Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`PATENT TRIAL AND APPEAL BOARD
`
`HALLIBURTON ENERGY SERVICES, INC.
`Petitioner
`
`v.
`
`U.S. WELL SERVICES, LLC
`
`Patent Owner
`
`Case No. IPR2021-01065
`Patent No. 9,840,901
`
`DECLARATION OF DR. ROBERT DURHAM
`
`HALLIBURTON EXHIBIT 1002, Page 1
`
`

`

`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`TABLE OF CONTENTS
`
`V.
`
`I.
`II.
`III.
`IV.
`
`INTRODUCTION ......................................................................................10
`EXPERIENCE AND QUALIFICATIONS..............................................10
`TASK SUMMARY AND MATERIALS REVIEWED ..........................15
`SUMMARY OF CONCLUSIONS AND GROUNDS FOR
`CHALLENGE ............................................................................................15
`LEGAL STANDARDS ..............................................................................16
`A. Level of Ordinary Skill in the Art ............................................................16
`B. Legal Standard for Claim Construction ...................................................17
`C. Anticipation ..............................................................................................19
`D. Obviousness .............................................................................................19
`E. Priority Date .............................................................................................22
`VI. OVERVIEW OF THE CHALLENGED PATENT ................................24
`A. The Subject Matter of the Challenged Patent ..........................................24
`B. The Challenged Claims of the ’901 Patent ..............................................26
`C. Prosecution History of the ’901 Patent ....................................................29
`a. Originally Filed Claims on October 14, 2016 .....................................29
`b. USPTO Examiner Issues Office Action on February 16, 2017 ..........32
`c. Response to Office Action on May 16, 2017 ......................................35
`D. Priority Date of the ’901 Patent ...............................................................36
`E. Comparison of Asserted References to Prior Art Discussed During
`Prosecution ...............................................................................................38
`VII. LEVEL OF ORDINARY SKILL IN THE ART .....................................39
`VIII. CLAIM CONSTRUCTION ......................................................................39
`A. “communication means” (claim 2) ..........................................................39
`B. “silica exposure zone” (claims 9, 18) ......................................................40
`IX. OVERVIEW OF THE PRIOR ART ........................................................40
`A. Hardin (Ex. 1006).....................................................................................40
`a. Status of Hardin ...................................................................................40
`
`HALLIBURTON EXHIBIT 1002, Page 2
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`

`

`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`X.
`
`b. Overview of the Disclosure of Hardin ................................................41
`B. OSHA References: OSHA-Silica (Ex. 1010) and OSHA-3763
`(Ex. 1009) .................................................................................................41
`a. Overview of OSHA .............................................................................41
`b. Status of OSHA-Silica (Ex. 1010) ......................................................42
`c. Overview of the Disclosure of OSHA-Silica (Ex. 1010) ....................48
`d. Status of OSHA-3763 (Ex. 1009) .......................................................50
`e. Overview of the Disclosure of OSHA-3763 (Ex. 1009) .....................54
`C. Dykstra (Ex. 1007) ...................................................................................57
`a. Status of Dykstra .................................................................................57
`b. Overview of the Disclosure of Dykstra ...............................................57
`D. Coli (Ex. 1008) .........................................................................................57
`a. Status of Coli .......................................................................................57
`b. Overview of the Disclosure of Coli ....................................................58
`GROUND 1: OBVIOUSNESS OVER HARDIN ....................................58
`A.
`Independent Claim 1 ................................................................................59
`a. 1(Preamble): “A hydraulic fracturing system for fracturing a
`subterranean formation comprising:” ..................................................59
`b. 1(a): “a pump in communication via pump components with a
`wellbore that intersects the formation, and that pressurizes fluid
`in the wellbore, the fluid comprising a fracturing fluid slurry;” .........60
`c. 1(b): “hydraulic fracturing system components for making the
`fracturing fluid slurry; and” .................................................................62
`d. 1(c): “a monitoring system that selectively captures and
`transmits real time images of at least one of the hydraulic
`fracturing system components or pump components to enable
`remote monitoring of the at least one of the hydraulic fracturing
`system components or pump components;” ........................................67
`e. 1(d): “wherein the monitoring system selectively captures and
`transmits real time images of an opening to a vessel, so that a
`level within the vessel is discernible in the images.” ..........................73
`B. Dependent Claims 2-12 ............................................................................75
`
`HALLIBURTON EXHIBIT 1002, Page 3
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`

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`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`a. Claim 2: “The hydraulic fracturing system of claim 1, wherein
`the monitoring system comprises: a camera; a controller; a
`display; a human machine interface; and communication means
`between the camera, controller, human machine interface, and
`the display” ..........................................................................................75
`b. Claim 3: “The hydraulic fracturing system of claim 1, wherein
`the display comprises a monitor from which the images are
`viewed.” ...............................................................................................77
`c. Claim 4: “The hydraulic fracturing system of claim 3, wherein
`the display is disposed within a passenger compartment
`mounted to a fluid blender, so that the images can be viewed by
`operations personnel in the passenger compartment.” ........................77
`d. Claim 5: “The hydraulic fracturing system of claim 1, wherein
`the hydraulic fracturing components are selected from the group
`consisting of a chemical tanker, a hydration unit, a hopper, a
`blender unit, and auger associated with a blender unit, a
`conveyor, and an acid tanker.” ............................................................81
`e. Claim 6: “The hydraulic fracturing system of claim 1, wherein
`the pump components are selected from the group consisting of
`intake piping, discharge piping, hoses, fittings, and valves
`associated with a hydraulic fracturing pump.” ....................................83
`f. Claim 7: “The hydraulic fracturing system of claim 1, wherein
`the monitoring system comprises a camera disposed on a trailer,
`and wherein the hydraulic fracturing components or pump
`components comprise hose or pipe connections on the trailer.” .........84
`g. Claim 8: “The hydraulic fracturing system of claim 1, wherein
`the monitoring system comprises a camera disposed on a first
`trailer, and wherein the hydraulic fracturing components or
`pump components comprise hose or pipe connections on a
`second trailer that is adjacent the first trailer.” ...................................84
`h. Claims 9-11 .........................................................................................86
`i. Claim 12: “The hydraulic fracturing system of claim 1, wherein
`the vessel contains chemicals.” ...........................................................90
`Independent Claim 13 ..............................................................................91
`
`C.
`
`HALLIBURTON EXHIBIT 1002, Page 4
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`

`

`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`a. 13(Preamble): “A method of fracturing a subterranean
`formation comprising:” .......................................................................91
`a. 13(a): “driving a pump to pressurize fluid in a hydraulic
`fracturing system containing hydraulic fracturing components
`and pump components; fracturing the formation by directing
`the pressurized fluid into a wellbore that intersects the
`formation; and” ....................................................................................91
`b. 13(b): “monitoring the hydraulic fracturing system with a
`monitoring system by: obtaining images of hydraulic fracturing
`components and pump components of the hydraulic fracturing
`system; and viewing the images remotely;”........................................91
`c. 13(c): “wherein the monitoring system selectively captures and
`transmits real time images of an opening to a vessel, so that a
`level within the vessel is discernible in the images. ...........................93
`D. Dependent Claims 14-18 ..........................................................................93
`a. Claim 14: “The method of claim 13, wherein the hydraulic
`fracturing components and pump components are disposed in
`areas where there is a greater possibility of personal injury than
`where the images are being viewed.” ..................................................93
`b. Claim 15: “The method of claim 13, wherein the step of
`obtaining images is performed by a camera that is disposed
`adjacent at least one of the hydraulic fracturing components or
`the pump components.” .......................................................................94
`c. Claim 16: “The method of claim 15, wherein the step of
`viewing is performed within an enclosure.” .......................................95
`d. Claim 17: “The method of claim 13, further comprising:
`selectively obtaining images of different hydraulic fracturing
`components or pump components on a single monitor.” ....................95
`e. Claim 18: “The method of claim 13, wherein the hydraulic
`fracturing components and pump components comprise
`discharge piping that is in fluid communication with the pump,
`and vessel openings, and wherein the images if of [sic] the
`hydraulic fracturing system include images of at least one of a
`silica exposure zone, hose connections, a high pressure zone
`that includes discharge pumps or discharge pipes or both, a
`
`HALLIBURTON EXHIBIT 1002, Page 5
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`

`

`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`chemical exposure zone, high voltage zones, and natural gas
`supply piping.” ....................................................................................96
`XI. GROUND 2: OBVIOUSNESS OVER HARDIN IN VIEW OF
`OSHA-Silica and OSHA-3763 ...................................................................96
`XII. GROUND 3: OBVIOUSNESS OVER DYKSTRA IN VIEW OF
`HARDIN ......................................................................................................99
`A. Reasons to Combine Dykstra and Hardin ................................................99
`B. Disclosure of Hardin in view of Dykstra ...............................................101
`a. Independent Claim 1 .........................................................................101
`b. Dependent Claims 2-12 .....................................................................109
`c. Independent Claim 13 .......................................................................116
`d. Dependent Claims 14-18 ...................................................................118
`XIII. GROUNDS 4-6: OBVIOUSNESS IN VIEW OF COLI .......................121
`A. Reasons to Combine ...............................................................................121
`B. Disclosure in view of Coli .....................................................................123
`a. Claim 4: “The hydraulic fracturing system of claim 3, wherein
`the display is disposed within a passenger compartment
`mounted to a fluid blender, so that the images can be viewed by
`operations personnel in the passenger compartment.” ......................123
`XIV. SECONDARY CONSIDERATIONS .....................................................125
`XV. CONCLUSION .........................................................................................125
`
`HALLIBURTON EXHIBIT 1002, Page 6
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`

`

`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`LIST OF EXHIBITS
`
`Ex.
`
`Description
`
`1001
`
`1002
`
`1003
`
`1004
`
`1005
`
`1006
`
`1007
`
`1008
`
`1009
`
`1010
`
`U.S. Patent No. 9,840,901 to Oehring and Hinderliter (filed Oct. 14, 2016
`and issued Dec. 12, 2017) (“’901 Patent” or “Challenged Patent”)
`
`Declaration of Dr. Robert A. Durham in Support of Petition for Inter
`Partes Review of U.S. Patent No. 9,840,901, with CV attached as
`Appendix A (“Durham”)
`
`File History of U.S Patent No. 9,840,901 (App. No. 15/293,681) (“’901
`Patent File History”)
`
`U.S. Patent Publication No. 2016/0326854 (filed as App. No. 15/202,085
`on July 5, 2016 and published Nov. 10, 2016) (“’085 App”)
`
`File History of U.S. Patent Provisional Application No. 62/242,566 (filed
`Oct. 16, 2015) (“Provisional”)
`
`U.S. Patent Publication No. 2015/0144336A1 to Hardin et al. (filed Nov.
`28, 2014 and published May 28, 2015) (“Hardin”)
`
`U.S. Patent Publication No. 2008/0236818A1 to Dykstra et al. (filed
`Mar. 27, 2007 and published Oct. 2, 2008) (“Dykstra”)
`
`U.S. Patent Publication No. 2012/0255734 to Coli et al. (filed Apr. 6,
`2012 and published Oct. 11, 2012) (“Coli”)
`
`U.S. Department of Labor, OSHA, “Hydraulic Fracturing and Flowback
`Hazards Other than Respirable Silica” (OSHA 3763-12 2014) (“OSHA
`3763”), available at:
`https://www.osha.gov/sites/default/files/publications/OSHA3763.pdf
`
`U.S. Department of Labor, OSHA-NIOSH Hazard Alert: “Worker
`Exposure to Silica during Hydraulic Fracturing” (DSTEM 6/2012)
`(“OSHA-Silica”), available at:
`https://www.osha.gov/dts/hazardalerts/hydraulic_frac_hazard_alert.pdf
`
`HALLIBURTON EXHIBIT 1002, Page 7
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`

`

`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`1011
`
`(not used)
`
`1012
`
`1013
`
`1014
`
`1015
`
`1016
`
`1017
`
`1018
`
`1019
`
`U.S. Department of Labor, OSHA News Release (dated June 21, 2012),
`available at:
`https://www.osha.gov/news/newsreleases/national/06212012
`
`U.S. Department of Labor, OSHA Homepage (archived July 22, 2012),
`available at:
`https://web.archive.org/web/20120722160756/https://www.osha.gov/
`
`U.S. Department of Labor, OSHA Industry/Hazard Alerts Index
`(archived August 1, 2012), available at:
`https://web.archive.org/web/20120801064838/http://www.osha.gov/haza
`rdindex.html
`
`U.S. Department of Labor, OSHA-NIOSH Hazard Alert: Worker
`Exposure to Silica during Hydraulic Fracturing (archived August 8,
`2012), available at:
`https://web.archive.org/web/20120808200919/http://www.osha.gov/dts/h
`azardalerts/hydraulic_frac_hazard_alert.html
`
`Center for Disease Control, NIOSH Numbered Publications (archived
`July 21, 2012), available at:
`https://web.archive.org/web/20120721180008/http://www.cdc.gov/niosh/
`pubs/all_date_desc_nopubnumbers.html
`
`U.S. Department of Labor, OSHA Homepage (archived April 6, 2015),
`available at:
`https://web.archive.org/web/20150406152927/https://www.osha.gov/
`
`U.S. Department of Labor, OSHA Publications (“All”) (archived June
`26, 2015), available at:
`https://web.archive.org/web/20150626140537/https://www.osha.gov/pls/
`publications/publication.html
`
`U.S. Department of Labor, OSHA Publications (organized topically)
`(archived April 6, 2015), available at:
`
`HALLIBURTON EXHIBIT 1002, Page 8
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`

`

`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`https://web.archive.org/web/20150406054914/https://www.osha.gov/pls/
`publications/publication.AthruZ?pType=Industry
`
`1020-1029
`
`(not used)
`
`1030
`
`1031
`
`1032
`
`1033
`
`1034
`
`1035
`
`Mary Ann Mullaney et al., “A Shift to Sand: Spotlight on Silica Use in
`Fracking,” Law360 (Aug. 2, 2012), available at:
`https://www.law360.com/articles/366057/a-shift-to-sand-spotlight-on-
`silica-use-in-fracking;
`https://www.law360.com/articles/366057/print?section=energy
`
`Bernard Goldstein et al., “The Role of Toxicological Science in Meeting
`the Challenges and Opportunities of Hydraulic Fracturing,”
`TOXICOLOGICAL SCIENCES 139(2), p. 271-283 (Apr. 4, 2014)
`
`Donna Heidel et al., “Safety and Health Management Aspects for
`Handling Silica-based Products and Engineered Nanoparticles in
`Sequences of Shale Reservoir Stimulations Operations” (SPE 18334),
`SPE International (2014)
`
`Henry Chajet et al., “OSHA Issues Alert on Non-Silica Fracking
`Hazards,” NAT’L LAW REVIEW (Jan. 30, 2015), available at: 2015 WLNR
`2899814
`
`“OSHA Issues Hazard Alert for Fracking and Drilling,” INDUSTRIAL
`SAFETY & HYGIENE NEWS (ISHN) (Jan. 6, 2015), available at:
`https://www.ishn.com/articles/100386-osha-issues-hazard-alert-for-
`fracking-and-drilling
`
`Mike Soraghan, “OSHA Issues Hazard Alert for Fracking and Drilling,”
`ENVIRONMENTAL & ENERGY NEWS: ENERGYWIRE (Dec. 10, 2014),
`available at:
`https://www.eenews.net/energywire/stories/1060010241/search?keyword
`=osha+issues+hazard+alert+for+fracking+and+drilling
`
`1036
`
`(not used)
`
`HALLIBURTON EXHIBIT 1002, Page 9
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`

`

`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`1037
`
`U.S. Patent No. 9,410,410 to Broussard et al., entitled “System for
`Pumping Hydraulic Fracturing Fluid Using Electric Pumps” (filed as
`App. No. 13/679,689)
`
`Other than prosecution histories, Ex. 1003 and Ex. 1005, all citations to exhibits
`
`reference original page numbers found in the underlying document, and all emphases
`
`are added.
`
`I.
`
`INTRODUCTION
`
`1.
`
`My name is Dr. Robert A. Durham. I make this declaration based upon
`
`my own personal knowledge and, if called upon to testify, would testify competently
`
`to the matters contained herein.
`
`2.
`
`I have been asked to provide technical assistance in the inter partes
`
`review of U.S. Patent No. 9,840,901, which I may abbreviate as “the ’901 Patent”
`
`or refer to as the “Challenged Patent.” This declaration is a statement of my opinions
`
`on issues related to the unpatentability of claims 1-18 of the ’901 Patent. I am being
`
`compensated at my normal rate of $305 per hour for my analysis, plus
`
`reimbursement for expenses. My compensation does not depend on the content of
`
`my opinions or the outcome of this proceeding.
`
`II.
`
`EXPERIENCE AND QUALIFICATIONS
`
`3.
`
`In formulating my opinions, I have relied upon my knowledge, training,
`
`and experience in the relevant art. My qualifications are stated more fully in my
`
`HALLIBURTON EXHIBIT 1002, Page 10
`
`

`

`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`curriculum vitae, which has been provided as Appendix A. My CV also lists
`
`publications on which I am a named author and identifies parties on behalf of whom
`
`I have previously provided expert testimony within the past four years. Here, I
`
`provide a brief summary of my qualifications.
`
`4.
`
`I am a consulting engineer with experience in a number of technical
`
`areas. I have expertise in the electrification of the oil and gas industry from drilling
`
`and completion to downstream. I have been working with oil field production
`
`companies, refining and chemical plants and equipment manufacturers and
`
`technology development companies, as a consultant, for nearly twenty years. My
`
`work relates to the subject matter of the Challenged Patent, which I describe below
`
`in Section VI (“Overview of the Challenged Patent”).
`
`5.
`
`I received my Bachelor of Science in Electrical Engineering and Master
`
`of Engineering and Technology Management degrees, from the University of Tulsa
`
`in 1992 and 1997, respectively. After years of professional work and research I
`
`received my Ph.D. in Engineering Management from Kennedy Western University
`
`in 2004.
`
`6.
`
`I have also served in positions of leadership in the Petroleum and
`
`Chemical Industry Committee (PCIC) of the Institute of Electrical and Electronics
`
`Engineers (IEEE). IEEE is the world’s largest technical professional association.
`
`HALLIBURTON EXHIBIT 1002, Page 11
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`

`

`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`The PCIC is the premier forum for the exchange of electrical applications technology
`
`related to the petroleum and chemical industry. From 2005 – 2012, I served as
`
`secretary, then vice chair and then ultimately chair of the Production Subcommittee
`
`of the PCIC. The Production Subcommittee is the primary method for PCIC
`
`members to communicate technical papers related to drilling, well head and facilities
`
`operations of oil and gas wells. In 2013, I was appointed as Vice-Chair of the
`
`Standards Subcommittee of the PCIC, a role which transitioned to Chair in 2014. I
`
`have served as Chair to date. The Standards subcommittee of the PCIC is the Sponsor
`
`of IEEE standards relating to electrification and electrical equipment operations in
`
`the Oil and Gas Industry. The PCIC Standards Subcommittees sponsors 50 electrical
`
`and oil and gas related standards.
`
`7.
`
`My peers have recognized my contributions, particularly in the area of
`
`electrical equipment in the oil and gas industry. Because of this recognition, in 2019
`
`I was elevated to the grade of Fellow of the IEEE for “contributions to submersible
`
`electrical equipment analysis and multi-point ground methods in hazardous
`
`petroleum and chemical environments.” The IEEE Fellow grade is limited to the
`
`top 0.1% of the membership of IEEE worldwide.
`
`8.
`
`I have worked directly in the area of electrification of oil and gas fields
`
`both as an employee and as a consulting engineer. From 2000 until the end of 2002
`
`HALLIBURTON EXHIBIT 1002, Page 12
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`

`

`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`I was employed as Manager of Electric Infrastructure for New Dominion, LLC
`
`(NDL). In that capacity I administratively owned and was responsible for all
`
`electrical equipment including overhead power lines, transformers, switchgear,
`
`drives and motors throughout NDL’s production, exploration and drilling areas.
`
`9.
`
`After a brief stint as Vice President for EDG Power Group, responsible
`
`for Engineering and Project Management of generation and co-generation facilities
`
`across the U.S., I transitioned to the role of consulting engineer. In that role I have
`
`served as consulting engineer relating to the design, construction, analysis of all
`
`kinds of power systems, especially those in the oil and gas industry. This has
`
`included not only design and selection of equipment but also analysis of failures of
`
`equipment in the oil and gas field from drilling / completion sites to production
`
`facilities, midstream and downstream (refinery) locations.
`
`10.
`
`In addition, I am a principal of PEDOCS, Inc., an oil and gas production
`
`company operating over 50 oil and gas production wells in Oklahoma. As such, I
`
`am familiar with operations of oil and gas wells including well stimulation,
`
`completion, hydraulic fracturing and production.
`
`11.
`
`I have been familiar with oil and gas drilling, fracturing (fracking) and
`
`completion operations for nearly twenty years. In addition to being responsible for
`
`interfacing with drilling and fracturing operations with regards to electrical needs as
`
`HALLIBURTON EXHIBIT 1002, Page 13
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`

`

`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`an employee of New Dominion, LLC, I have been further educated about drilling,
`
`fracturing and operations as I have consulted and investigated incidents on multiple
`
`well drilling, fracturing and completion pad sites over my engineering consulting
`
`engagements.
`
`12.
`
`I am familiar with Occupational Safety and Health Administration
`
`(“OSHA”) and its responsibilities at oil and gas locations. I have consulted and
`
`investigated incidents on multiple oil and gas sites where OSHA has also performed
`
`investigations with regard to injuries and fatalities that have occurred at oil and gas
`
`locations, including drilling, fracturing and completion operations. As Principal
`
`Scientist of THEWAY Labs, part of my responsibilities include overseeing the
`
`Health Safety and Environmental (HSE) program at THEWAY Labs, including
`
`establishing policies and procedures commensurate with OSHA requirements at all
`
`locations, including requirement for oil and gas sites.
`
`13.
`
`I am the author or co-author of over fifty published papers and five
`
`books. A list of publications that I have authored over the last thirty years is included
`
`in my professional CV, which is attached as Appendix A.
`
`14.
`
`Therefore, based on my education, professional experience of 29 years,
`
`and scholarly books and publications, I am an expert in the relevant field of the
`
`Challenged Patent at issue here and have been an expert in this field since before the
`
`HALLIBURTON EXHIBIT 1002, Page 14
`
`

`

`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`Challenged Patent was filed with the United States Patent and Trademark Office
`
`(“USPTO”). I am familiar with how a person having ordinary skill in the art would
`
`have understood and used the terminology found in the ’901 Patent at the time of its
`
`filing.
`
`III. TASK SUMMARY AND MATERIALS REVIEWED
`
`15.
`
`I have been asked to review the Challenged Patent and its prosecution
`
`history, to provide an understanding of the technology relevant to the Challenged
`
`Patent, to review certain prior-art references, and analyze whether or not those
`
`references disclose or teach limitations of claims from the Challenged Patent. The
`
`opinions stated in this declaration are from the perspective of a person of ordinary
`
`skill in the art (POSITA).
`
`16.
`
`In forming my opinions, I have reviewed the Challenged Patent, its
`
`prosecution history and referenced cited by the Examiner, the materials cited in the
`
`List of Exhibits, and the materials cited throughout my declaration.
`
`IV.
`
`SUMMARY OF CONCLUSIONS AND GROUNDS FOR
`CHALLENGE
`
`17. After reviewing the materials identified in the List of Exhibits, I have
`
`concluded that each of the Challenged Claims of the ’901 Patent would have been
`
`obvious to a person of ordinary skill in the art, based on the following grounds.
`
`HALLIBURTON EXHIBIT 1002, Page 15
`
`

`

`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`Ground
`1.
`2.
`3.
`4.
`5.
`
`6.
`
`’901 Claims
`1-18
`1-18
`
`1-18
`4
`4
`
`4
`
`Basis for Challenge
`Obvious over Hardin
`Obvious over Hardin in view of OSHA-Silica and
`OSHA-3763
`Obvious over Dykstra in view of Hardin
`Obvious over Hardin in view of Coli
`Obvious over Hardin in view OSHA-Silica, OSHA-
`3763 and further in view of Coli
`Obvious over Dykstra in view of Hardin and further
`in view of Coli
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`V.
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`LEGAL STANDARDS
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`A.
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`LEVEL OF ORDINARY SKILL IN THE ART
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`18. When interpreting a patent, I understand that it is important to identify
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`the relevant art pertaining to the patent-in-suit as well as the level of ordinary skill
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`in that art at the time of the claimed invention. The “art” is the field of technology
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`to which the patent is related.
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`19.
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`I have been instructed by counsel that the person of ordinary skill in the
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`art (“POSITA”) is a hypothetical person who is presumed to know the relevant prior
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`art. I understand that the actual inventor’s skill is not determinative of the level of
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`ordinary skill. I further understand that the factors that may be considered in
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`determining the level of skill include: the types of problems encountered in the art;
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`prior art solutions to those problems; rapidity with which innovations are made;
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`sophistication of the technology; and educational level of active workers in the field.
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`HALLIBURTON EXHIBIT 1002, Page 16
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`

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`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
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`I understand that not all such factors may be present in every case, and one or more
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`of them may predominate.
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`B.
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`20.
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`LEGAL STANDARD FOR CLAIM CONSTRUCTION
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`I understand that the first step in determining whether a patent claim
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`would have been anticipated or obvious is to ascertain how a POSITA would have
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`understood the claim terms.
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`21.
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`I have been instructed by counsel on the law regarding claim
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`construction and patent claims, and I understand that a patent may include two types
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`of claims: independent claims and dependent claims. An independent claim stands
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`alone and includes only the limitations it recites. A dependent claim can depend
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`from an independent claim, or it can further depend from another dependent claim.
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`I understand that a dependent claim includes all the limitations that it recites, in
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`addition to all the limitations recited in the claim(s) from which it depends.
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`22.
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`It is my understanding that in proceedings before the USPTO, the
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`claims of a patent are to be construed under what is referred to as the “Phillips
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`standard.” I understand that this means that claim terms of a patent are given the
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`meaning the terms would have to a POSITA, in view of the description provided in
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`the patent itself and the patent’s file history.
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`HALLIBURTON EXHIBIT 1002, Page 17
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`

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`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`23.
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`I understand that to determine how a person of ordinary skill would
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`understand a claim term, one should look to those sources available that show what
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`a person of skill in the art would have understood the disputed claim language to
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`mean. I understand that, in construing a claim term, one looks primarily to the
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`intrinsic patent evidence, including the words of the claims themselves, the
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`remainder of the patent, and the patent’s prosecution history. I understand that
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`extrinsic evidence, which is evidence external to the patent and the prosecution
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`history, may also be useful in interpreting patent claims when the intrinsic evidence
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`itself is insufficient.
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`24.
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`I understand that words or terms should be given their ordinary and
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`accepted meaning unless it appears that the inventors were using them to mean
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`something else. In making this determination, the claims, the remainder of the
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`patent, and the prosecution history are of paramount importance. Additionally, the
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`patent and its prosecution history must be consulted to confirm whether the patentee
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`has acted as its own lexicographer (i.e., provided its own special meaning to any
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`disputed terms), or intentionally disclaimed, disavowed, or surrendered any claim
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`scope.
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`HALLIBURTON EXHIBIT 1002, Page 18
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`

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`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
`
`25.
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`In comparing the claims of the Challenged Patent to the prior art, I have
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`considered the Challenged Patent and its file history in light of the understanding of
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`a person of skill at the time of the alleged invention.
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`C.
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`26.
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`ANTICIPATION
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`It is my understanding that the claims of a patent are anticipated by a
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`prior art reference if each and every element of the claim is found either explicitly
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`or inherently in a single prior art reference or system. I understand that inherency
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`requires a showing that the missing descriptive matter in the claim is necessarily or
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`implicitly present in the allegedly anticipating reference, and that it would have been
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`so recognized by a POSITA. In addition, I understand that an enabling disclosure is
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`a disclosure that allows a POSITA to make the invention without undue
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`experimentation. Although anticipation typically involves the analysis of a single
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`prior art reference, I understand that additional references may be used to show that
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`the primary reference has enabling disclosure, to explain the meaning of a term used
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`in the primary reference, and/or to show that a characteristic is inherent in the
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`primary reference.
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`D.
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`27.
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`OBVIOUSNESS
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`I understand that the prior art may render a patent claim “obvious.” I
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`understand that two or more prior art references (e.g., prior art articles, patents, or
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`publications) that each disclose fewer than all elements of a patent claim may
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`HALLIBURTON EXHIBIT 1002, Page 19
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`

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`Declaration of Dr. Robert A. Durham
`IPR of USP 9,840,901
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`nevertheless be combined to render a patent claim obvious if the combination of the
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`prior art collectively discloses all elements of the claim and one of ordinary skill in
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`the art at the time would have been motivated to combine the prior art i