UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Paper No. 44
`
`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’ MOTION TO EXCLUDE
`EVIDENCE UNDER 37 C.F.R. § 42.64(c)
`
`
`
`Paper No. 44
`
`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’ MOTION TO EXCLUDE
`EVIDENCE UNDER 37 C.F.R. § 42.64(c)
`
`
`
`IPR2016-01517
`Patent 7,134,505
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Rapid Completions LLC v. Baker Hughes Inc., No. 6:15-cv-724, slip op. (E.D. Tex. Feb.
`
`17, 2017).......................................................................................................................6
`
`Riffenburg by Riffenburg v. Michigan, No. 5:96-cv-99, 1998 U.S. Dist. LEXIS 15622
`
`(W.D. Mich. Sept. 3, 1998)..........................................................................................4
`
`Sanchez v. Boston Sci. Corp., No. 2:12-cv-05762, 2014 U.S. Dist. LEXIS 137189
`
`(S.D.W. Va. Sept. 29, 2014) ........................................................................................5
`
`Sims v. Kia Motors of Am., 839 F.3d 393 (5th Cir. 2016) ...............................................6
`
`Rules
`
`37 C.F.R. § 42.64 ...................................................................................................1, 7, 15
`
`Fed. Rule Evid. 401................................................................................................8, 9, 10
`
`Fed. Rule Evid. 702..............................................................................................3, 5, 6, 7
`
`Fed. Rule Evid. 705..............................................................................................3, 5, 6, 7
`
`Fed. Rule Evid. 802.................................................................................................passim
`
`Fed. Rule Evid. 803........................................................................................................11
`
`Fed. Rule Evid. 901..........................................................................................................7
`
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756 ................................................4
`
`2
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`
`
`IPR2016-01517
`Patent 7,134,505
`Pursuant to 37 C.F.R. § 42.64(c), Petitioner moves to exclude the Patent
`
`Owner (“PO”) Exhibits listed below. Petitioner provides the following numerical
`
`listing of where the exhibits and the objections thereto appear in the record.
`
`Explanations of why each of these exhibits should be excluded follows thereafter.
`
`Exhibit
`2004
`
`Where Cited
`Preliminary Response, paper 18
`
`Where Objected To
`Objections to POPR Evidence, paper
`
`(“POPR”) at 25-26; Response,
`
`27 ("POPR Objections") at 3-4
`
`paper 32 (“POR”) at 30
`
`2005
`
`POPR at 24; POR at 28-29
`
`POPR Objections at 4-5
`
`2006
`
`POPR at 23; POR at 28
`
`POPR Objections at 6-7
`
`2007
`
`POPR at 25; POR at 29-30
`
`POPR Objections at 7-8
`
`2008
`
`POPR at 23; POR at 28
`
`POPR Objections at 8-10
`
`2009
`
`POPR at 24
`
`POPR Objections at 10-11
`
`2010
`
`POPR at 26-28; POR at 14-15,
`
`POPR Objections at 11-12
`
`26, 40-41
`
`2011
`
`Not cited
`
`2012
`
`Not cited
`
`POPR Objections at 13
`
`POPR Objections at 14
`
`2013
`
`POPR at 26-27, 34; POR at 23,
`
`POPR Objections at 15-16
`
`30-31
`
`2014
`
`POPR at 31; POR at 22-23, 63
`
`POPR Objections at 16-18
`
`1
`
`
`
`2015
`
`POR at 23-24
`
`IPR2016-01517
`Patent 7,134,505
`POPR Objections at 18-19
`
`2016
`
`POPR at 22-23, 27, 29-31; POR
`
`POPR Objections at 19-20
`
`at 6, 13-14, 16-17, 36, 41, 55
`
`2017
`
`POPR at 22; POR at 24-25, 3435-
`
`POPR Objections at 20-21
`
`36, 56
`
`2018
`
`POPR at 22-23; POR at 31-36, 42 POPR Objections at 22-23
`
`2019
`
`POPR at 22-23, 26; POR at 31-
`
`POPR Objections at 23-24
`
`36, 39, 42
`
`2020
`
`POPR at 25; POR at 29
`
`POPR Objections at 24-25
`
`2045
`
`POR at 29
`
`Objections to POR Evidence , paper
`
`34 ("POR Objections") at 1-2
`
`2046
`
`POR at 30
`
`POR Objections at 2-3
`
`2047
`
`POR at 30-31, 40-41
`
`POR Objections at 3-4
`
`2051
`
`POR at 12, 14-16, 25, 27, 35, 39,
`
`Objections to Expert Declarations,
`
`52-54, 63
`
`paper 40 ("Expert Objections") at 1-
`
`2052
`
`POR at 32-33
`
`2053
`
`POR at 33-34
`
`2054
`
`POR at 31
`
`3; Ex. 1038 at 164:1-3
`
`POR Objections at 5-6
`
`POR Objections at 6
`
`POR Objections at 7-8
`
`2
`
`
`
`2055
`
`POR at 36-37
`
`IPR2016-01517
`Patent 7,134,505
`POR Objections at 8
`
`2058
`
`POR at 2-3, 35-36
`
`POR Objections at 11-12
`
`2059
`
`POR at 35-36
`
`2061
`
`POR at 28
`
`POR Objections at 12
`
`POR Objections at 13-14
`
`2081
`
`POR at 39, 45, 46-48, 55, 61
`
`Expert Objections at 1-3; Ex. 1038 at
`
`2083
`
`Not cited
`
`2085
`
`POR at 14-15
`
`2086
`
`Not cited
`
`2087
`
`Not cited
`
`2088
`
`Not cited
`
`2089
`
`Not cited
`
`2091
`
`Not cited
`
`2097
`
`POR at 34
`
`164:1-3
`
`POR Objections at 18
`
`POR Objections at 18-20
`
`POR Objections at 20-21
`
`POR Objections at 21-22
`
`POR Objections at 22
`
`POR Objections at 22-23
`
`POR Objections at 23
`
`POR Objections 24-25
`
`I.
`
`Improper Expert Testimony
`Petitioners move to exclude section 14.4 of Exhibit 2051 and section 11.2 of
`
`Ex. 2081, both of which are expert declarations of Mr. Harold McGowen, under
`
`Federal Rules of Evidence 702 and 705 and the Board’s Trial Practice Guide because
`
`McGowen’s opinions in these sections are based on internal Baker Hughes data that
`
`has not been produced by PO. PO relies on McGowen’s opinions regarding
`
`3
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`
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`IPR2016-01517
`Patent 7,134,505
`commercial success in an effort to rebut Petitioners’ assertion of obviousness. POR
`
`at 39. Petitioner timely objected to these declarations after they were submitted,
`
`pending McGowen’s deposition. Paper 34 at 5, 18. Petitioner timely objected to
`
`McGowen’s testimony at the deposition (Ex. 1038 at 164:1-3) and within five
`
`business days after McGowen’s deposition transcript was provided (Paper 40 at 1
`
`n.1).
`
`McGowen notes in his deposition that his opinion is based on internal Baker
`
`Hughes documents and concedes that “I’m not sure I can even talk about it.”
`
`McGowen Tr. at 161:23-24 (Ex. 1038, filed on August 16, 2017). He also concedes
`
`that Petitioners do not have that information, and PO refused to provide the
`
`information at the deposition. Id. at 161:25-164:8. PO is proffering expert testimony
`
`for which it refuses to disclose the underlying facts or data, precluding Petitioner
`
`and the Board from understanding or testing the reliability of that expert testimony.
`
`The PTAB’s Trial Practice Guide at § II(A)(4) provides, “Affidavits
`
`expressing an opinion of an expert must disclose the underlying facts or data upon
`
`which the opinion is based.” (emphasis added); see also 37 C.F.R. § 42.65(a).
`
`Moreover, it is a violation of Federal Rules of Evidence 702 and 705 to permit expert
`
`testimony for which the underlying facts and data have not been produced.
`
`Riffenburg by Riffenburg v. Michigan, No. 5:96-cv-99, 1998 U.S. Dist. LEXIS
`
`15622, at *56 (W.D. Mich. Sept. 3, 1998) (“[T]he court can and will require the facts
`
`4
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`
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`IPR2016-01517
`Patent 7,134,505
`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 Sanchez v. Boston Sci. Corp., No. 2:12-
`
`cv-05762, 2014 U.S. Dist. LEXIS 137189 at *30-31 (S.D.W. Va. Sept. 29, 2014)
`
`(excluding expert testimony where expert refused to disclose the basis for an
`
`opinion.). There is no dispute that McGowen’s expert declarations failed to provide
`
`the underlying facts and data upon which his opinions are based, rendering them
`
`inadmissible under FRE 702 and 705 and the Board’s Trial Practice Guide.
`
`Thus, 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 McGowen on these opinions.
`
`Additionally, because PO has failed to produce the facts and data underlying
`
`McGowen’s opinions regarding alleged commercial success by Baker Hughes, PO
`
`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 required by
`
`FRE 702. As a result, PO cannot establish that McGowen’s expert testimony
`
`regarding alleged commercial success by Baker Hughes is admissible under Federal
`
`5
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`
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`IPR2016-01517
`Patent 7,134,505
`
`Rule of Evidence 702.
`
`In an effort to avoid exclusion of its expert testimony, PO sent an email to
`
`Petitioners on August 31, 2017 notifying Petitioners of “a mechanism for obtaining
`
`that information from Baker” via the Protective Order issued in the related litigation
`
`(“litigation Protective Order”). The allegation of a “mechanism” in PO’s email is
`
`inadequate to avoid exclusion of its expert testimony. First, nothing in the litigation
`
`Protective Order provides a right to Petitioners as part of this IPR to obtain discovery
`
`of Baker Hughes documents. The litigation Protective Order expressly provides,
`
`“Documents, information or material produced pursuant to any discovery request in
`
`this Action … shall be used by the Parties only in the litigation of this Action and
`
`shall not be used for any other purpose.” Rapid Completions LLC v. Baker Hughes
`
`Inc., No. 6:15-cv-724, slip op. at 6, ¶ 8 (E.D. Tex. Feb. 17, 2017)(emphasis added).
`
`Thus, the litigation Protective Order provides no avenue for Weatherford to obtain
`
`documents from Baker Hughes to use in an IPR. Second, it is PO who must establish
`
`the reliability of its own expert testimony, not Petitioners. Sims v. Kia Motors of
`
`Am., 839 F.3d 393, 400 (5th Cir. 2016). FRE 702 permits expert testimony only “if”
`
`that testimony is based on sufficient facts or data, the testimony is the product of
`
`reliable principles and methods, and the expert has reliably applied the principles
`
`and methods to the facts of the case. Moreover, FRE 705 requires the disclosure of
`
`the facts or data underlying an opinion on cross examination. At his deposition,
`
`6
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`
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`IPR2016-01517
`Patent 7,134,505
`McGowen offered no evidence in response to questions about the bases for his
`
`commercial success opinions. PO cannot shift the burden of justifying its expert’s
`
`testimony to Petitioners. Without any such information,
`
`these portions of
`
`McGowen’s declarations should be excluded for failing to comply with FRE 702
`
`and 705.
`
`II.
`
`Irrelevant and Unauthenticated Evidence
`PO fails to authenticate and/or establish any relevance for exhibits 2004-2012,
`
`2014, 2020, rendering these exhibits inadmissible under FRE 401 and 901. First,
`
`PO has not offered any evidence to authenticate Exhibits 2011 and 2014. PO also
`
`has not offered any timely evidence to authenticate Exhibits 2004-2010, 2012, and
`
`2020 under FRE 901. Petitioners filed their objections on March 9, 2017. See Paper
`
`27. On May 31, 2017, PO submitted Exhibits 2083 and 2091 in an attempt to cure
`
`Petitioners’ FRE 901 objections to Exhibits 2004-2010, 2012, and 2020. Because
`
`Exhibits 2083 and 2091 were untimely under 37 C.F.R. § 42.64(b)(2) (requiring
`
`supplemental evidence within ten business days of objections), Exhibits 2083 and
`
`2091 cannot cure Petitioners’ objections to these exhibits. Therefore, the exhibits
`
`should be excluded under FRE 901. Even if PO’s untimely supplemental evidence
`
`is considered, Exhibits 2011 and 2014 remain inadmissible under FRE 901 because
`
`no evidence establishes their authenticity.
`
`Second, PO has not established that any of Exhibits 2004-2012, 2014, and
`
`7
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`
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`IPR2016-01517
`Patent 7,134,505
`2020 is relevant to any issue in this IPR. PO relies on Exhibits 2004-2008 and 2020
`
`in an effort to establish industry praise for the claimed inventions. POR at 27-28.
`
`But PO simply asserts without evidence or even argument that “[t]hese articles praise
`
`the StackFRAC system as embodied in claim 1[sic], i.e., the overall combination of
`
`claimed elements.” Id. at 27. Not one of these exhibits mentions the long list of
`
`steps recited in claims 23 and 27 of the ’505 Patent, which require a series of steps
`
`performed in an open hole using three solid body packers and two ball drop sliding
`
`sleeves. Because PO has failed to establish that any alleged praise or recognition is
`
`due to something actually covered by the claims of the ’505 Patent, this purported
`
`evidence is simply irrelevant and should be excluded under FRE 401.
`
`PO does not cite Exhibit 2009 in its briefing, but McGowen mentions it in his
`
`expert declaration. Ex. 2051 at 44, 45. McGowen refers to the exhibit as mentioning
`
`the “StackFRAC” and “StackPACK” systems and as noting that the “open-hole ball
`
`drop system” is typically associated with Packers Plus.
`
`Id. McGowen does not
`
`assert that the exhibit discusses or relates to any system or method that would
`
`infringe any challenged claim. Therefore, it is irrelevant to patentability of the
`
`challenged claims and should be excluded under FRE 401.
`
`Similarly, PO relies on Exhibit 2010 to explain the “efficiency benefit of open
`
`hole ball drop technology” without ever even asserting that the “OHMS” (Open Hole
`
`Multi Stage) technology has any relationship to the method recited in the challenged
`
`8
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`
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`IPR2016-01517
`Patent 7,134,505
`claims. POR at 26. Exhibit 2010 specifically mentions that its “OHMS” technique
`
`includes “cemented completions,” which “eliminates the need for external zonal
`
`isolation devices.” Ex. 2010 at 3; see also McGowen Tr. (Ex. 1038) at 162:6-13
`
`(agreeing that some unknown percentage of OHMS systems in Ex. 2010 (Ghiselin)
`
`are not the same as the ’505 Patent claimed open-hole multistage completions).
`
`Thus, whatever Exhibit 2010 has to say about “OHMS” techniques in the industry
`
`is not relevant to patentability of the methods recited in the challenged claims given
`
`the lack of correlation between “OHMS” techniques described in Ghiselin and the
`
`challenged claims.
`
`Exhibits 2011 and 2012 are not cited by PO anywhere for any purpose, and
`
`thus, there is no evidence indicating that these exhibits are relevant to the challenged
`
`claims. Exhibit 2014 discusses attitudes about fracturing in 2007, and does not
`
`provide any information about perceived attitudes about fracturing at the time of
`
`alleged invention prior to 2001, which is the purpose for which PO cites the exhibit.
`
`POR at 22-23, 63. Exhibits 2011, 2012, and 2014 are therefore irrelevant and should
`
`be excluded under FRE 401.
`
`Exhibits 2045-2047, 2054, 2061, and 2086-2089 are also irrelevant and should
`
`be excluded under FRE 401. PO relies on Exhibits 2045-2047 in its attempt to show
`
`non-obviousness of the challenged claims without ever offering any showing that
`
`what is discussed in those exhibits relates to the challenged claims. POR at 29-30,
`
`9
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`
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`IPR2016-01517
`Patent 7,134,505
`40. Thus, these exhibits are also irrelevant and should be excluded under FRE 401.
`
`PO relies on Exhibits 2054 and 2061 to allege industry praise for the
`
`challenged claims. POR at 27, 30-31. But neither Exhibit 2054 nor PO provides a
`
`basis for concluding that the fracturing and acid stimulation technology described in
`
`the reference are the methods recited in the challenged claims. Exhibit 2054 does
`
`not even mention open hole. Similarly, neither Exhibit 2061 nor PO provides a basis
`
`for concluding that any praise is attributable to the challenged claims. Again, there
`
`is no mention in Exhibit 2061 of open hole fracturing, for example, which is required
`
`by the challenged claims. Thus, Exhibits 2054 and 2061 are irrelevant and should
`
`be excluded under FRE 401.
`
`Neither PO nor PO’s expert cites or relies upon Exhibits 2086-2089. As a
`
`result, these exhibits are not relevant and should be excluded under FRE 401.
`
`III. Hearsay Evidence
`PO also submits Exhibits 2010, 2013, 2015, 2016-2019, 2045, 2047, 2052-
`
`2055, 2058-2059, 2085, 2097, all of which are out of court statements offered for
`
`the truth of the matter asserted that do not fall within any hearsay exception and thus
`
`should be excluded under FRE 802.
`
`PO relies upon Exhibit 2010 to establish what persons of ordinary skill in the
`
`art thought several years before its purported publication (POR at 14-15), that “open
`
`hole ball drop technology … contradicted years old conventional wisdom” (POR at
`
`10
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`
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`IPR2016-01517
`Patent 7,134,505
`26), and that “OHMS” systems have a certain market share (POR at 40-41). These
`
`assertions rely on statements in Exhibit 2010 being true. Exhibit 2010 is hearsay for
`
`which no exception applies. The closest possible exception would be in FRE
`
`803(17) for market quotations, lists, directories, or other compilations that are
`
`generally relied on by the public or by persons in particular occupations, but Exhibit
`
`2010 does not fall within this exception because it is not a market compilation that
`
`is generally relied on by the public or by persons in a particular occupation. Even
`
`assuming that Exhibit 2010 is what it purports to be, an unsupported proposition in
`
`itself, there is no evidence that Exhibit 2010 is anything other than a one-off report
`
`by a consulting firm based on its own industry survey, which itself is hearsay. Thus,
`
`Exhibit 2010 should be excluded under FRE 802.
`
`Exhibits 2013, 2015, and 2055 all purport to be publications that PO relies
`
`upon for the truth of the matters asserted. PO relies on Exhibit 2013 for the
`
`proposition that “the patented technology was met with skepticism.” POR at 23. PO
`
`relies upon Exhibit 2013 for the truth of the matter asserted because it quotes Exhibit
`
`2013 as stating that same proposition.
`
`Id. PO also relies upon Exhibit 2013 as
`
`quoting a Packers Plus article recognizing itself as developing and deploying the
`
`first commercial OHMS systems in 2001. Id. at 30. That is hearsay within hearsay.
`
`PO relies upon Exhibit 2015, a Packers Plus paper, to establish that “Packers Plus
`
`has worked to counteract” the alleged “accepted wisdom” in the industry and that
`
`11
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`
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`IPR2016-01517
`Patent 7,134,505
`Packers Plus achieved “surprising” results. POR at 24. Exhibit 2015 purports to
`
`compare the results of OHMS fractured wells to cemented fractured wells. If the
`
`assertions in Exhibit 2015 are not true, then there are no “surprising” results. Thus,
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`Exhibit 2015 is offered to prove the truth of the matter asserted and is inadmissible
`
`under FRE 802, for which no hearsay exception applies. PO relies on Exhibit 2055
`
`for the truth of the matter asserted. PO cites Exhibit 2055 to establish similarity
`
`between a Baker Hughes’ commercial offering and a Packers Plus commercial
`
`offering. POR at 36-37. To support that assertion, the statement in Exhibit 2055
`
`“lumping these competing systems together” must also be true. Exhibit 2055 is
`
`offered for the truth of the matter asserted and does not fall within any hearsay
`
`exception. Thus, Exhibits 2013, 2015 and 2055 should be excluded under FRE 802.
`
`PO relies on Exhibit 2017 in an attempt to “show that[]—contrary to the
`
`conventional wisdom . . . the patented technology achieved full fracture coverage of
`
`the wellbore,” which it asserts constitutes “surprising” results, and to establish the
`
`features of the StackFRAC system. POR at 35-36. Exhibit 2017 is therefore
`
`inadmissible hearsay under FRE 802 because PO is relying upon the document to
`
`establish the truth of the matters asserted, and no hearsay exception applies.
`
`PO Exhibits 2016 and 2085, deposition transcripts of Ali Daneshy, are
`
`inadmissible hearsay. PO cites Exhibit 2016 for the propositions that claims 23 and
`
`27 require fracturing through an open hole, non-vertical segment, that a POSITA
`
`12
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`IPR2016-01517
`Patent 7,134,505
`believed various propositions, that the industry was slow to adopt new technology,
`
`that the Baker Hughes Fracpoint system possessed certain features, that certain
`
`systems were commercially successful, and that Ellsworth did not involve fracturing.
`
`POR at 13-14, 16, 36, 41, 55. PO cites Exhibit 2085 for the proposition that a
`
`POSITA would have had certain opinions prior to 2001. POR at 14-15. All of these
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`are inadmissible hearsay for which no exception applies, such that Exhibits 2016 and
`
`2085 should be excluded under FRE 802.
`
`PO relies on Exhibits 2018-2019 and 2052-2053, which purport to be Packers
`
`Plus or Baker Hughes documents, in an attempt to show Baker Hughes’s alleged
`
`recognition of Packers Plus, copying, functionality of systems, and sales volumes it
`
`asserts establish commercial success. POR at 32-36, 39, 42. In each citation to these
`
`documents, PO is relying on these documents for the truth of the matter asserted.
`
`For example, attempting to establish features of accused products and attempting to
`
`establish sales numbers are relying on the documents to establish the truth of the
`
`matter asserted. Also, relying on a purported Baker Hughes’s document to establish
`
`facts about Packers Plus is also improper under FRE 802. Finally, relying on
`
`purported Baker Hughes’s documents to establish a comparison between Baker
`
`Hughes’s products and Packers Plus’s products is also relying on the documents for
`
`the truth of the matter asserted. All of these exhibits are inadmissible hearsay and
`
`should be excluded under FRE 802, and no hearsay exception applies.
`
`13
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`IPR2016-01517
`Patent 7,134,505
`PO relies on Exhibit 2045 in an effort to show that Packers Plus’s StackFRAC
`
`system was “the first ball drop system created for open hole horizontal wells” and
`
`that the system “is partly responsible for creating access to vast reservoirs of oil and
`
`natural gas in North America that were previously considered uneconomic to
`
`produce.” POR at 29. Exhibit 2045 is inadmissible hearsay under FRE 802 because
`
`PO relies on it for the truth of the matter asserted, and no hearsay exception applies.
`
`PO relies on Exhibit 2047 in an effort to establish that Packers Plus’s
`
`StackFRAC system was “the first open hole ball drop system in the industry” and in
`
`an effort to establish that “Packers Plus [is] the inventor of open-hole ball drop
`
`systems.” POR at 30-31; see also id. at 40-41. PO is relying on Exhibit 2047 for
`
`the truth of the matter asserted, rendering it inadmissible hearsay under FRE 802 for
`
`which no hearsay exception applies.
`
`PO relies on Exhibit 2058, which purports to be a Packers Plus video
`
`regarding the StackFRAC system, to establish a proposition regarding fracture
`
`initiation (POR at 2-3) and the features of the StackFRAC system (POR at 35-36).
`
`Both of these constitute inadmissible hearsay under FRE 802 because the exhibit is
`
`offered to prove the truth of the matters asserted, and no hearsay exception applies.
`
`PO relies on Exhibit 2059, which purports to be a Baker Hughes video
`
`regarding a Fracpoint system, to establish the features of the Baker Hughes system.
`
`POR at 35-36. Because PO is offering Exhibit 2059 to prove the truth of the matter
`
`14
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`IPR2016-01517
`Patent 7,134,505
`asserted and no hearsay exception applies, it is inadmissible under FRE 802.
`
`PO relies on Exhibit 2097, which purports to be a transcript from a Canadian
`
`trial reflecting testimony of a Baker Hughes witness, in an attempt to establish
`
`copying by Baker Hughes. POR at 34 n.4. Exhibit 2097 is inadmissible hearsay
`
`because PO relies on it for the truth of the matter asserted, and no hearsay exception
`
`applies.
`
`IV. Untimely Supplemental Evidence
`PO submits Exhibits 2083 and 2091 in an attempt to cure Petitioners’
`
`objections to evidence. PO submitted Exhibits 2003-2043 with its preliminary
`
`response on November 25, 2016. POPR at vi-viii. After the Board instituted review,
`
`Petitioner timely objected to many of these exhibits on March 9, 2017 under 37
`
`C.F.R. § 42.64(b)(1). Paper 27. Under 37 C.F.R. § 42.64(b)(2), PO had ten business
`
`days (until March 23) to submit supplemental evidence in an attempt to cure those
`
`objections. PO did nothing. On May 31, 2017, PO filed its POR attaching Exhibits
`
`2083 and 2091 in an attempt to cure Petitioners’ much earlier objections. This
`
`evidence is untimely under 37 C.F.R. § 42.64(b)(2) and should be excluded.
`
`Dated: September 28, 2017
`
`Respectfully submitted,
`/Jason Shapiro/
`Jason Shapiro
`Reg. No. 35,354
`Counsel for Petitioners
`
`15
`
`
`
`CERTIFICATE OF SERVICE
`I certify that the foregoing PETITIONERS’ MOTION TO EXCLUDE
`
`EVIDENCE UNDER 37 C.F.R. § 42.64(c) and the present CERTIFICATE OF
`
`SERVICE were served September 28, 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: September 28, 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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