[00:00:35] Speaker ?: Yes. [00:00:36] Speaker 04: Yes. [00:00:40] Speaker 04: Next case is rapid completions versus Baker Hughes, 2019, 1240 and 1241. [00:00:49] Speaker 04: Mr. Koreshi. [00:01:07] Speaker 01: May it please the court. [00:01:09] Speaker 01: Your honors, as a preliminary matter, I just wanted to note that [00:01:13] Speaker 01: Claims 23 and 27 of the 505 pen and claim 25 of the 634 pen are no longer at issue in view of this court's decision of the rapid completions versus Weatherford case a few months ago. [00:01:26] Speaker 03: And so what that means is all of the claims relating to an open hole methodology, restricted to an open hole methodology, are out of the case now, right? [00:01:37] Speaker 03: Yes. [00:01:37] Speaker 03: The claims that relate to open hole that were at issue at the patent office. [00:01:41] Speaker 03: OK. [00:01:43] Speaker 03: Your secondary consideration evidence was directed to those very claims, the open-hole claims. [00:01:52] Speaker 03: That's correct, Your Honor. [00:01:53] Speaker 03: So therefore, I just want to make clear that we don't need to address the secondary consideration arguments anymore in this appeal. [00:02:02] Speaker 03: Yes. [00:02:03] Speaker 01: That they were directed to claims that have now fallen out of the case. [00:02:07] Speaker 01: That's correct, Your Honor. [00:02:08] Speaker 01: I will not be addressing secondary considerations with respect to those claims. [00:02:11] Speaker 04: Speaking of issues, Counsel, your brief starts out by saying there are 17 issues. [00:02:19] Speaker 04: Do you have to win on all 17 issues? [00:02:21] Speaker 01: No, Your Honor. [00:02:22] Speaker 01: I think we can win on. [00:02:24] Speaker 04: Then why did you raise 17 issues, dilute what issues might be more important, and put the court to the effort of reviewing issues that don't matter? [00:02:36] Speaker 01: Well, some of those issues were direct to the secondary considerations aspect of the case on the open held claims, which have fallen away. [00:02:43] Speaker 01: We didn't know at the time we submitted our opening briefs that the court would decide the way it did in the Weatherford case. [00:02:49] Speaker 01: And a number of those issues were related to the secondary considerations issues. [00:02:53] Speaker 01: As far as what it will take to win Your Honor's reversal of the PTAP decision in this case, I think it can be boiled down to three issues. [00:03:02] Speaker 01: One is whether Thompson anticipates the remaining claims of the 505 and 634 pens. [00:03:07] Speaker 01: The second issue is whether Thompson plus Brown renders obvious the remaining claims. [00:03:12] Speaker 01: And the third is whether the Lane Wells reference plus the Ellsworth reference renders obvious the remaining claims. [00:03:19] Speaker 01: Let me start. [00:03:20] Speaker 01: I'll try to hit all three of those. [00:03:22] Speaker 01: Let me start with the Thompson anticipation issue. [00:03:29] Speaker 01: As Your Honors are aware, the asserted claims or the challenge claims of these patents all require an alternating arrangement of packers and ports where each of the packers have in one pad multiple packing elements and in the 634 pad at least two packing elements. [00:03:45] Speaker 01: The Thompson reference, which was published in 1997, does not at all speak to packing elements on packers. [00:03:55] Speaker 01: It does not specifically disclose the arrangement [00:03:59] Speaker 01: of three Packers and two Ports that is specifically recited in the claims that are remaining in the two patents. [00:04:08] Speaker 01: What Baker Hughes points to is figure four of the Thompson reference as purportedly showing a Packer that has multiple patent elements. [00:04:21] Speaker 01: And they annotate. [00:04:21] Speaker 03: Well, figure three too, right? [00:04:23] Speaker 03: And figure three. [00:04:25] Speaker 03: Figure three makes it pretty clear, doesn't it? [00:04:28] Speaker 03: More clear than figure four. [00:04:30] Speaker 01: I would agree that figure three is clear than figure four, but our position is. [00:04:33] Speaker 03: When we look at figure three and we see those three vertical lines, why was it unreasonable for the board to conclude that [00:04:42] Speaker 03: The retrievable packer there, as illustrated in Figure 3, is made up of multiple packing elements. [00:04:48] Speaker 01: We don't dispute that this single packer shown in Figure 3 looks like it has multiple. [00:04:53] Speaker 01: The retrievable packer shown in the schematic in Figure 3 does have multiple packing elements, but the claims require three packers, each with multiple packing elements. [00:05:03] Speaker 01: And the Thompson reference is not at all concerned [00:05:06] Speaker 01: with the number of packing elements on packers because it's directed to a cased hold completion. [00:05:11] Speaker 01: It's not directed to an open hold completion where the number of packing elements can increase the likelihood that you'll have a good seal. [00:05:21] Speaker 03: The Thompson reference, and this is what the board ultimately relied on, talks about how you can have up to nine MSAF tools. [00:05:30] Speaker 03: run in the completion, and then you'll have retrievable packets positioned on each side of up to nine MSAF tools. [00:05:40] Speaker 01: Right. [00:05:40] Speaker 03: So that sounds like [00:05:42] Speaker 03: They're a lot more than just three retrievable factors. [00:05:45] Speaker 03: Packers are being contemplated in the Thompson reference. [00:05:49] Speaker 01: Agreed. [00:05:49] Speaker 01: But the claim requires that each of those packers have multiple packing elements on the individual packers. [00:05:56] Speaker 03: So why isn't it logical to read Thompson as saying, well, [00:06:02] Speaker 03: OK, we're going to have a lot of retrievable packers. [00:06:06] Speaker 03: And here's what an example of a retrievable packer looks like. [00:06:10] Speaker 03: And it's right there in Figure 3, which shows three elements. [00:06:14] Speaker 01: Our response to that is Figure 4 actually makes it ambiguous as to what Thompson is disclosing in Figure 3. [00:06:20] Speaker 01: Figure 4 on Appendix 1640 [00:06:23] Speaker 01: is described in Thompson as the packer selected for this project was a new hydraulic set retrievable packer that had its first usage on the Joanne project and specifically sites to Figure 4. [00:06:33] Speaker 01: When you look at Figure 4, before Baker uses experts annotations to it, it doesn't show, at least not to the naked eye, having multiple packing elements. [00:06:46] Speaker 01: Baker uses expert Dr. Dineshu, who's an expert on fracking. [00:06:49] Speaker 01: He admittedly is not an expert on packers. [00:06:51] Speaker 01: And that cited in our opening brief where he testified that he's not an expert on packers, drew some annotations pointing to what he believed were multiple packing elements on the retrievable packer on the right side of figure 4. [00:07:06] Speaker 01: What's interesting, though, is that the left side packer on figure 4, which is the permanent packer, if you look as closely as you would have to look at the right side, has the same indentations. [00:07:18] Speaker 01: So that's inconsistent with what's shown in figure 3. [00:07:21] Speaker 01: which has the permanent packer looking to have a single packing element. [00:07:26] Speaker 01: Moreover, the Thompson reference says you can change a permanent packer into a retrievable packer simply by adding screws, shear screws that can be sheared with enough pressure. [00:07:39] Speaker 01: It does not at all speak about whether there's changes in the number of packing elements or the number of seals or spacers between multiple packing elements. [00:07:49] Speaker 01: And so our view is that, [00:07:51] Speaker 01: Thompson is not concerned with packing elements. [00:07:54] Speaker 01: It's ambiguous, especially when you look at figure 4, which is the actual implementation of the packer used in this completion that was experimented. [00:08:02] Speaker 01: And it makes it ambiguous. [00:08:03] Speaker 01: And this court's case law is clear that for 102 anticipatory pieces, ambiguous references cannot be relied on for an anticipating disclosure. [00:08:14] Speaker 01: Moreover, this court's law is that with respect to relying on extrinsic evidence for a 102 reference, [00:08:21] Speaker 01: There's a certain number of particular conditions where you can look at extrinsic evidence. [00:08:25] Speaker 01: One is whether you need extrinsic evidence to determine whether or not the prior reference is enabling. [00:08:30] Speaker 01: That's not what Baker Hughes relied on Dr. Dineshu for. [00:08:33] Speaker 01: The other one was to understand the meaning of a term or phrase in the prior reference. [00:08:40] Speaker 01: That's not what Dr. Dineshu was used for. [00:08:43] Speaker 01: And the third is whether there was some inherent characteristic. [00:08:46] Speaker 01: And Baker Hughes has not argued [00:08:48] Speaker 01: that solid body packers or these packers in the Thompson reference inherently have multiple packing elements. [00:08:55] Speaker 01: They went as far as to say, and the board adopted it, that it was commonly known that solid body packers or packers at this time could have multiple packing elements. [00:09:06] Speaker 01: But if that's to be given credit, that should be done under an obviousness theory, not an anticipation theory. [00:09:20] Speaker 01: The second point is whether Thompson is combinable with the Brown reference. [00:09:27] Speaker 01: The Thompson reference specifically says twice, once at Appendix 1642 on the top right, where it says the Packers are set with no mandrel movement. [00:09:41] Speaker 01: And also later on, it says that an important feature [00:09:48] Speaker 01: of the Thompson completion is that there is no mandrel movement. [00:09:51] Speaker 04: You think Brown is more important than Lane Wills? [00:10:02] Speaker 01: So my understanding of why Baker Hughes relied on the Thompson-Brown reference was as a backstop in case the fact finder, the borrower, the Federal Circuit would find that Thompson doesn't disclose multiple packers with multiple packing elements. [00:10:17] Speaker 01: So they looked at Brown, which was a reference from about 20 years earlier, 1975. [00:10:23] Speaker 01: And there is a packer in Brown, admittedly, that has multiple packing elements. [00:10:28] Speaker 01: But Brown specifically talks about how the mandrel has to move. [00:10:32] Speaker 01: The mandrel is the lever or the shaft within the packer around which components are connected and are actuated against to perform a particular function, including setting the packer. [00:10:44] Speaker 01: specifically talks about, as is cited in our brief in column 6, in a section entitled Setting the Packer, it talks about how you use fluid pressure to move the packing elements and the slips in order to seal the packer. [00:11:04] Speaker 01: So it specifically, Brown specifically, is dependent on mandrel movement to effectuate the seal of the packers. [00:11:13] Speaker 01: The reason why that came to be known as a disadvantage is because if you have to depend on actuating a particular packer to seal, and you have multiple packers, that makes it difficult to set the packers at the same time, because you're dependent on the mechanical workings of each individual packer. [00:11:30] Speaker 01: And so that's why the Thompson reference was specific to say that, look, we don't have mandrel movement, and that's what allows us to set these packers at the same time, because you shoot the fluid down at the same pressure down all the packers, and they set [00:11:43] Speaker 01: at the same time. [00:11:45] Speaker 01: One way to sort of clearly see that Brown does have mandrel movement is if you look at figures one and two of Brown, figure one is the packer when it's run into the well before it's set. [00:11:57] Speaker 01: And figure two is the packer once it's set. [00:11:59] Speaker 01: And you can see the mandrel is claim element, reference element 11. [00:12:05] Speaker 01: And the packers and the slips are 13, 14, and 15. [00:12:08] Speaker 01: And you can see that the packing elements 13 and 14 and the slips [00:12:12] Speaker 01: are moved up relative to the mandrel in between figure two and one. [00:12:19] Speaker 01: So our position there is that one skilled in the art presented with the packer of Brown would find that it sort of teaches away from the purpose espoused in Thompson, which was to have no mandrel movement. [00:12:33] Speaker 01: The other issue with Brown as to why it teaches away from being used in Thompson, and this is discussed in our opening brief as well, is that [00:12:41] Speaker 01: Brown speaks to one packer. [00:12:43] Speaker 01: And the way you activate the packer is you flow a ball down to the bottom. [00:12:48] Speaker 01: And this is shown in Figure 2 of Brown, which creates a plug. [00:12:53] Speaker 01: And then you pump fluid in. [00:12:55] Speaker 01: And it creates pressure. [00:12:57] Speaker 01: And it actuates the packer. [00:12:59] Speaker 01: That type of system will not work if you have to have multiple packers. [00:13:05] Speaker 01: Because as soon as you put a ball at the end of one of the packers, [00:13:10] Speaker 01: You're going to be actuating the Packers at different times you're going to need the only way to make it work is having different sized balls so have a smaller ball go down a Slightly bigger ball slightly bigger ball to go down, and then you'd have to hydraulically Actuate them flow those balls out and then put in another set of different sized balls to actuate the ports you want to say some time [00:13:35] Speaker 04: It's about half the order. [00:13:37] Speaker 04: May it continue if you wish. [00:13:39] Speaker 01: I'll save the remainder for a bottle. [00:13:41] Speaker 01: Thank you. [00:13:42] Speaker 04: Mr. Garrett. [00:13:55] Speaker 04: We're all awash in paper. [00:14:01] Speaker 02: Good morning. [00:14:03] Speaker 02: May it please the court [00:14:04] Speaker 02: Mark Garrett for Appellees. [00:14:06] Speaker 02: Jonathan Franklin at council table. [00:14:08] Speaker 02: Out there in the gallery is Darren Dufourn, who's in-house counsel for Baker Hughes. [00:14:13] Speaker 02: To a point that Judge Moore made earlier, he indicated that he believed you could address Lane Wells and Ellsworth as one of the three issues, but he didn't discuss it. [00:14:26] Speaker 02: So I'm not going to discuss it unless the court has questions about it. [00:14:30] Speaker 03: Just to confirm, you need it for a complete affirmance, right? [00:14:35] Speaker 02: Exactly. [00:14:35] Speaker 02: So in our view, we go through Thompson anticipates. [00:14:40] Speaker 02: That gets everything but 11 of the 505 and 6 of the 634. [00:14:45] Speaker 02: We think the logical way to get through those is through Lane Wells for the reasons that we briefed. [00:14:50] Speaker 02: So I want to focus on Thompson, the issue that he raised first, and the notion that [00:14:56] Speaker 02: It's not clear that the multiple packers that are disclosed in Thompson have multiple packing elements. [00:15:06] Speaker 02: If you look at its appendix 1648 is where you'll see a picture of figure three. [00:15:11] Speaker 02: When you go down to the portion of figure three that shows that retrievable packer, underneath it, it says one REQ period per zone in parentheses, one required per zone. [00:15:22] Speaker 02: The first page of the Thompson reference, which is 1639, says, I believe, as you pointed out, Judge Chen, there are multiple zones. [00:15:31] Speaker 02: There are effectively 10 zones, which means there are 10 packers. [00:15:35] Speaker 02: That is the textual link, one of the textual links within the Thompson reference, showing that all of the retrievable packers that are discussed there have multiple packing elements. [00:15:45] Speaker 02: Because he didn't contest that Figure 3 discloses, in fact, multiple packing elements. [00:15:50] Speaker 02: So that's the link. [00:15:52] Speaker 02: The other thing I would say about that is on Appendix 30, the board. [00:15:56] Speaker 00: So even if there is some confusion over Figure 4, there's no doubt that Figure 3 discloses three packing elements. [00:16:04] Speaker 00: And there's also no doubt because of that link that there are, at least in Thompson, 10 packers which have these three packing elements. [00:16:14] Speaker 02: That's correct, Your Honor. [00:16:15] Speaker 00: So you don't even have to worry about Figure 4 and whether it might disclose possibly [00:16:21] Speaker 02: Packer without three packing elements because figure three with the reference is a single embodiment that takes care of everything That's right, and it's cited three different times on appendix 30, so it's substantial evidence I don't know that it's even fair for them to raise the issue about whether the multiple packers have multiple packing elements the point I was going to quickly make is on appendix 30 is [00:16:45] Speaker 02: The board says in the last sentence, patent owner does not dispute that Thompson discloses using multiple of its retrievable packers. [00:16:58] Speaker 02: So I don't know that that is an issue that they can raise at this point. [00:17:02] Speaker 02: And they highlighted that in their reply. [00:17:05] Speaker 02: His arguments about Thompson Brown, you don't get to those if you agree with us on Thompson. [00:17:09] Speaker 02: So I'm happy to answer questions about them. [00:17:12] Speaker 02: But they were thoroughly considered by the board [00:17:15] Speaker 02: The arguments are based on attorney argument. [00:17:18] Speaker 02: We had expert testimony with the petition, and then again, at the reply stage, we're budding those. [00:17:24] Speaker 02: And the board took note of that, and that formed substantial evidence for its findings. [00:17:32] Speaker 04: Council, that is indeed rapid completion. [00:17:38] Speaker 02: Thank you, Your Honor. [00:17:41] Speaker 02: Judge Chen, I'm making sure you're OK. [00:17:44] Speaker 03: I am fine. [00:17:45] Speaker 03: Keep going. [00:17:47] Speaker 03: Keep going. [00:17:52] Speaker 04: Did you want to ask a more question? [00:17:53] Speaker 04: No, I did not. [00:17:55] Speaker 04: Mr. Koroshy has two and a half minutes left. [00:17:57] Speaker 01: I'll address the point that Mr. Garrett raised. [00:18:00] Speaker 01: The linking language that Judge Moore, you pointed to regarding where Seth Thompson says up to nine MSAF tools can be used with retrieval of packers on either side. [00:18:13] Speaker 01: Reading that, [00:18:14] Speaker 01: It's reasonable that someone would look to Figure 4, which talks about the actual implementation of the retrievable packer that's used in Thompson. [00:18:22] Speaker 01: And I understand that Baker Hughes sort of wants to distance himself from Figure 4 and the annotations that were made to that figure. [00:18:29] Speaker 01: But the board, in its final rendition, repeatedly relied on Figure 4 and the annotations. [00:18:36] Speaker 01: The annotations to Figure 4, the elements that were cited by Dr. Dineshi, none of those elements appear in Thompson, yet the board seemed to give [00:18:44] Speaker 01: weight to Dr. Dineshi's annotations to Figure 4 and found him credible, even though he admitted that he's not an expert on packers. [00:18:53] Speaker 01: So what we would say is that you can't look at Figure 3 without looking at Figure 4. [00:18:58] Speaker 01: Figure 3 is a schematic. [00:18:59] Speaker 01: Figure 4 is the actual implementation. [00:19:02] Speaker 01: And that Figure 4 invites ambiguity as to whether Thompson does disclose multiple retrievable packers, each with multiple packing elements. [00:19:13] Speaker 01: No further questions. [00:19:14] Speaker 01: Thank you. [00:19:15] Speaker 04: Thank you, counsel. [00:19:16] Speaker 04: The case is submitted.