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`Daily Energy News
`
`Court Case Now On: It’s Packers Plus Versus The World – Here’s What’s
`at Stake for Multi-stage Horizontal Completion Companies – David
`Yager
`
`Posted On February 23rd By : EnergyNow Media
`
`
`
`David Yager – Yager Management Ltd.
`Oilfield Service Management Consulting – Oil & Gas Writer – Energy Policy Analyst
`
`It is surely the most interesting oilfield services (OFS) intellectual property (IP) court case nobody but those directly affected knows about.
`Starting February 6 in a federal courtroom inconspicuously situated in a downtown Calgary office building, a monthlong trial began pitting
`Packers Plus Energy Services Inc. (PPES) against five major and minor oil tool companies PPES alleges have infringed on its Canadian
`patent 2412072 titled, “Method and Apparatus for Wellbore Fluid Treatment”.
`
`PPES is suing alleged Canadian patent infringers Weatherford International PLC., Baker Hughes Canada Company, Essential Energy Service
`Ltd., Resource Well Completions Technology Inc. and Canuck Completions Ltd. The day this writer visited the trial there were some 18
`lawyers in attendance which, at a $600 per hour average, would cost over $100,000 daily based on 10 billing hours each (preparation plus
`courtroom time). This fourweek trial would cost the tool companies over $2 million (plaintiff plus defendants) in addition to years of offense
`and defense by the various parties, surely millions more.
`
`Based on a prior judgement/settlement early last year of $7.7 million PPES was awarded against Canuck, the smallest defendant, if PPES
`wins the financial stakes would surely be in the tens if not hundreds of millions of dollars. Who knows? Where this trial will go is unknown.
`While the courtroom portion of the lawsuit will be over in early March, the judge’s decision will not be rendered for months thereafter. Stay
`tuned. This story won’t be over anytime soon.
`
`The issue is the legendary Packers Plus multistage horizontal wellbore completion system that played a key role in the development of the
`shale gas and light tight oil boom that revolutionized the North American oil and gas industry in the past 15 years. Called the “open hole
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`multistage ball drop system”, it was a proven and reliable method of setting multiple packers in an uncased wellbore to isolate sections of the
`reservoir from one end to the other to perform multiple fracs. It took Calgarybased PPES from obscurity to international fame in a short
`period and played a pivotal role in moving the entire process forward. PPES sold a minority interest to Schlumberger in 2005.
`
`While this system has largely been eclipsed by plug and perforate systems in cemented liners and coiled tubing activated sliding sleeves, it
`was indeed pioneering plumbing that helped commercialize extended reach horizontal completions in reservoirs that would not otherwise yield
`commercial quantities of hydrocarbons. The PPES ball drop system was what the investing community calls a “disruptive technology”,
`something so useful and necessary the macroeconomic forces it unleashes creates new and powerful problems and challenges. The full
`commercial impact of where this system would take the inventors, competitors and customers – or even the industry as a whole – was likely
`not anticipated at the time. The upstream oil and gas industry is not gifted at predicting its future.
`
`For OFS, disruptive technologies are a blessing and a curse. The good news is the inventor gets to make a whack of money in the short term
`and much more thereafter. The bad news is success attracts attention and competition. Once every exploration and production (E&P)
`company decides they need it the focus is on price and availability, not who controls the IP, patent protection or not. When demand explodes
`the first salesman in the door with a product that does the same thing at a lower price or with faster delivery is always welcome.
`
`E&P companies encourage competition simply defined as multiple suppliers. The relationship between OFS and E&P is such that should
`vendors one day go to war over who owns the IP, E&P has already enjoyed the benefit but will bear little or none of the risk. Competition goes
`up. Prices go down. And the good news for E&P is OFS rarely sues its customers regardless of what role they may have played in the
`purchase, use and benefit of patented products or services.
`
`According to the Canadian Intellectual Property Office website, Canadian patent 2412072 was filed by Jim Fehr and Daniel Themig on
`November 19, 2002. A U.S. patent under the same title was filed exactly a year earlier. Themig is best known as the founder and CEO of
`PPES. The application was open for public inspection as a “patent pending” after six months but was not actually issued until June 19, 2012,
`almost ten years later. The Daily Oil Bulletin reported on July 17, 2013 that PPES had filed its first statement of claim against Canuck
`Completions, perhaps a strategy to try its luck on the smallest player it believed was infringing on its newly issued patent.
`
`A news report covering the $7.7 million Canuck decision early last year indicates a similar action was filed against Essential in October 2013.
`Essential issued a news release January 5, 2016 stating, “Essential believes that the lawsuit is without merit and is not only defending
`against the infringement allegations but also seeking a declaration that the Packers patent is invalid. The trial date has been set for February
`2017”. This is the trial currently underway.
`
`Essential continued, “Unlike the consent judgement that was issued in that (Canuck) case, Essential remains of the view that once the
`Federal Court has the benefit of hearing evidence and argument in a contested proceeding, it will conclude that the Packers’ patent is not
`being infringed by Essential and, in any event, is invalid.”
`
`What this means is that although in the Canuck case the judge ruled there was infringement, the validity of the patent was not contested. The
`patent itself is the foundation of the defense of the multiple defendants.
`
`Ten years without a patent is a long time for a disruptive invention to be in the marketplace, particularly when it includes the formative years
`of what would become a horizontal drilling and completion boom of mindboggling proportions. Every single horizontal well drilled – tens of
`thousands of them – needed something in it that did something like what the original PPES system delivered. It was fabulously profitable.
`Demand was exploding. These are the market forces disruptive technological advances unleash.
`
`This new drilling and completion technique has radically changed the packer business. In the old days of vertical wells tool companies got to
`sell one packer. A $10,000 invoice was high for most completions, a small fraction of that more common. A dual zone completion with sour
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`service metallurgy might jack the invoice to $50,000. This was a mature and highly competitive business with no major advancements in
`decades.
`
`Extendedreach horizontals changed all that. Instead of selling one packer you could sell 10 or 20. Today horizontal completions are
`commonly done in 40 or 50 stages with one report indicating a Bakken well last year employed 93 stages. A packer or tool of some sort is
`sold for each stage. In the early days of the process industry sources say suppliers could fetch $50,000 per stage often resulting in an
`invoice of $1 million per well. Good or bad, that same tool today goes for about $7,000; good for the client, bad for the supplier. And there are
`other methods of achieving the same outcome as the process is refined.
`
`The drastically reduced cost of all elements of horizontal drilling and completion are good for the business, particularly now that oil only
`fetches half what it once did. Because of the enormity of shale gas and light tight oil resources, this new market is for the most part elastic.
`When OFS cuts the price in half E&P will drill twice as many wells at a given commodity price. Having oil companies make more money and
`produce more oil and gas is beneficial for OFS because it expands the market and ensures commercial longevity. Regrettably, many OFS
`owners and executives don’t see it that way.
`
`Finding information on the statements of claim and defense for this trial is not easy. Because the case is before the court as this is written
`nobody wants to say much about anything.
`
`But a key element of the defense case appears to be public in the form of an SPE paper delivered in March, 1997 at a conference in
`Oklahoma City. Titled, “Design and Installation of a Cost Effective Completion System for Horizontal Chalk Wells Where Multiple Zones
`Required Acid Stimulation”, Halliburton employee D.W. Thompson described a series of packers employing balls and seats and sliding
`sleeves that seems similar to the legacy PPES system.
`
`Designed to stimulate a horizontal well in multiple stages in one trip, the abstract reads, “Each sleeve contains a threaded ball seat with the
`smallest ball set in the lowest sleeve and the largest ball seat in the highest sleeve. With this system, stimulation of 10 separate zones is
`accomplished in 12 to 18 hours by a unique procedure that lubricates varying sized lowspecific gravity balls into the tubing and then pumps
`them to a mating seat in the appropriate MSAF (packer), thus sealing off the stimulated zone and allowing stimulation of the next zone which
`is made accessible by opening the sleeve”.
`
`The paper’s procedure predates the PPES U.S. patent application by about four years, and is what the defendants are in part citing as “prior
`art” in their assault on the PPES patent. Halliburton never thought to patent the process as it seems to have done largely with existing
`components and was just another day at work for a global service giant.
`
`The day this writer was in the courtroom an expert witness who had described this Halliburton assembly as similar to the PPES system was
`being cross examined by the plaintiff’s counsel. Among other things, the witness was forced to admit acidizing was not the same as
`hydraulic fracturing, and cased hole was different than open hole. How much this matters legally won’t be known for months.
`
`The judge, undoubtedly a normal human being before being indoctrinated into the highlyspecialized world of oil and gas well completion and
`stimulation systems, will be forced to become a downhole tool expert prior to rendering a decision. One can only assume the judge is already
`well versed in IP and patent law.
`
`Sealing off wellbores in open and cased vertical wells is hardly new. A 1971 edition of the textbook History Of Oil Well Drilling cites the 1912
`invention of a cement retainer by R.C. Baker (founder of Baker Oil Tools), “to pack off between the casing and tubing when pumping cement
`through tubing”. Open hole packers to isolate and test producing reservoirs date back to 1867 and were, of course, patented. The first
`lawsuits about who invented what in the area of open hole zone isolation date back to the 1930s, Halliburton versus what would later become
`Johnston Testers. According to a Wikipedia website on hydraulic fracturing this process was invented in 1947 and was in broad commercial
`use in the 1950s.
`
`So, whether you can take 150 years of wellbore sealing and isolation tools and 70 years of pressure pumping and a zillion patents citing prior
`art and determine everything is new because it being employed in horizontal not vertical wells will require an exhaustive and detailed
`examination of patents and intellectual property law.
`
`Before it went down the path of litigation, PPES must have surely pondered long and hard about the value of a patent if the owner did not
`protect it. An option is licensing to ensure the inventor of the IP gets a share of all applications of its technology. Licensing also ensures the
`patent is not challenged. That the matter is in court indicates licensing was never considered or negotiations never successfully concluded.
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`The defendants in Packers Plus versus the world must have figured the tenyear absence of a patent in the face of skyrocketing demand
`made entering the market acceptable; PPES should never have received a patent in the first place; the reward was worth the risk if a patent
`was issued; or that PPES would never risk an exhaustive court case that might render its patents invalid.
`
`Meanwhile, the E&P companies that provide packer and completion tool suppliers with enough money to sue each other and defend
`themselves are able to purchase cheaper and better multistage completion systems every day. Seemingly without guilt nor legal
`repercussions. And so it goes in the oil and gas business. Oil companies get the mine and too often the suppliers get the shaft.
`
`About David Yager – Yager Management Ltd.
`
`Based in Calgary, Alberta, David Yager is a former oilfield services executive and the principle of Yager Management Ltd. Yager Management
`provides management consultancy services to the oilfield services industry in a number of areas including M&A, Strategic Planning,
`Restructuring and Marketing. He has been writing about the upstream oil and gas industry and energy policy and issues since 1979.
`
`See David Yager’s Corporate CV
`List of David Yager’s Consulting Services
`David Yager can be reached at Ph: 403.850.6088 Email: yager@telus.net
`
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