`the truth of each matter asserted. On page 37 of its POR, RC cites Ex. 2039 to
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`support its assertion that Weatherford sells and markets a competing system using
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`an open hole ball drop system. Similarly, on pages 42-43 of its POR, RC cites Ex.
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`1 Paper 51 is the unredacted POR and Paper 52 is the redacted POR.
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`2 RC does not provide pinpoint cites in its POR, though it does reproduce a figure
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`on page 33/53 of Ex. 2039.
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`2039 to support its assertion that Weatherford’s advertising and marketing
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`documentation establishes a nexus between the Challenged claims and its alleged
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`commercial success. However, RC has not shown that any hearsay exception
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`applies, and has not presented the testimony of anyone with first-hand knowledge
`
`of the information from Ex. 2039 on which it relies. Therefore, Ex. 2039 (and,
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`more specifically, whatever information from Ex. 2039 RC (through its POR or its
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`expert’s declaration) relies on) should be excluded under FRE 801(c) and 802.
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`Ex. 2044 (Vikram Rao Deposition)
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`Objections: (1) Hearsay –FRE 801(c), 802; (2) Relevance – FRE 401, 402, 403.
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`Location of prior objections: Paper 533 at 3-4.
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`Locations exhibit is relied upon by RC: POR at 5-6 (citing Ex. 2044 at 78:22-
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`79:1); POR at 50-51 (citing Ex. 2044 at 66:17-67:6); and POR at 66 (citing Ex.
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`2044 at 14:13-17).
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`Explanation: Ex. 2044 is a deposition transcript of an expert (Dr. Vikram Rao) for
`
`a non-party (Weatherford) pertaining to an expert declaration that is not an exhibit
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`in this proceeding. Thus, as to this proceeding, Ex. 2044 is an out-of-court
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`3 This is Paper 53 of IPR2016-00598 (as are all papers cited in this motion, unless
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`otherwise noted), the proceeding with which the current proceeding has been
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`joined, and in which the Board ordered all papers for the current proceeding to be
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`filed.
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`proceeding. Furthermore, Rapid Completions LLC (“RC”) relies on each portion
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`of Ex. 2044 that it cites for the truth of the matter asserted. Specifically, RC cites
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`Ex. 2044 at 78:22-79:1 (POR at 5-6) to support its assertion about what claim 1
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`requires, at 66:17-67:6 (POR at 50-51) to support its assertion about what
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`Ellsworth discloses, and at 14:13-17 (POR at 66) to support its assertion about Dr.
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`Rao’s job duties. Therefore, Ex. 2044 should be excluded under FRE 801(c) and
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`802 as inadmissible hearsay.
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`Petitioners did not present Dr. Rao as an expert in this proceeding, and
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`neither party filed the declaration about which he testified as an exhibit in this
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`proceeding. The transcript of his deposition about that declaration is therefore
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`irrelevant under FRE 401 and inadmissible under FRE 402. Regardless,
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`Petitioners did not have an opportunity to cross-examine Dr. Rao as Patent Owner
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`did. Therefore, RC’s reliance on this exhibit is substantially outweighed by the
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`danger of unfair prejudice to Petitioners and should be excluded under FRE 403.
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`Ex. 2047 (Rystad Energy report)
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`Objections: (1) Authentication – FRE 901(a); (2) Hearsay – FRE 801(c), 802; and
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`(3) Relevance – FRE 401, 402, and 403.
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`Location of prior objections: Paper 53 at 6-7.
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`Locations exhibit is relied upon by RC: POR at 30-31, 40; and, to the extent
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`considered, Exs. 2050/2051 at 45:25-29, and Exs. 2081/2084 at 26:15-27:5.
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`Explanation: RC has not proven authenticity. RC filed a declaration by its
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`paralegal (Ex. 2082 at ¶¶ 1, 2), purporting to authenticate Ex. 2047 (Ex. 2082 at
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`¶ 11), but failed to establish a foundation that would enable Mr. Delaney to
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`competently testify about the exhibit’s authenticity. The fact that Petitioners
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`produced Ex. 2047 in litigation is irrelevant. See POR at 30. Furthermore, Mr.
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`McGowen also took no steps to authenticate or otherwise verify the Ex. 2047
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`information on which he relied. Ex. 1131 at 142:7-145:17.4 Therefore, Ex. 2047
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`should be excluded under FRE 901.
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`In addition, whatever portions5 of Ex. 2047 RC relies on are offered to prove
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`the truth of each matter asserted. On pages 30-31 of its POR, RC cites Ex. 2047 to
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`support its assertion that its system was the first in the industry. See also Ex. 1131
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`at 151:5-24. Similarly, on page 40 of its POR, RC cites Ex. 2047 to support its
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`assertion that “the market for this technology … has overtaken competing
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`fracturing methods” in one formation and grown in other formations. See also Ex.
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`4 The exhibit discussed during this deposition – Ex. 2021 of IPR2016-00598 – is
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`identical to Ex. 2047. Likewise, the declaration referenced by Mr. McGowen
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`during this deposition (Ex. 2034) is identical to Ex. 2050.
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`5 RC does not provide pinpoint cites in its POR, though its expert asserted that
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`pages 2 and 10 of 14 were the source of his testimony. See Ex. 1131 at 142:7-
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`151:24.
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`1131 at 143:1-144:21 and 148:16-151:4. However, RC has not shown that any
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`hearsay exception applies, and has not presented the testimony of anyone with
`
`first-hand knowledge of the information from Ex. 2047 on which it relies.
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`Therefore, Ex. 2047 (and, more specifically, whatever information from Ex. 2047
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`RC (through its POR or its expert’s declarations) relies on) should be excluded
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`under FRE 801(c) and 802.
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`Finally, RC has not shown in its POR that any system or technology (or use
`
`of same) from Ex. 2047 on which it relies is covered by any Challenged Claim.
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`See also Ex. 1131 at 146:4-149:14. Therefore, Ex. 2047 (and, more specifically,
`
`whatever information from Ex. 2047 RC (through its POR or its expert’s
`
`declarations) relies on) is irrelevant under FRE 401 and inadmissible under FRE
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`402. Exhibit 2047 should also be excluded under FRE 403 because allowing RC to
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`rely on Ex. 2047, despite RC not showing that the relied-on aspects are covered by
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`a Challenged Claim, would be unfairly prejudicial to Petitioners.
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`Exs. 2050 and 2051 (unredacted and redacted McGowen Declarations)
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`Objections: Hearsay as to (i) each sliding sleeve, packer, and fluid conveyed
`
`sealing device name and number referenced in the claim 1 chart of Exhibit B (to
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`Exs. 2050/2051): EX Sleeve, H80915, H80916, H80987, H80990, EX-C, H80940,
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`H80949, EXPress, H80908, H81006, H81008, H81045, H81070, OH MP, H81027,
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`and H81029 for sliding sleeves; OH Packers, H40936, RE Packers, H30187,
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`H30192, and H30407 for packers; and “Balls,” H81020, H81021, and H81022 for
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`fluid conveyed sealing devices; and (ii) each of BH00001776, BH00125568,
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`BH00188257, BH00125568, and BH00188257 – FRE 801(c), 802; and Lack of
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`Foundation as to (i) each sliding sleeve, packer, and fluid conveyed sealing device
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`name and number referenced in the claim charts of Exhibit B (to Exs. 2050/2051)
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`that supports RC’s contentions about claims 24 and 27: EX Sleeve, H80915,
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`H80916, H80987, H80990, EX-C, H80940, H80949, EXPress, H80908, H81006,
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`H81008, H81045, H81070, OH MP, H81027, and H81029 for sliding sleeves; OH
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`Packers, H40936, RE Packers, H30187, H30192, and H30407 for packers; and
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`“Balls,” H81020, H81021, and H81022 for fluid conveyed sealing devices; and
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`(ii)
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`each of BH00001776, BH00125568, BH00188257, BH00125568,
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`BH00188257, BH00001986, and BH00000949 – 37 C.F.R. § 42.65.
`
`Location of prior objections: Paper 53 at 8-13.
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`Locations exhibit is relied upon by RC: POR at 26 and 35 (citing Ex. B of Ex.
`
`2050); and, to the extent considered, Exs. 2050/2051 at pages 2/15, 3/15, 4/15, and
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`6/15 of Ex. B.
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`Explanation: The sliding sleeve, packer, and fluid conveyed sealing device
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`names/numbers and “BH” documents identified above are hearsay because RC
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`relies on them for the truth of the matters asserted – namely, that they establish that
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`Petitioners’ products meet certain claim limitations. However, RC has not shown
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`that any hearsay exception applies, and did not submit as exhibits any documents
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`corresponding to the names/numbers or “BH” document on which they (and/or Mr.
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`McGowen) relied. Therefore, such portions of Exs. 2050/2051 should be excluded
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`under FRE 801(c) and 802.
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`RC also did not meet the requirement of 37 C.F.R. § 42.65 to disclose the
`
`underlying facts or data on which the opinion is based by failing to submit as
`
`exhibits any documents corresponding to the names/numbers or “BH” document
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`on which they (and/or Mr. McGowen) relied. Therefore, such portions of Exs.
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`2050/2051 should be excluded under 37 C.F.R. § 42.65.
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`Ex. 2052 (Baker Hughes Design Documents)
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`Objection: Relevance – FRE 401 and 402.
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`Location of prior objection: Paper 53 at 13-14.
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`Locations exhibit is relied upon by RC: POR at 32-33; and, to the extent
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`considered, Exs. 2081/2084 at section 11.2.
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`Explanation: RC has not shown that anything in Ex. 2052 makes it more probable
`
`that Petitioners copied the claimed technology. RC relies on only two pages of this
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`exhibit (BH00363833 and BH00363820) to assert that Petitioners obtained “a
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`confidential Packers Plus document while [Petitioners] were designing their own
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`competing system” (POR at 32 (emphasis added)) and “actually developed their
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`own system by copying Packers Plus” (POR at 34-35). But RC offers no evidence
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`of when Petitioners were in possession of BH00363820 or when Petitioners were
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`“designing their own competing system.” Moreover, neither Petitioners’ FracPoint
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`system on which RC relies or Packers Plus’s StackFRAC system allegedly shown
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`in Exs. 2052 and 2053 is more similar to the system recited in any of the
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`challenged method claims than is the Lane Wells-Ellsworth prior art system. See
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`Petition (Paper 1 in IPR2016-01506) at 26-57 (addressing claims 1-16); compare
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`Exs. 2050/2051 claim 1 charts for StackFRAC and FracPoint systems; see also Ex.
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`1131 at 64:1-65:25, 67:5-9 (StackFRAC system meets claim 1 structure), 71:10-
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`72:23 (FracPoint system meets claim 1 structure);6 Ex. 1133 at 121:11-124:1
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`(agreeing that the Lane Wells-Ellsworth system meets the limitations of the
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`asserted ’774 Patent claims). Therefore, Ex. 2052 should be excluded under FRE
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`401 and 402.
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`Ex. 2053 (Packers Plus Design Document)
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`Objection: Authentication – FRE 901(a); Relevance – FRE 401 and 402.
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`Location of prior objections: Paper 53 at 14-15.
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`6 The term “tubing string” was used in questioning to indicate structure because
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`Mr. McGowen did not understand what “structural limitations” or “limitations”
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`were. See Ex. 1131 at 62:11-63:25; see also id. at 33:20-25 (reflects meaning of
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`“tubing string”).
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`Locations exhibit is relied upon by RC: POR at 33-34; and, to the extent
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`considered, Exs. 2081/2084 at section 11.2.
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`Explanation: RC has not proven authenticity. RC filed a declaration by its
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`paralegal (Ex. 2082 at ¶¶ 1, 2), purporting to authenticate Ex. 2053 (Ex. 2082 at
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`¶ 13), but failed to establish a foundation that would enable Mr. Delaney to
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`competently testify about the exhibit’s authenticity. Therefore, Ex. 2053 should be
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`excluded under FRE 901.
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`Furthermore, RC has not shown that anything in Ex. 2053 makes it more
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`probable that Petitioners copied the claimed technology. RC compares Ex. 2053 to
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`page BH00363820 of Ex. 2052 to support its assertions that Petitioners obtained “a
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`confidential Packers Plus document while [Petitioners] were designing their own
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`competing system” (POR at 32 (emphasis added)) and “actually developed their
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`own system by copying Packers Plus” (POR at 34-35). But RC offers no evidence
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`of when Petitioners were in possession of BH00363820, or of when Petitioners
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`were “designing their own competing system.” Moreover, neither Petitioners’
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`FracPoint system on which RC relies or Packers Plus’s StackFRAC system
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`allegedly shown in Exs. 2052 and 2053 is more similar to the system recited in any
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`of the challenged method claims than is the Lane Wells-Ellsworth prior art system.
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`See Petition (Paper 1 in IPR2016-01506) at 26-57 (addressing claims 1-16);
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`compare Exs. 2050/2051 claim 1 charts for StackFRAC and FracPoint systems;
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`see also Ex. 1131 at 64:1-65:25, 67:5-9 (StackFRAC system meets claim 1
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`structure), 71:10-72:23 (FracPoint system meets claim 1 structure); Ex. 1133 at
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`121:11-124:1 (agreeing that the Lane Wells-Ellsworth system meets structural
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`limitations of ’774 Patent claims). Therefore, Ex. 2052 should be excluded under
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`FRE 401 and 402.
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`Ex. 2054 (Article Regarding Schlumberger)
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`Objections: (1) Authentication as to entire document – FRE 901(a); (2) Hearsay
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`as to (i) the portion(s) of the document on which RC relies to establish that “the
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`largest oil and gas service company in the world—Schlumberger—opted to work
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`with Packers Plus to provide this technology” (POR at 31); and (ii) the portion(s)
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`of the document on which RC relies to establish that Schlumberger “desire[d] to
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`obtain rights to the technology” (id.) – FRE 801(c), 802.
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`Location of prior objections: Paper 53 at 15-16.
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`Locations exhibit is relied upon by RC: POR at 31; and, to the extent
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`considered, Exs. 2050/2051 at section 14.7 on page 46.
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`Explanation: RC has not proven authenticity. RC filed a declaration by its
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`paralegal (Ex. 2082 at ¶¶ 1, 2), purporting to authenticate Ex. 2054 (Ex. 2082 at
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`¶ 14), but failed to establish a foundation that would enable Mr. Delaney to
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`competently testify about the exhibit’s authenticity. Therefore, Ex. 2054 should be
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`excluded under FRE 901.
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`In addition, the portion(s) of the document on which RC relies to establish
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`that “the largest oil and gas service company in the world—Schlumberger—opted
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`to work with Packers Plus to provide this technology” (POR at 31) are hearsay
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`because they are offered for the truth of the matter asserted – namely, that
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`Schlumberger opted to work with Packers Plus to provide the Packers Plus
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`technology that RC contends is relevant to industry praise. Similarly, the
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`portion(s) of the document on which RC relies to establish that Schlumberger
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`“desire[d] to obtain rights to the technology” (id.) are also hearsay because they are
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`offered for the truth of the matter asserted – namely, that Schlumberger desired to
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`obtain rights to the technology, which RC asserts supports its industry praise
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`argument. However, RC has not shown that any hearsay exception applies, and
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`has not presented the testimony of anyone with first-hand knowledge of any
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`agreement between Schlumberger and Packers Plus or of any Schlumberger’s
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`“desire” relating to any such agreement. Therefore, such portion(s) of Ex. 2054
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`should be excluded under FRE 801(c) and 802.
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`Exs. 2081 and 2084 (unredacted and redacted McGowen Supp. Declaration)
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`Objections: Relevance as to opinions set forth in Section 9 on pages 11-19/29
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`(discussing invalidity theories proposed by a third party in different proceeding), in
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`subsection 11.1 on page 22/29 (discussing Weatherford’s ZoneSelect system), and
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`in subsection 11.2 at 22:23-24:7 of pages 22-24/29 (discussing success of Baker
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`Hughes FracPoint system) of Ex. 2081, and in pages 33-51/51 of Ex. 2081– FRE
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`401 and 402. Lack of Foundation as to opinions set forth in pages 33-51/51 of
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`Ex. 2081 – 37 C.F.R. § 42.65.
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`Location of prior objections: Paper 53 at 29-36.
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`Locations exhibit is relied upon by RC: RC references only “§ 11” of Ex. 2081
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`on POR at 39.
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`Explanation: The opinions set forth in Section 9 are irrelevant to this proceeding
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`because they address invalidity theories presented by a party that is not a party to
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`this proceeding. They are therefore inadmissible under FRE 401 and 402.
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`
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`The above-described opinions set forth in subsections 11.1 and 11.2 and
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`pages 33-51/51 of Ex. 2081 are also irrelevant under FRE 401 and 402 because
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`they address only two systems (Weatherford’s ZoneSelect and Petitioners
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`FracPoint systems) that Mr. McGowen did not show were used in the performance
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`of the challenged method claims. See Ex. 1133/1138 at 124:2-17 (ZoneSelect) and
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`124:18-128:15 (FracPoint). Mr. McGowen’s purported mapping of claim 1 of the
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`Challenged Claims to the ZoneSelect system (Ex. 2081 at 33-51/51) provides no
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`evidence of any actual use of that system (as required by each Challenged Claim)
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`nor attempts to tie the single image cropped from Ex. 2039 therein to any of his
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`market share allegations at 22:16-22 (on page 22/29 of Ex. 2081). See Ex.
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`1133/1138 at 124:2-17.
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`RC also did not disclose the underlying facts or data on which the above-
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`described opinions set forth in pages 33-51/51 of Ex. 2081 are based because it did
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`not submit as exhibits any documents corresponding to any of the Weatherford
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`components specified. Therefore, such opinions should be excluded under 37
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`C.F.R. § 42.65.
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`Ex. 2082 (Delaney Declaration)
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`Objections: Relevance – FRE 401, 402, and 403; Foundation – FRE 601.
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`Location of prior objections: Paper 53 at 36-37.
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`Locations exhibit is relied upon by RC: None.
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`Explanation: RC does not rely on Ex. 2082 in its POR or in any expert
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`declaration submitted with its POR. Ex. 2082 should therefore be excluded as
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`irrelevant under FRE 401 and 402 and otherwise unfairly prejudicial under FRE
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`403.
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`Ex. 2082 is a declaration from a paralegal for counsel for RC (Ex. 2082 at ¶¶
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`1, 2) purporting that 37 different third-party documents upon which RC relies are
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`“true and correct copies” of what Mr. Delaney describes them to be. Ex. 2082 at
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`¶¶ 3-39. However, RC has not provided any evidence (such as within Ex. 2082
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`itself) that demonstrates the bases for Mr. Delaney’s contentions that Exs. 2047,
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`2053, and 2054 are true and correct copies of what he describes them to be,
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`including whether and how Mr. Delaney has personal knowledge that Ex. 2047
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`“was produced by Baker Hughes in the litigation” (2082 at ¶ 11), that Ex. 2053 is a
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`“Packers Plus Design Document” (2082 at ¶ 13), and that Ex. 2054 was “accessed
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`from the URL identified in the exhibit on the date noted on the exhibit” (2082 at ¶
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`14). Ex. 2082, and at least the paragraphs 11, 13, and 14 thereof, should therefore
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`also be excluded under FRE 601.
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`Exs. 2074 (Yuan), 2078 (Abass), 2079 (Damgaard), 2092 (Rao 2007), 2093 (Rao
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`2005), 2098 (Austin), and 2099 (Owens)
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`Objections: Hearsay – FRE 801(c), 802.
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`Location of prior objections: Paper 53 at 26-27, 29, 40-43.
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`Locations exhibit is relied upon by RC: POR at 16 (citing Ex. 2092 at 2, Ex.
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`2093 at 1), 20-21 and 64 (citing Ex. 2078 at 2, Ex. 2079, Ex. 2098 at 1, 2099 at 2),
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`39-40 and 42-43 (citing Ex. 2074); and, to the extent considered, Exs. 2081/Ex.
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`2084 at 20:8-21:3, 21:4-22:2, and 29:2-9.
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`Explanation: The portions of these exhibits cited above in the POR are offered to
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`prove the truth of each matter asserted. On POR page 16, RC cites to Exs. 2092
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`and 2093 to support its assertions that “the oil and gas industry is ‘basically
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`conservative’ with respect to adopting new technologies” (Ex. 2092) and that the
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`oil and gas industry has been slow to adopt new technologies (Ex. 2093). On pages
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`39-40 and 42-43 of its POR, RC cites to Ex. 2074 to support its assertion that
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`Weatherford’s ZoneSelect system accounts for twelve percent of its fracture
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`system sales. On pages 20-21 and 64 of its POR, RC cited to Exs. 2078, 2079,
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`2098 and 2099 to support its assertions that pre-invention wisdom was, in fact, that
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`effective fracturing required cementing casing. However, RC has not shown that
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`any hearsay exception applies, and has not presented the testimony of anyone with
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`first-hand knowledge of the information from Exs. 2074, 2078, 2079, 2092, 2093,
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`2098, and 2099 on which it relies. Therefore, these exhibits should be excluded
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`under FRE 801(c) and 802.
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`Ex. 2100 (Murray)
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`Objections: Relevance – FRE 401, 402, and 403.
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`Location of prior objections: Paper 53 at 43-44.
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`Locations exhibit is relied upon by RC: None.
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`Explanation: Ex. 2100 is not cited in the POR and is therefore inadmissible and
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`should be excluded as irrelevant under FRE 401 and 402 and/or as unfairly
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`prejudicial (given its absence from the POR) under FRE 403.
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`September 28, 2017
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`/Mark T. Garrett/
`Mark T. Garrett
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`28763448.1
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`15
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`
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`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on September
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`28, 2017, a complete copy of PETITIONERS’ MOTION TO EXCLUDE was
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`served on Patent Owner’s Exclusive Licensee via email (by consent), as follows:
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`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)
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`
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`28763448.1
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