UNITED STATES PATENT AND TRADEMARK OFFICE
`
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`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
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`
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`BAKER HUGHES INCORPORATED AND BAKER HUGHES OILFIELD
`OPERATIONS, INC.,
`Petitioners
`
`v.
`
`PACKERS PLUS ENERGY SERVICES INC.
`Patent Owner
`
`
`
`Case IPR2016-00598
`U.S. Patent No. 7,861,774
`
`
`
`
`
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`
`
`PETITIONERS’ OBJECTIONS TO PATENT OWNER’S RESPONSE
`EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
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`36475360.2
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`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
`U.S. Patent No. 7,861,774
`
`
`
`
`
`
`
`
`PETITIONERS’ OBJECTIONS TO PATENT OWNER’S RESPONSE
`EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
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`36475360.2
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`
`
`Case IPR2016-00598
`Patent 7,861,774
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`
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Baker Hughes Incorporated and Baker
`
`Hughes Oilfield Operations, Inc. (“Petitioners”) serve the following objections to
`
`Patent Owner’s Response exhibits. These objections are being timely served on
`
`Objections
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R. Evid.
`802. To the extent Patent Owner relies on this
`exhibit to prove the truth of matters described
`therein, the statements are hearsay. Patent
`Owner has not offered evidence sufficient to
`demonstrate that the exhibit falls within any
`exceptions to the rule against hearsay.
`Relevance. Fed. R. Evid. 401-403. This exhibit is
`not relevant to any issue in this IPR proceeding,
`and any probative value of the exhibit is
`substantially outweighed by unfair prejudice and
`a waste of time, particularly because there are no
`particular portions of this exhibit cited in Patent
`Owner’s Response.
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R. Evid.
`802. To the extent Patent Owner relies on this
`
`1
`
`December 9, 2016.
`
`
`
`Ex. Number and Patent
`Owner Description
`2017. Packers Plus advertising
`brochure (2010)
`
`2018. Baker Hughes, “Fracpoint
`Completion System
`Isolated Openhole
`Horizontal Well in Lower
`Huron Shale” (2011)
`
`
`
`36475360.2
`
`
`
`Case IPR2016-00598
`Patent 7,861,774
`
`Objections
`
`exhibit to prove the truth of matters described
`therein, the statements are hearsay; e.g., that
`FracPoint “eliminated the need for cementing the
`liner, coiled tubing operations, and wireline
`operations, while significantly reducing overall
`pumping time.” Patent Owner has not offered
`evidence sufficient to demonstrate that the
`exhibit falls within any exceptions to the rule
`against hearsay.
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R. Evid.
`802. To the extent Patent Owner relies on this
`exhibit to prove the truth of matters described
`therein, the statements are hearsay; e.g., that
`FracPoint “employs the same components as
`shown below.” See POR at 33-34. Patent Owner
`has not offered evidence sufficient to
`demonstrate that the exhibit falls within any
`exceptions to the rule against hearsay.
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R. Evid.
`802. To the extent Patent Owner relies on this
`exhibit to prove the truth of matters described
`therein, the statements are hearsay; e.g., that
`“Dan Themig, President of Packers Plus, was an
`early innovator in the development of modern
`hydraulic fracturing technologies, enabling the
`
`Ex. Number and Patent
`Owner Description
`
`2019. Baker Hughes,
`“Enhancing Well
`Performance Through
`Innovative Completion
`Technologies,”
`presentation, (Sept. 10-
`12, 2012)
`
`
`
`2020. Canadian Society for
`Unconventional
`Resources, Press Release,
`“Unconventional Industry
`Awards Innovative
`Thinking” (Oct. 3, 2012)
`
`36475360.2
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`2
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`
`
`Ex. Number and Patent
`Owner Description
`
`2021. BH00364675,
`CONFIDENTIAL Ball
`activated sliding sleeves
`report
`
`2022. Rigzone, Schlumberger
`Acquires Stake in Packers
`Plus (Nov. 22, 2005)
`
`Case IPR2016-00598
`Patent 7,861,774
`
`Objections
`
`recovery of oil and gas from shale and similarly
`challenging hydrocarbon reservoirs, particularly
`using horizontal wells.” Patent Owner has not
`offered evidence sufficient to demonstrate that
`the exhibit falls within any exceptions to the rule
`against hearsay.
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R. Evid.
`802. To the extent Patent Owner relies on this
`exhibit to prove the truth of matters described
`therein, the statements are hearsay: e.g., at 6
`(shown over the year 2001, “Packer Plus [sic]
`introduces the StackFrac”); at 10 (graph). Patent
`Owner has not offered evidence sufficient to
`demonstrate that the exhibit falls within any
`exceptions to the rule against hearsay.
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R. Evid.
`802. To the extent Patent Owner relies on this
`exhibit to prove the truth of matters described
`therein, the statements are hearsay: e.g., at ¶ 1
`(“Schlumberger has acquired a minority share in
`Packers Plus Energy Services” and “Mark
`Corrigan, president, Well Services,
`Schlumberger said ‘The Packers Plus technology
`will enable Schlumberger to tailor stage
`treatment designs to yield better production
`
`36475360.2
`
`3
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`
`
`Ex. Number and Patent
`Owner Description
`
`2023. Britt, L. and Smith, M.,
`Horizontal Well
`Completion, Stimulation
`Optimization, and Risk
`Mitigation, SPE 125526
`(2009)
`
`2024. BH00363808,
`CONFIDENTIAL Baker
`Hughes Engineering
`Materials
`
`Case IPR2016-00598
`Patent 7,861,774
`
`Objections
`
`results for our customers while also making
`significant improvements in operational
`efficiencies”); at ¶ 2 (stating that Mark Corrigan
`stated “Packers Plus has established an industry
`leading reputation with their systems, which
`when combined with our services, offers a
`powerful solution”). Patent Owner has not
`offered evidence sufficient to demonstrate that
`the exhibit falls within any exceptions to the rule
`against hearsay.
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R. Evid.
`802. To the extent Patent Owner relies on this
`exhibit to prove the truth of matters described
`therein, the statements are hearsay: e.g., at 9
`(“Many open hole horizontal wellbores utilize
`external casing packers (Packers Plus and Frac
`Point) to exert some, albeit limited, control over
`the completion and stimulation staging.”). Patent
`Owner has not offered evidence sufficient to
`demonstrate that the exhibit falls within any
`exceptions to the rule against hearsay.
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R. Evid.
`802. To the extent Patent Owner relies on this
`exhibit to prove the truth of matters described
`therein, the statements are hearsay: e.g., at
`
`36475360.2
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`4
`
`
`
`Ex. Number and Patent
`Owner Description
`
`2025. RC_PAC00019434,
`CONFIDENTIAL
`Packers Plus Engineering
`Drawing
`
`2026. Baker Hughes 2008 10-K
`Shareholder Report
`
`Case IPR2016-00598
`Patent 7,861,774
`
`Objections
`
`363833 (that Packers Plus system has a “proven
`system”); at 363820 (document). Patent Owner
`has not offered evidence sufficient to
`demonstrate that the exhibit falls within any
`exceptions to the rule against hearsay.
`Relevance. Fed. R. Evid. 401-403. This exhibit is
`not relevant to any issue in this IPR proceeding,
`and any probative value of the exhibit is
`substantially outweighed by unfair prejudice and
`a waste of time, particularly because Patent
`Owner has not established that Petitioners’
`possession of 363820 preceded Petitioners’
`development of the system alleged to be a copy
`of the claimed invention.
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`Relevance. Fed. R. Evid. 401-403. This exhibit is
`not relevant to any issue in this IPR proceeding,
`and any probative value of the exhibit is
`substantially outweighed by unfair prejudice and
`a waste of time, particularly because Patent
`Owner has not established that Petitioners’
`possession of Ex. 2024 (363820) preceded
`Petitioners’ development of the system alleged to
`be a copy of the claimed invention.
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`
`2027. Baker Hughes 2010 10-K Authentication. Fed. R. Evid. 901(a). Patent
`
`36475360.2
`
`5
`
`
`
`Ex. Number and Patent
`Owner Description
`Shareholder Report
`
`2028. Baker Hughes 201310-K
`Shareholder Report
`
`2029. Packers Plus case study,
`StackFRAC system
`provides superior
`production economies
`
`Case IPR2016-00598
`Patent 7,861,774
`
`Objections
`
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R. Evid.
`802. To the extent Patent Owner relies on this
`exhibit to prove the truth of matters described
`therein, the statements are hearsay: e.g., that
`“Packers Plus StackFRAC systems use
`RockSEAL hydraulically set mechanical packers
`to isolate zones together with ball-actuated,
`hydraulically activated FracPORT sleeves to
`provide access to the formation. . . . In contrast,
`CLPP completions require cementing of the
`casing, pumping down bridge plugs to isolate
`section, followed by repeated perforating and
`fracturing in each zone for the number of stages
`requiring stimulation.” Patent Owner has not
`offered evidence sufficient to demonstrate that
`the exhibit falls within any exceptions to the rule
`against hearsay.
`
`2030. Packers Plus Case Study,
`StackFRAC HD system
`enables high stimulation
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`
`36475360.2
`
`6
`
`
`
`Ex. Number and Patent
`Owner Description
`rates
`
`2031. Packers Plus StackFRAC
`Video,
`http://packerplus.com/
`solutions/stackfrac-hd-
`system/
`
`2032. Baker Hughes FracPoint
`Video,
`http://www.youtube.com/
`watch?v=s5ZQCRRZzXE
`
`Case IPR2016-00598
`Patent 7,861,774
`
`Objections
`
`correct copy of what Patent Owner purports it to
`be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R. Evid.
`802. To the extent Patent Owner relies on this
`exhibit to prove the truth of matters described
`therein, the statements are hearsay: e.g., that
`“[t]he Packers Plus StackFRAC system is an
`open hole, multi-stage ball-drop completion that
`has been used in over 180 formation worldwide.”
`Patent Owner has not offered evidence sufficient
`to demonstrate that the exhibit falls within any
`exceptions to the rule against hearsay.
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R. Evid.
`802. To the extent Patent Owner relies on this
`exhibit to prove the truth of matters described
`therein, the statements are hearsay. Patent Owner
`has not offered evidence sufficient to
`demonstrate that the exhibit falls within any
`exceptions to the rule against hearsay.
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R. Evid.
`802. To the extent Patent Owner relies on this
`exhibit to prove the truth of matters described
`therein, the statements are hearsay: e.g., “[T]his
`system also eliminates the need to cement the
`
`36475360.2
`
`7
`
`
`
`Ex. Number and Patent
`Owner Description
`
`2033. Business News Network
`Packers Plus Feature
`
`2034. UN-REDACTED H.
`McGowen Declaration
`
`Case IPR2016-00598
`Patent 7,861,774
`
`Objections
`
`liner in the wellbore. Some key benefits are
`increased production, elimination of costly
`wireline operations, and lamination of costly
`pumping operations.” Patent Owner has not
`offered evidence sufficient to demonstrate that
`the exhibit falls within any exceptions to the rule
`against hearsay.
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that this exhibit is a true and
`correct copy of what Patent Owner purports it to
`be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R. Evid.
`802. To the extent Patent Owner relies on this
`exhibit to prove the truth of matters described
`therein, the statements are hearsay: e.g., “This
`Calgary based upstart has designed a downhole
`system that allows companies to fracture or frac
`their wells with accuracy undreamed of just a
`few years ago”; “After we started using Packers
`Plus technology we were getting twice the
`production, twice the reserves, and triple the
`value.” Patent Owner has not offered evidence
`sufficient to demonstrate that the exhibit falls
`within any exceptions to the rule against hearsay.
`
`Authentication. Fed. R. Evid. 901(a). Patent
`Owner has not produced evidence sufficient to
`support a finding that the references cited in this
`exhibit are true and correct copies of what Patent
`Owner or its witness purports them to be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R. Evid.
`802. To the extent Patent Owner relies on this
`exhibit to prove the truth of matters described
`therein, the statements are hearsay: for example
`
`36475360.2
`
`8
`
`
`
`Ex. Number and Patent
`Owner Description
`
`at:
`
`Case IPR2016-00598
`Patent 7,861,774
`
`Objections
`
` 10 (citing figures from different sources
`without submitting sources as exhibits or
`disclosing sources with enough
`particularity to independently verify);
`
` 18 (citing figure from third party source—
`Fig. 11—without identifying source);
`
` 19 (quoting a third party source’s—Ex.
`2038—alleged quote of an alleged a third-
`party email as allegedly “provid[ing] a
`glimpse into BP’s reasoning.”);
`
` 19 (citing “Rogers 2003”—which has not
`been submitted as an exhibit—as “the
`seminal text on the topic,” but offering no
`explanation to support the requirements of
`FRE 803(18));
`
` 19 (asserting that “it is necessary to
`consider historical failure data in an
`analogous situation” based on Calixto
`2016, which has not been submitted as an
`exhibit);
`
` 21 (citing figures from third party sources,
`Ahmad and Lloyd, that have not been
`submitted as exhibits);
`
` 22 (citing figure from unidentified third
`party source);
`
` 23 (citing figure from Ex. 2041 and
`quoting Ex. 2041 for truth of the statement
`that: “Unfavorable fracture initiation may
`cause problems with both fracture
`execution (screen-out) and with product
`
`36475360.2
`
`9
`
`
`
`Ex. Number and Patent
`Owner Description
`
`Case IPR2016-00598
`Patent 7,861,774
`
`Objections
`
`response, by harming the wellbore-to-
`fracture connection.”);
`
` 24 (citing Cramer 1987, which has not
`been submitted as an exhibit);
`
` Ex. A at 2-4, 8-9 (citing figures and
`statements from unidentified sources);
`
` Ex. B at 1-11 (citing six alleged Petitioner
`figures, a series of sleeve, packer, and ball
`names and numbers, and “BH00001776,”
`“BH00125568, BH00188257,”
`“BH00125568,” “BH00188257,”
`“BH00001986,” “BH00000949,” none of
`which were submitted as exhibits)
`
`Opinion Testimony by Lay Witness. Fed. R.
`Evid. 701(c). This exhibit contains
`impermissible expert opinion testimony by a lay
`witness in that it requires scientific, technical, or
`other specialized knowledge within the scope of
`Rule 702; for example, at:
` 19 (describing “Rogers 2003”—which has
`not been submitted as an exhibit—as “the
`seminal text on the topic,” but offering no
`explanation as to why his education or
`experience qualifies him to offer this
`opinion);
`
` 42 (opining that “[t]his volume of sales
`equates to many millions of dollars of
`revenue for BH. . . . Based on this
`marketing data, and other information I
`have reviewed related to Baker Hughes
`sales of 774 Patent infringing technology,
`and assuming the information I was
`provided is complete and accurate, Baker-
`
`36475360.2
`
`10
`
`
`
`Ex. Number and Patent
`Owner Description
`
`Case IPR2016-00598
`Patent 7,861,774
`
`Objections
`
`Hughes has accrued over . . . in revenue
`from the sale of the FracPoint Open Hole
`Multi-Stage fracturing system components
`shown in Figure 22 during the period from
`11/14/2008 to 11 01/21/2016 (or
`thereabouts),” but offering no explanation
`of why his education or experience
`qualifies him to offer the opinion).
`
` Ex. A at 10 and Ex. B at 11 (opining that
`claim terms are “governed by § 112 ¶ 6”
`without explaining an understanding of the
`laws related to 35 U.S.C. § 112 ¶ 6).
`
`Relevance. Fed. R. Evid. 401-403. This exhibit is
`not relevant to any issue in this IPR proceeding,
`and any probative value of the exhibit is
`substantially outweighed by unfair prejudice and
`a waste of time, particularly because Mr.
`McGowan has not explained why his opinions
`sufficiently relate to the patent at issue in this
`proceeding or have any bearing on any fact of
`consequence in this proceeding. For example:
` Mr. McGowan has not explained the scope
`of the “774 Patent/Invention” on which he
`opines and, thus, has not established that
`his opinions relate to the scope of what is
`actually claimed (his statement at 7:24-25
`of Ex. 2034 regarding “the technology
`claimed in at least Claim 1 of the 774
`Patent/Invention” indicates that he views
`the claims as a subset of—rather than
`coextensive with—“the 774
`Patent/Invention”);
`
` Mr. McGowan’s opinions are premised on
`the assumption that the “the 774
`
`36475360.2
`
`11
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