Paper No. 40
`
`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
`
`_
`
`Inter Partes Review No. IPR2016-01517
`Patent 7,134,505
`_
`
`PETITIONERS’ OBJECTIONS TO PATENT OWNER’S EXPERT
`DECLARATIONS PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`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
`
`_
`
`Inter Partes Review No. IPR2016-01517
`Patent 7,134,505
`_
`
`PETITIONERS’ OBJECTIONS TO PATENT OWNER’S EXPERT
`DECLARATIONS PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`IPR2016-01517
`Patent 7,134,505
`Under the Federal Rules of Evidence and 37 C.F.R. § 42.64, Petitioners
`
`Weatherford International LLC, et al. (hereinafter, “Petitioners”) timely1 object to
`
`evidence submitted by Exclusive Licensee Rapid Completions (hereinafter, “Patent
`
`Owner”) in the form of expert testimony of Harold E. McGowen, III. Petitioners serve
`
`Patent Owner with these objections to provide notice that Petitioners may move to
`
`exclude the challenged exhibits under 37 C.F.R. § 42.64(c) unless Patent Owner cures
`
`the defects associated with the challenged exhibit identified below.
`
`Exhibits 2051 and 2081
`
`Exhibit 2051 is the December 2, 2016 expert declaration of Harold E.
`
`McGowen, III.
`
`In section 14.4 of Exhibit 2051, Mr. McGowen expresses opinions
`
`regarding alleged commercial success of the ’505 claims based on alleged sales of
`
`embodiments of the ’505 claims by Baker Hughes. Ex. 2051 at 45-46 of 94. Similarly,
`
`1 Petitioners note that the present Objections are timely as they are being served
`
`and filed within five business days of receipt of the official transcript of the Oral
`
`Deposition of Harold E. McGowen III, filed on August 16, 2017 as Exhibit 1038. The
`
`basis under which Petitioners object to Exhibits 2051 and 2081 came to light during
`
`Mr. McGowen's deposition. See, e.g., Ex. 1038 at 163:8-25. Furthermore, Petitioners
`
`previously reserved the right to object to Exs. 2051 and 2081 pending this deposition.
`
`Paper 34 at 5, 18.
`
`1
`
`
`
`IPR2016-01517
`Patent 7,134,505
`in Exhibit 2081, which is the May 31, 2017 expert declaration of Harold E. McGowen,
`
`III, Mr. McGowen again opines on alleged commercial success of Baker Hughes’s
`
`systems in section 11.2. Ex. 2081 at 25-27 of 42.
`
`Petitioners object to section 14.4 of Exhibit 2051 and section 11.2 of Ex. 2081
`
`under Federal Rules of Evidence 702 and 705 because Mr. McGowen testified at his
`
`deposition that he bases his opinions on alleged commercial success by Baker Hughes
`
`on internal Baker Hughes data that is not available to Petitioners in violation of Federal
`
`Rule of Evidence 705. McGowen Tr. at 163:8-25 (Ex. 1038, filed on August 16,
`
`2017). Thus, Mr. McGowen’s opinions provided in section 14.4 of Exhibit 2051 and
`
`section 11.2 of Ex. 2081 are inadmissible because his declarations do not set forth the
`
`basis for his opinions of commercial success based on Baker Hughes’s sales and
`
`because the basis for those opinions has not been produced, such that Petitioners have
`
`no way to adequately cross examine Mr. McGowen on these opinions; Riffenburg by
`
`Riffenburg v. Michigan, No. 5:96-cv-99, 1998 U.S. Dist. LEXIS 15622, at *56 (W.D.
`
`Mich. Sept. 3, 1998) (“The Riffenburgs also fail to grasp that the court can and will
`
`require the facts underlying any such opinion to be disclosed, pursuant to Fed. R. Evid.
`
`705. Our adversary system does not entitle a party to retain the ‘confidentiality’ of
`
`data supporting opinion testimony.”); see also PTAB Trial Practice Guide § II(A)(4)
`
`(“Affidavits expressing an opinion of an expert must disclose the underlying facts or
`
`data upon which the opinion is based.”); 37 C.F.R. § 42.65. Additionally, because
`
`2
`
`
`
`IPR2016-01517
`Patent 7,134,505
`Patent Owner has failed to produce the facts and data underlying Mr. McGowen’s
`
`opinions regarding alleged commercial success by Baker Hughes, Patent Owner
`
`cannot establish that the opinions are based on sufficient facts or data, that the opinions
`
`are the product of reliable principles and methods, or that the expert has reliably
`
`applied the principles and methods to the facts of this case. As a result, Patent Owner
`
`cannot establish that Mr. McGowen’s expert testimony regarding alleged commercial
`
`success by Baker Hughes is admissible under Federal Rule of Evidence 702.
`
`Petitioners also object to section 14.4 of Ex. 2051 and section 11.2 of Ex. 2081
`
`as being irrelevant under Fed. R. Evid. 401 and thus inadmissible under Fed. R. Evid.
`
`402, or as being confusing or a waste of time under Fed. R. Evid. 403 because these
`
`expert opinions are inadmissible under Fed. R. Evid. 702, would be prejudicial if
`
`admitted, and are not otherwise admissible evidence.
`
`Dated: August 17, 2017
`
`Respectfully submitted,
`
`/Jason Shapiro/
`Jason Shapiro, Reg. No. 35,354
`Counsel for Petitioners
`
`3
`
`
`
`CERTIFICATE OF SERVICE
`I certify that the foregoing PETITIONERS’ OBJECTIONS TO PATENT
`
`OWNER’S EXPERT DECLARATIONS PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`and the present CERTIFICATE OF SERVICE were served August 17, 2017 via
`
`electronic mail, as previously consented to by Patent Owner, upon the following
`
`counsel of record:
`
`HAMAD M. HAMAD (LEAD COUNSEL)
`BRADLEY W. CALDWELL (BACK-UP COUNSEL)
`JUSTIN NEMUNAITIS (BACK-UP COUNSEL)
`CALDWELL CASSADY CURRY P.C.
`
`hhamad@caldwellcc.com
`bcaldwell@caldwellcc.com
`jnemunaitis@caldwellcc.com
`rapid@caldwellcc.com
`
`DR. GREGORY J. GONSALVES (BACK-UP COUNSEL)
`GONSALVES LAW FIRM
`
`gonsalves@gonsalveslawfirm.com
`
`Dated: August 17, 2017
`EDELL, SHAPIRO & FINNAN, LLC
`9801 Washingtonian Blvd., Suite 750
`Gaithersburg, MD 20878
`Customer No. 27896
`
`Respectfully submitted:
`/Mark J. DeBoy/
`Mark J. DeBoy, Reg. No. 66,983
`Telephone: 301.424.3640
`
`
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