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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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`WEATHERFORD INTERNATIONAL, LLC;
`WEATHERFORD/LAMB, INC.;
`WEATHERFORD US, LP; and WEATHERFORD
`ARTIFICIAL LIFT SYSTEMS, LLC
`Petitioners
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`v.
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`PACKERS PLUS ENERGY SERVICES, INC.,
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`Patent Owner
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`_
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`Inter Partes Review No. IPR2016-01509
`Patent 7,861,774
`_
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`PETITIONERS’ OBJECTIONS TO PATENT OWNER’S EXPERT
`DECLARATIONS PURSUANT TO 37 C.F.R. § 42.64(b)(1)
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`
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`IPR2016-01509
`Patent 7,861,774
`Under the Federal Rules of Evidence and 37 C.F.R. § 42.64, Petitioners
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`Weatherford International LLC, et al. (hereinafter, “Petitioners”) timely1 object to
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`evidence submitted by Exclusive Licensee Rapid Completions (hereinafter, “Patent
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`Owner”) in the form of expert testimony of Harold E. McGowen, III. Petitioners serve
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`Patent Owner with these objections to provide notice that Petitioners may move to
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`exclude the challenged exhibits under 37 C.F.R. § 42.64(c) unless Patent Owner cures
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`the defects associated with the challenged exhibit identified below.
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`Exhibits 2051 and 2081
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`Exhibit 2051 is the December 2, 2016 expert declaration of Harold E.
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`McGowen, III.
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`In section 14.4 of Exhibit 2051, Mr. McGowen expresses opinions
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`regarding alleged commercial success of the ’774 claims based on alleged sales of
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`embodiments of the ’774 claims by Baker Hughes. Ex. 2051 at 45-46 of 94. Similarly,
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`1 Petitioners note that the present Objections are timely as they are being served
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`and filed within five business days of receipt of the official transcript of the Oral
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`Deposition of Harold E. McGowen III, filed on August 16, 2017 as Exhibit 1038. The
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`basis under which Petitioners object to Exhibits 2051 and 2081 came to light during
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`Mr. McGowen's deposition. See, e.g., Ex. 1038 at 163:8-25. Furthermore, Petitioners
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`previously reserved the right to object to Exs. 2051 and 2081 pending this deposition.
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`Paper 34 at 5, 18.
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`1
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`
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`IPR2016-01509
`Patent 7,861,774
`in Exhibit 2081, which is the May 31, 2017 expert declaration of Harold E. McGowen,
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`III, Mr. McGowen again opines on alleged commercial success of Baker Hughes’s
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`systems in section 11.2. Ex. 2081 at 25-27 of 42.
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`Petitioners object to section 14.4 of Exhibit 2051 and section 11.2 of Ex. 2081
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`under Federal Rules of Evidence 702 and 705 because Mr. McGowen testified at his
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`deposition that he bases his opinions on alleged commercial success by Baker Hughes
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`on internal Baker Hughes data that is not available to Petitioners in violation of Federal
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`Rule of Evidence 705. McGowen Tr. at 163:8-25 (Ex. 1038, filed on August 16,
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`2017). Thus, Mr. McGowen’s opinions provided in section 14.4 of Exhibit 2051 and
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`section 11.2 of Ex. 2081 are inadmissible because his declarations do not set forth the
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`basis for his opinions of commercial success based on Baker Hughes’s sales and
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`because the basis for those opinions has not been produced, such that Petitioners have
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`no way to adequately cross examine Mr. McGowen on these opinions; Riffenburg by
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`Riffenburg v. Michigan, No. 5:96-cv-99, 1998 U.S. Dist. LEXIS 15622, at *56 (W.D.
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`Mich. Sept. 3, 1998) (“The Riffenburgs also fail to grasp that the court can and will
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`require the facts underlying any such opinion to be disclosed, pursuant to Fed. R. Evid.
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`705. Our adversary system does not entitle a party to retain the ‘confidentiality’ of
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`data supporting opinion testimony.”); see also PTAB Trial Practice Guide § II(A)(4)
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`(“Affidavits expressing an opinion of an expert must disclose the underlying facts or
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`data upon which the opinion is based.”); 37 C.F.R. § 42.65. Additionally, because
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`2
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`IPR2016-01509
`Patent 7,861,774
`Patent Owner has failed to produce the facts and data underlying Mr. McGowen’s
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`opinions regarding alleged commercial success by Baker Hughes, Patent Owner
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`cannot establish that the opinions are based on sufficient facts or data, that the opinions
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`are the product of reliable principles and methods, or that the expert has reliably
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`applied the principles and methods to the facts of this case. As a result, Patent Owner
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`cannot establish that Mr. McGowen’s expert testimony regarding alleged commercial
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`success by Baker Hughes is admissible under Federal Rule of Evidence 702.
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`Petitioners also object to section 14.4 of Ex. 2051 and section 11.2 of Ex. 2081
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`as being irrelevant under Fed. R. Evid. 401 and thus inadmissible under Fed. R. Evid.
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`402, or as being confusing or a waste of time under Fed. R. Evid. 403 because these
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`expert opinions are inadmissible under Fed. R. Evid. 702, would be prejudicial if
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`admitted, and are not otherwise admissible evidence.
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`Dated: August 17, 2017
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`Respectfully submitted,
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`/Jason Shapiro/
`Jason Shapiro, Reg. No. 35,354
`Counsel for Petitioners
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`3
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`
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`CERTIFICATE OF SERVICE
`I certify that the foregoing PETITIONERS’ OBJECTIONS TO PATENT
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`OWNER’S EXPERT DECLARATIONS PURSUANT TO 37 C.F.R. § 42.64(b)(1)
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`and the present CERTIFICATE OF SERVICE were served August 17, 2017 via
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`electronic mail, as previously consented to by Patent Owner, upon the following
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`counsel of record:
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`HAMAD M. HAMAD (LEAD COUNSEL)
`BRADLEY W. CALDWELL (BACK-UP COUNSEL)
`JUSTIN NEMUNAITIS (BACK-UP COUNSEL)
`CALDWELL CASSADY CURRY P.C.
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`hhamad@caldwellcc.com
`bcaldwell@caldwellcc.com
`jnemunaitis@caldwellcc.com
`rapid@caldwellcc.com
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`DR. GREGORY J. GONSALVES (BACK-UP COUNSEL)
`GONSALVES LAW FIRM
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`gonsalves@gonsalveslawfirm.com
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`Dated: August 17, 2017
`EDELL, SHAPIRO & FINNAN, LLC
`9801 Washingtonian Blvd., Suite 750
`Gaithersburg, MD 20878
`Customer No. 27896
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`Respectfully submitted:
`/Mark J. DeBoy/
`Mark J. DeBoy, Reg. No. 66,983
`Telephone: 301.424.3640
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`