UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`WEATHERFORD INTERNATIONAL, LLC,
`WEATHERFORD/LAMB, INC., WEATHERFORD US, LP, and
`WEATHERFORD ARTIFICIAL LIFT SYSTEMS, LLC,
`Petitioners,
`
`v.
`
`PACKERS PLUS ENERGY SERVICES, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-01509 (Patent 7,861,774 B2)
`Case IPR2016-01514 (Patent 7,543,634 B2)
`Case IPR2016-01517 (Patent 7,134,505 B2)
`____________
`
`Record of Oral Hearing
`Held: November 2, 2017
`____________
`
`
`
`
`Before SCOTT A. DANIELS, NEIL T. POWELL, and CARL M.
`DeFRANCO, Administrative Patent Judges.
`
`
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`WEATHERFORD INTERNATIONAL, LLC,
`WEATHERFORD/LAMB, INC., WEATHERFORD US, LP, and
`WEATHERFORD ARTIFICIAL LIFT SYSTEMS, LLC,
`Petitioners,
`
`v.
`
`PACKERS PLUS ENERGY SERVICES, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-01509 (Patent 7,861,774 B2)
`Case IPR2016-01514 (Patent 7,543,634 B2)
`Case IPR2016-01517 (Patent 7,134,505 B2)
`____________
`
`Record of Oral Hearing
`Held: November 2, 2017
`____________
`
`
`
`
`Before SCOTT A. DANIELS, NEIL T. POWELL, and CARL M.
`DeFRANCO, Administrative Patent Judges.
`
`
`
`
`
`Case IPR2016-01509 (Patent 7,861,774 B2)
`Case IPR2016-01514 (Patent 7,543,634 B2)
`Case IPR2016-01517 (Patent 7,134,505 B2)
`
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`DOUGLAS WILSON, ESQUIRE
`Heimpayne & Chorush, LLP
`9442 Capital of Texas Highway North
`Plaza One, Suite 1100
`Austin, Texas 78759
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JUSTIN NEMUNAITIS, ESQUIRE
`Caldwell Cassady Curry
`2101 Cedar Springs Road
`Suite 1000
`Dallas, Texas 75201
`
`
`
`
`The above-entitled matter came on for hearing on Thursday,
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`November 2, 2017, commencing at 2:01 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2016-01509 (Patent 7,861,774 B2)
`Case IPR2016-01514 (Patent 7,543,634 B2)
`Case IPR2016-01517 (Patent 7,134,505 B2)
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`P R O C E E D I N G S
`- - - - -
`JUDGE POWELL: Good afternoon. This is the hearing for
`IPR2016-01509, IPR2016-01514 and IPR2016-01517. The 1509 case
`involves U.S. Patent 7,861,774 B2, the 1514 case involves U.S. Patent
`7,543,634 B2 and the 1517 case involves U.S. Patent 7,134,505 B2.
`In the hearing room with me I have Judge DeFranco and joining us
`via video conference we have Judge Daniels. And, Petitioner, please
`identify -- state your names for the record.
`MR. SHAPIRO: Your Honor, I'm Jason Shapiro, lead counsel,
`representing Weatherford and with me today who will be arguing the case is
`backup counsel, Doug Wilson, of the Heimpayne & Chorush firm. Also
`with us are David Morris and Bill Imwalle with Weatherford.
`JUDGE POWELL: Patent Owner?
`MR. NEMUNAITIS: Good afternoon, Your Honor. Justin
`Nemunaitis. Also with me is Greg Gonsalves, Brad Caldwell, as counsel,
`Tracey Beaudoin, in-house counsel for Packers Plus, Dan Themig, inventor
`and CEO, and Phil Mitchell with Rapid Completions. Thank you.
`JUDGE POWELL: Thank you.
`Each side will have 45 minutes. We'll start with Petitioner,
`followed by the Patent Owner's case and then the Petitioner may respond
`with its rebuttal.
`When you present, please identify each slide clearly and
`specifically and it's particularly important for Judge Daniels who can't see
`the projection here in the hearing room. We note that there are assertions of
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`improper new evidence and arguments in the record. When we prepare the
`final decisions, we will exercise vigilance for those so that we don't rely on
`anything improperly introduced newly into the case. I will take into account
`any assertions on the record about that.
`That said, for today we can -- each party can talk about anything
`that's already in the record and each party can use any of the time allotted to
`discuss their concerns that anything is new or improper, newly improper I
`should say.
`With that, are there any questions before we begin?
`(No response.)
`JUDGE POWELL: Okay. Petitioner, you have the floor and let
`me ask if you would like to reserve any rebuttal time.
`MR. WILSON: Thank you, Your Honor. Douglas Wilson for the
`Petitioner Weatherford entities. I would like to reserve 10 minutes.
`JUDGE POWELL: 10 minutes?
`MR. WILSON: That's going to be my goal.
`JUDGE POWELL: Are you ready?
`MR. WILSON: Not just yet. Give me just a second here. It
`worked fine just a minute ago. Here we go. Ready.
`JUDGE POWELL: You may begin.
`MR. WILSON: So I want to start with slide 2 of the presentation
`and I want to start by going briefly over the claims, the challenged claims
`that are at issue in the three IPRs. First of all, in the 1509 IPR we have, of
`course, the '774 challenged claims.
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`And the point that I want to reiterate and hopefully I'm not
`belaboring this point from this morning, but Claim 1, the only independent
`claim of the '774 patent recites a method for fracturing a
`hydrocarbon-containing formation. It is a method claim. It is not an
`apparatus claim and that becomes particularly important when we get to
`questions of secondary considerations of nonobviousness.
`There are four method steps that are recited in Claim 1, running a
`tubing string, expanding radially outward the first, second and third solid
`body packers, conveying a fluid-conveyed sealing device and pumping
`fracturing fluid.
`In order to show any nexus or any secondary considerations
`evidence, the Patent Owner has to show that all four of those steps are
`practiced. And as we look at the other IPRs, for example, the 634, you can
`see the one challenged claim. The single challenged claim is Claim 25. It
`depends from Claim 20, which is also a method for fluid treatment of a
`borehole. It doesn't require fracturing. It's just a method for fluid treatment
`of a borehole.
`Claim 20 is anticipated by the Thomson reference. The only
`argument for distinction of Claim 25 over Thomson is open hole, the portion
`in red there. The same is true of the '505 challenged claims, Claims 23 and
`27, and, I'm sorry, I'm on slide 4 now.
`The same is true of Claims 23 and 27 in the '505 patent. They
`depend from Claims 19 and 24 respectfully. Both recite a method for fluid
`treatment of a borehole and, again, Claims 19 and 24 are anticipated by
`Thomson. The only argument for validity for Claims 23 and 27 over
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`Thomson is open hole. So, again, we're going to see a consistent theme
`here.
`
`Because the '505 and '634 claims are significantly broader than the
`'774 claims, I'm going to focus my argument today on the '774 claims with
`the implication that if the '774 claims would have been obviousness, then
`certainly the '505 and '634 challenged claims would have been obvious.
`And I want to start today -- and in that vein all of my slides from
`this point forward, when you see an exhibit reference in the slide, are
`referencing 1509, that IPR. So that's the exhibit references.
`And I want to start today on slide 5 with Ground 2. Ground 2 has
`its base as the Thomson reference Your Honors heard earlier this morning
`and I don't think there's any dispute about this. Looking at slide 6, this is
`what Patent Owner argues distinguishes the '774 challenged claims from
`Thomson. Thomson does not disclose an open-hole completion. That is the
`only distinction.
`All of the tool features, the packer, solid body packers, ball-drop
`sliding sleeves, those are all disclosed in Thomson. The system, the
`apparatus portion of the claim is the same.
`Now, let's talk about the question of open hole. Looking at slide 7,
`we have cited numerous admissions by Patent Owner that it would have
`been obvious to take the Thomson system, in fact, any cased-hole tool and
`put it in open hole. There is Mr. Themig's admissions that it was known to
`take cased-hole tools and put them in open hole.
`If you had a competent formation, you can take a cased-hole tool
`and use it in an open hole. We have Mr. Trahan's admission which you see
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`on the slide here in which he says, the open-hole application of tools that
`were originally designed for cased hole has been commonplace in the
`industry since I began working in the industry in 1992. There is nothing
`novel or nonobvious about such an application, and that should resolve the
`issue for the Board. If there is nothing novel or nonobvious about using
`cased-hole tools like Thomson in open hole, then this case should be over.
`Now, Patent Owner attacks the --
`JUDGE DANIELS: Mr. Wilson, isn't that this testimony, though,
`by Mr. Trahan fairly limited to just that the tool will work in the hole? I
`mean, what we have here, even looking at these claims, is an entire system.
`MR. WILSON: I guess I'm not certain what Your Honor means by
`that, but I think if -- if I think what you're saying is what you're saying,
`which is we can put the tools in the open hole and they will function, did I
`think the answer is that's exactly what I'm saying. And so when you have a
`multistage fracturing system and you can put it in an open hole and guess
`what, it will fracture, then that's exactly what the claims cover.
`The claims don't require a certain amount of fracturing. They don't
`require a successful fracturing. They don't even require, you know, a single
`initiation point or anything like that. All they require is that you pump
`fracturing fluid through the first zone to fracture. That's Claim 1. I mean,
`that's all that's required.
`So if this is true of what Mr. Trahan said is true, then it would have
`been obvious to take the Thomson system and use it in open hole and you
`would at least have a reasonable expectation of success, which is all that is
`required.
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`JUDGE POWELL: So the reasonable expectation of success as
`viewed by a person of ordinary skill in the art is informed by the breadth of
`the claim. Is that --
`MR. WILSON: So I would actually put it another way just as KSR
`did. KSR says if a claim extends to what is obvious, that is if it covers
`something that would have been obvious, it's invalid under Section 103. So
`if the claim covers subject matter that would have been obvious, then the
`claim is invalid under Section 103. It doesn't have to be that the entire
`breadth of claim would have been obvious, if it covers an embodiment, a use
`in a particular well. If it would have been obvious to take Thomson and use
`it in a competent borehole, for example, as Patent Owner admits, then it
`would have been obvious. The claimed subject matter would have been
`obvious and is invalid.
`Now, moving forward to slide 8, what does Patent Owner say to
`try and rebut this extremely strong obviousness showing? What they say is
`these materials fail to address the key issue, whether it was obvious to use
`solid body packers in combination with ball-activated sleeves to perform the
`patented method of open-hole multistage fracturing, and that's in their Patent
`Owner Response. If you parse that phrase carefully, you'll see the only thing
`in there that Thomson doesn't teach is open hole, so we're back to the
`original question.
`Now, what Patent Owner says is, no, no, no, that's not the right
`question. The right question is would a person of ordinary skill in the art
`thought you could fracture, have thought you could fracture in open hole and
`they assert, no, you wouldn't, there's no evidence out there. As you heard
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`this morning, there's no evidence out there that anybody was doing
`open-hole multistage fracturing or fracturing in open holes. That's
`completely false.
`The Board has before in Yost, Exhibit 1002, on slide 9 here which
`shows an example of open-hole multistage fracturing. In the first red quote
`here on the slide, it says, such completion arrangement provided stimulation
`intervals with
`ready-made perforation for injecting fracturing fluids in an open-hole
`fracturing condition behind pipe.
`And it even explains why you would do it, to avoid the problems
`of formation damage associated with cementing and to eliminate the need
`for tubing-conveyed perforating of numerous treatment intervals. We want
`to avoid damage from cement and we want to avoid the need for
`tubing-conveyed perforation. So Yost not only teaches open-hole multistage
`fracturing, it says, hey, there's a motivation to do this. There's a reason you
`want to do this.
`Now --
`JUDGE DeFRANCO: Mr. Wilson, what are the problems
`associated with cementing, in other words, what's the damage that's caused
`to a hole?
`MR. WILSON: So the -- in particular, what cementing does is it
`closes off. If you are trying to access a natural fracture system, for example,
`cementing the well will seal off access to the natural fractures. You will see
`-- and, in fact, in just a moment I'll show you the McLellan reference which
`we also cite for open-hole multistage fracturing.
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`McLellan says expressly we were afraid to cement because we
`didn't want to close off the natural fractures and McLellan goes further and
`says, we were afraid if we perforated because of the pinpoint precision of the
`fracture, those perforations may not hit the natural fractures that we want to
`intersect and so they started with cementing and perforating and moved to
`open-hole fracturing.
`So there was a motivation. In fact, it was known, well-known in
`the art to use multistage open-hole fracturing. This is not new. It was taught
`by multiple references as we see here.
`But I want to get back to Yost for a second and here I'm showing
`slide 10, and the reason I'm showing slide 10 is because Patent Owner is
`going to attack Yost in many, many ways very aggressively because they
`need to in the context of Ground 1.
`The issue that we have to answer is would a person of ordinary
`skill in the art thought, have thought reading Yost, hey, we can go out and
`do open-hole multistage fracturing successfully. The Overbey reference
`which we cited from a 1992 Department of Energy report following up on
`Yost says absolutely. Overbey says, we had two options in stimulating the
`Hardy HW Number 1 well. We can do conventional cementing and
`perforating or we can do inflatable casing packers with port collars as was
`done in the RET Number 1 well, Yost's well. Because of the relatively
`successful completion of the RET Number 1 well, the casing packer port
`collar option was selected.
`We can sit here and have experts testify all day long about what a
`person of ordinary skill in the art would have thought of Yost back in the
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`1990s, but we have objective evidence of what a person of ordinary skill in
`the art thought of Yost in the 1990s right here in the Overbey report. So I
`submit to the Board that a person of ordinary skill in the art thought Yost
`was successful and was motivated to replicate it.
`Now, as I mentioned earlier, here in slide 11 is the McLellan
`reference, yet another open-hole multistage fracturing reference. And as I
`mentioned previously, McLellan says we first started in a conventional
`manner with a cemented and perforated liner, but we switched to open-hole
`completions in the next two horizontal wells because the former completion
`method is expensive and there was a possibility that vertical natural fractures
`intersecting the wellbore at close to right angles may not connect effectively
`to perforations, yet another motivation to use open-hole multistage
`fracturing. They did 27 sets without a tool failure or a leakage around the
`packer.
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`Now, you're going to hear Patent Owner say, wait, wait, wait,
`McLellan was not open-hole multistage fracturing because they used a
`straddle arrangement, two packers separated by ports in the middle, and
`moved that arrangement from stage to stage rather than putting in a single
`tubing string, multiple packers in multiple ports.
`I submit to the Board that is an irrelevant distinction. Whether you
`use the same two packers in multiple places or whether you use multiple
`packers in the same tubing string makes no difference. It is open-hole
`multistage fracturing as McLellan himself says in the conclusions.
`Now, Patent Owner next goes after Thomson and they say, well, a
`person of ordinary skill in the art would have been alarmed by what
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`Thomson disclosed. Now, at the top of slide 12 here we have SPE 37482,
`the Thomson reference, and you can see in the signature line here that it's --
`Thomson was from Halliburton and there's some authors from Phillips.
`Now, Patent Owner itself says in its Patent Owner Response that
`Halliburton and Phillips and, in fact, they reiterated this morning that
`Halliburton and Phillips are two of the most well recognized and technically
`savvy organizations in the oil and gas industry. If that's the case, why would
`they publish not just once. This paper was published as an OTC paper. It
`was published here. It was published as a separate SPE paper and it was
`published at SPE drilling and completion after a peer review.
`Why would they publish an article that would be alarming to a
`person of ordinary skill in the art, that would be alarming to their customers?
`Now, that defies common sense. And, in fact, when Mr. McGowen, Patent
`Owner's expert, was asked what would motivate a service company to write
`an SPE paper, he said increased sales. So if I'm publishing a paper to my
`customers that they would find alarming, is that going to increase my sales?
`I think the answer is obvious.
`But let's look at the problems that Mr. McGowen identified that he
`said would have been alarming. So at slide 13 here we have the PBR/seal
`assembly. That's the polished bore receptacle, the piece at the top that holds
`the weight of the horizontal tubing string. They expressed a concern about
`prematurely sheering the sheer screws because of the weight of that tubing
`string. So what did they do? They moved it down in sections instead of
`moving it down all at once. Easy solution.
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`Dr. Rao says in his Reply declaration, the authors provided a
`solution to the problem and ran the job without incident. How could that
`possibly be alarming? They saw a problem in advance. They dealt with it.
`They ran the job without an incident. That can't possibly be alarming. It's
`not credible to assert that that would be alarming to a person of ordinary
`skill in the art.
`Finally, Mr. McGowen cites the failure of the pump-out plug in
`one and the cycle plug on M3. Dr. Rao responds, not only did the authors of
`Thomson address these issues as they arose as described in the paper, but
`also the author suggests the use of new disappearing plugs as a more reliable
`and cost-effective solution to the tailpipe plug. Again, Thomson itself
`describes its fracturing as successful. They dealt with the pump-out plug
`problem and said when you use this in the future, you might want to use a
`disappearing plug to resolve this issue. Again, there's nothing alarming
`about these problems and the solutions they offer.
`And with that, I want to sum up on Ground 2 before we move to
`Ground 1 and I want to say let me just reiterate. The Thomson reference
`discloses everything except open hole. There's no dispute about that. Patent
`Owner has admitted that it would have been obvious to use cased-hole tools
`in open hole. Again, there's no dispute about that. Patent Owner tries to
`limit its assertion to saying, well, but we are only talking about solid body
`packers there. Okay, fine. The solid body packer is the only piece of
`Thomson that cares or knows whether it's in an open hole or a cased hole.
`It's the only part that contacts the wellbore.
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`So if it would have obvious to take the packers and move them into
`an open hole, then it would have obvious to take Thomson's system and
`move it into an open hole. There's no dispute that open-hole multistage
`fracturing was known in the art, part of the conventional wisdom.
`Now I want to shift to Ground 1. In this case we start with Yost,
`which is an open-hole multistage fracturing system, and all we have to do is
`make two simple substitutions to Yost, both of which are taught in the art
`and we end up with the '774 challenged claims.
`So let's start with the first substitution. Thomson discloses --
`JUDGE POWELL: And you're on slide what now?
`MR. WILSON: I'm sorry, I'm on slide 15 now. So Thomson
`discloses that the key element of his system is a multistage acid frack tool.
`He says with this system stimulation of 10 separate zones is accomplished in
`12 to 18 hours, and he says this technique provided a substantial reduction in
`the operational time normally required to stimulate multiple zones and he
`also talks about -- goes on to talk about the cost efficiencies achieved by
`using this multistage acid frack ball-drop sliding sleeve.
`So he says when you're fracturing, this is a great idea. It greatly
`reduces the time required to fracture multiple zones. It would have been
`obvious to substitute the ball-drop sliding sleeve of Thomson for the port
`collar, the tubing-actuated port collar of Yost. That is nothing more than a
`simple substitution used for its intended purpose.
`So now let's look at what Yost has to say about solid body packers.
`Yost says inflatable packers are used for stimulation, but more recently solid
`body packers have been used to establish open-hole isolation. Why? The
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`Case IPR2016-01514 (Patent 7,543,634 B2)
`Case IPR2016-01517 (Patent 7,134,505 B2)
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`objective of using this type of tool is to provide a long-term solution to
`open-hole isolation without the aid of cemented liners. Now, that's exactly
`why Yost advocated not cementing and not perforating.
`Yost said, we are afraid about the formation damage associated
`with cementing and we don't want to spend the money on perforating and
`Ellsworth is here saying, this avoids the need to cement, which also avoids
`the need to perforate, right? Same motivation. And he says replace your
`inflatable packers with solid body packers. It would have been obvious to
`make this simple substitution of solid body packers for its intended purpose
`in Yost. And now what do you have? You have the claimed invention.
`Thomson also discloses -- here on slide 17, Thomson also
`discloses solid body packers used in a multistage fracturing system.
`So as we see on slide 18, Mr. McGowen, Patent Owner's expert,
`was asked, if I took the method of Yost and I modified it by replacing the
`inflatable packers with the solid body packers of Thomson and I replace the
`port collars with ball-actuated sliding sleeves and actuated those port collars
`with balls, as was done in Thomson, then the method of Yost as so modified
`would infringe the '774 claims, correct? I believe that's correct.
`That's it. All the limitations are there. Those two simple
`substitutions get you the challenged '774 claims. As you've seen, they are
`expressly taught in the art for the purposes for which they would be used in
`Yost.
`
`Now, I want to quickly address Patent Owner's attacks on Yost.
`So the first attack they lodge is Yost was not a commercial well. It was a
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`test well. It doesn't show commercial viability. Yost expressly refutes that
`point.
`
`If we take a look at slide 19 here, we're going to see a passage
`from the very first page of Yost for which he says under current reservoir
`pressure conditions, the horizontal well produced at a rate seven times
`greater than the field current average of 13,000 cubic feet per day for
`stimulated vertical wells. This increase in gas production suggests that
`horizontal wells, in strategically placed locations within partially depleted
`fields, could significantly increase reserves.
`Now, what does he mean by significantly increase reserves? He
`means significantly increase the quantity of gas that is available for
`economic production. That's what reserves are. He's not increasing the gas
`in the field. He's increasing the gas that's economically recoverable, right?
`He's saying this contributes to the economically available gas, this method.
`He's saying it's successful.
`Now, in slide 20 we see Dr. Rao's reply to the commercial viability
`of Yost's point and the attack on Yost here is that Yost is too low a pressure
`to be commercially viable. No one would be fracturing in this field.
`Now, when Mr. McGowen was asked that at his deposition at page
`76 in Exhibit 1038, he was asked, are you aware of whether or not there was
`commercial drilling in the Devonian shale where Yost was working and he
`says, I have no idea. There might have been. So he didn't even look before
`he said Yost was not commercially viable. He didn't even check and see
`whether there was.
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`In fact, as Dr. Rao says, there has been since before Yost and
`continues to be today significant commercial drilling operations in the
`Devonian shale and in other fields in which operators experience conditions
`similar to those reported by Yost, and he cites evidence in his Reply
`Declaration to back that up.
`In the second half of slide 20 you see Mr. McGowen's admission
`that none of the papers describing the RET Number 1 well -- and this is
`Yost's well, and there are many papers you're going to see in the record as
`we go through this. Not one of them said that Yost's system described there
`was not commercially viable, correct? That's correct. So Mr. McGowen
`admits that Yost nowhere says that his system is commercially viable.
`Now, let's talk about why that is particularly significant. Patent
`Owner is going to get up and he's going to say, hey, the conventional
`wisdom was if you want to do multistage fracturing, you cement and you
`perforate. It's necessary. One of the papers he will cite for that is a
`subsequent job by Yost, SPE 21264, which is Exhibit 2077.
`Let's see what this reference says. After Yost subsequently
`conducted plug and perf type multistage fracturing, he says, until the cost of
`slant well directional drilling technology using air can be reduced to less
`than twice the cost of vertical wells, improved economic advantage cannot
`be realized. So he says when he does a plug and perf well subsequent to his
`work in open-hole multistage, this is not economically viable.
`He had no problem saying when he thought something was not
`economically viable, which he says on page 6 of 10 of Exhibit 2077, Patent
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`Owner’s reference that the Department of Energy abandoned open-hole
`multistage fracturing for plug and perf cemented fracturing.
`Now, Patent Owner's next criticism of Yost is that Yost intended to
`avoid fracturing across zones, but "failed spectacularly in that effort." Now,
`to begin with, nothing could be further from the truth as we'll see. But just
`to put a finer point on it, in slide 21 here we have the admission of Mr.
`McGowen. Do I avoid infringement of Claim 1 of the '774 patent because
`the fluid communicated through the formation to another zone? No. That
`doesn't even take you outside the '774 claims.
`Assuming Yost fractured across zones, his fracturing fluid
`communicated across zones, does that take you outside the '774 claims? The
`answer is no. Do I avoid infringement of any claim of the '774 patent
`because my fluid communicated to another zone? The answer is no. This
`has no patentable significance, this argument.
`JUDGE POWELL: So there, again, when we evaluate the question
`of whether there's a reasonable expectation of success, if I understand the
`argument you're making correctly, all we need to see is whether there is a
`reasonable expectation of achieving what is recited in the claim.
`MR. WILSON: That is correct, yes.
`JUDGE POWELL: As opposed to potentially achieving some
`degree of success in some other respect that a person of ordinary skill in the
`art might desire in that for that system.
`MR. WILSON: That's correct, Your Honor. Intended results are
`not part of the claim and they are not -- they may be relevant to evaluating in
`some instances an apparent reason to combine, but they are not in and of
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`themselves a reason to say that something was nonobviousness, that failure
`to achieve or failure of an expectation to achieve some intended result is not
`probative of nonobviousness, unless they can separately show that it's -- it
`would have motivated someone not to do this. Okay?
`JUDGE DeFRANCO: So, in other words, you're saying Claim 1
`covers fracturing whether it's fracturing within the zone or fracturing across
`the zone, as long as it's fracturing somewhere within the zone, even if it
`attenuates --
`MR. WILSON: That's correct, Your Honor.
`JUDGE DeFRANCO: -- into a different zone.
`MR. WILSON: That's correct. Now, Patent Owner does argue
`that Claim 9 is not met because Yost fractured across zones. That is their
`one argument for one claim limitation that is not met. Mr. McGowen, their
`own expert, refutes that point. Do I avoid infringement of any claim of the
`'774 patent because my fluid communicated to another zone? No. That's a
`concession right there that Claim 9 is not distinguishable over Yost. And
`Claim 9, by the way, is talking about annular wellbore segments being
`isolated, not the formation. That's not what it's talking about anyway.
`So on this point of fracturing across zones, let's look and see what
`Yost actually said. This is slide 22 now and this is the stimulation rationale
`taken from SPE
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