[00:00:00] Speaker 00:
First case is U.S.

[00:00:01] Speaker 00:
Wells Services, and let me correct myself in the previous case.

[00:00:05] Speaker 00:
It's no longer against Halliburton, it's against Stewart, acting director of the PTO.

[00:00:14] Speaker 00:
And this is 22-23-1692, Mr. Valdez.

[00:00:30] Speaker 03:
Good morning again, Your Honors, and may it please the Court.

[00:00:34] Speaker 03:
The patent at issuing this appeal concerns a method of pump down operations, pumping a tool down to a well board.

[00:00:46] Speaker 03:
And the novel aspect of the claim is the use of a boost pump to pump down the tool into the well board.

[00:00:57] Speaker 03:
It's a three prior combination in terms of the obviousness.

[00:01:01] Speaker 03:
Conrad, Neil, and Coley.

[00:01:03] Speaker 03:
The court's familiar with Coley already.

[00:01:05] Speaker 01:
The boost pump, that's all it does.

[00:01:07] Speaker 01:
That's the sole purpose is to help down the road.

[00:01:12] Speaker 03:
As claimed in this invention, yes, Your Honor.

[00:01:16] Speaker 03:
But there are, in the industry, there are different types of boost pumps.

[00:01:20] Speaker 03:
And our primary argument addresses and tries to attack the board's motivation to combine these references.

[00:01:30] Speaker 03:
And the board and Halliburton presented basically two arguments, reducing excessive wear and tear and avoiding cavitation.

[00:01:38] Speaker 02:
And so do you agree that the secondary considerations issue is no longer, in this case, in the light of our February 13th decision?

[00:01:48] Speaker 03:
The February 13th decision, Your Honor?

[00:01:51] Speaker 02:
Yeah, in number 231796, which rejected your secondary considerations argument for a related patent.

[00:02:02] Speaker 03:
Well, I'd say you have to take case by case.

[00:02:05] Speaker 03:
But we're not challenging the reasoning of the court in that decision, or the decision of the court.

[00:02:10] Speaker 02:
So you're not arguing secondary considerations here anymore.

[00:02:13] Speaker 03:
We're maintaining our arguments here.

[00:02:15] Speaker 01:
But it's the same argument you made in the other case.

[00:02:21] Speaker 03:
Same argument, different invention, different claims, and slightly different evidence.

[00:02:27] Speaker 03:
So we're going to maintain that argument.

[00:02:29] Speaker 03:
But if I could focus on the motivation to combine the three references.

[00:02:33] Speaker 03:
And that's the strongest argument we have with respect to the obviousness.

[00:02:38] Speaker 03:
And here, you have Conrad, Neil, and Coley.

[00:02:43] Speaker 03:
Conrad teaches a pump-down operation.

[00:02:46] Speaker 03:
No, Conrad teaches the separate pump-down manifold.

[00:02:52] Speaker 03:
It's a manifold.

[00:02:53] Speaker 03:
The kneel teaches a boost pump, but nowhere in the prior art is there any suggestion to use a boost pump for Conrad's manifold and pump down operation.

[00:03:08] Speaker 03:
The two reasons that the board gave and the two reasons that Halliburton relied on was cavitation and wear and tear.

[00:03:16] Speaker 03:
Wear and tear was just a general, generic type motivation.

[00:03:19] Speaker 03:
We don't think it's sufficient here.

[00:03:21] Speaker 03:
With the cavitation, the cavitation is not a sufficient reason here because, totally, when you're using the electric pumps, that essentially removes and eliminates any concern about cavitation.

[00:03:35] Speaker 03:
So unless there are any questions on that position, I would like to turn to two other issues that are raised here with respect to Claim 8.

[00:03:43] Speaker 03:
So Claim 8, we ask that the court look at the claim construction.

[00:03:48] Speaker 03:
The limitation requires approximate

[00:03:53] Speaker 03:
And there, the key point that we raised in our briefs is that the board construed proximate to be equivalent to anywhere on the well site.

[00:04:06] Speaker 03:
And that, in our view, is contrary to a plain definition.

[00:04:10] Speaker 03:
Proximate, before the board, we

[00:04:14] Speaker 03:
advancing a definition where it meant within the microgrid, and that's supported by Figure 3.

[00:04:21] Speaker 03:
And I would point the court to the board's analysis on this point.

[00:04:27] Speaker 03:
And this is at Appendix 31.

[00:04:29] Speaker 03:
And the board wrote that although Coley describes its natural gas-powered turbine generators as located in Region C, which is located a remote distance from Region B,

[00:04:45] Speaker 03:
where the trailers and fracturing modules are located, both region C and region B are on the same site and thus are proximate one another.

[00:04:55] Speaker 03:
When I read that, the board essentially is equating remote to proximate.

[00:05:02] Speaker 03:
And regardless of whatever definition you provide to proximate, it cannot be that proximate is synonymous with remote.

[00:05:13] Speaker 03:
And our position is that, at a minimum, when you look at proximate, it has to be within the microgrid.

[00:05:21] Speaker 03:
Let's have any questions on that.

[00:05:23] Speaker 03:
If I could turn to one last argument, Your Honors.

[00:05:27] Speaker 03:
And this concerns the amended claims.

[00:05:30] Speaker 03:
And as the Court knows, we proposed amended claims during the IPR.

[00:05:36] Speaker 03:
And one claim term that I would like to focus on is the power not being diverted.

[00:05:43] Speaker 03:
And what Halliburton and the board

[00:05:46] Speaker 03:
concluded or argued was that the power not being diverted limitation is equivalent to sufficient.

[00:05:55] Speaker 03:
And again, we don't see how that is a reasonable construction of that claim limitation.

[00:06:00] Speaker 03:
That's the only way the obviousness decision can stand is if you look at diverted being equivalent to sufficient.

[00:06:08] Speaker 03:
But that's not consistent with the patent specification in terms of the figures where it shows

[00:06:13] Speaker 03:
specifically that power is being specified to different pumps, meaning the fracturing pump or the boost pump.

[00:06:22] Speaker 03:
And so it's a dedicated source of power.

[00:06:25] Speaker 03:
It's not simply a source of power, one source of power that is sufficient to power as many generators or as many pumps that Halliburton might want to argue.

[00:06:38] Speaker 03:
In terms of amended claims 15 through 23, we believe.

[00:06:42] Speaker 01:
Did you raise the devoid argument below?

[00:06:44] Speaker 03:
Yes, Your Honor.

[00:06:45] Speaker 03:
We did.

[00:06:45] Speaker 01:
What was that at?

[00:06:47] Speaker 03:
I can look at that on rebuttal, Your Honor.

[00:06:51] Speaker 03:
I don't recall offhand right now.

[00:06:52] Speaker 00:
All right.

[00:06:53] Speaker 03:
So again, unless there are any questions, we'll reserve the rest of my time.

[00:06:58] Speaker 00:
So you said you're maintaining the secondary considerations argument, but you're not making an argument.

[00:07:05] Speaker 03:
We'll rest on our briefs, Your Honor.

[00:07:07] Speaker ?:
All right.

[00:07:08] Speaker 03:
Thank you.

[00:07:20] Speaker 04:
May it please the court, Fahad Patel with the USPTO.

[00:07:23] Speaker 04:
I'd like to respond to my friend's arguments in series.

[00:07:30] Speaker 04:
The first argument was about the obviousness, motivation to combine.

[00:07:35] Speaker 04:
And I think the point that my friend ended on was about the Colby reference.

[00:07:40] Speaker 04:
Now that's the third reference in the combination, and he's arguing that Coley already has cavitation, which is a problem that was kind of known in the art, and thus the person of score would not have combined the first two references

[00:07:54] Speaker 04:
Conrad and Neil together.

[00:07:56] Speaker 04:
There's two problems with this argument.

[00:07:58] Speaker 04:
The first is that they never made the argument to the board.

[00:08:01] Speaker 04:
This argument about Coley not having cavitation, you won't find it in the papers.

[00:08:06] Speaker 04:
It was not before the board.

[00:08:07] Speaker 04:
There are no findings by the board on that point, but there's very little for us to look at here in detail.

[00:08:14] Speaker 04:
The second point on that, and we don't have to go into the nitty-gritty, but this was also in the briefing to this court, is that COLE addresses a different source of cavitation than the NEO reference.

[00:08:30] Speaker 04:
So the NEO reference has a boost pump, and the reason to combine NEO with the first reference, CONRAD, was to solve the issue of cavitation.

[00:08:40] Speaker 04:
So that's what the board found.

[00:08:42] Speaker 04:
Now, cavitation shows up in coli as well, but within a different context.

[00:08:47] Speaker 04:
There's a different reason for why cavitation occurs in coli.

[00:08:51] Speaker 04:
In any event, it's sort of besides the point in some ways because the board didn't talk about it.

[00:08:56] Speaker 04:
It wasn't before the board.

[00:08:58] Speaker 04:
So it's not a reason to reverse the board here.

[00:09:03] Speaker 04:
The second issue was about claim construction and about the claim terms in dependent claim eight is called proximate.

[00:09:15] Speaker 04:
And the board did the best it could to construe this term.

[00:09:19] Speaker 04:
Proximate is a term of degree, and it's not exactly clear from the specification what proximate means.

[00:09:26] Speaker 04:
It's not defined in the specification.

[00:09:27] Speaker 04:
It's not used in context with what the claim describes.

[00:09:33] Speaker 04:
And so there's really very little guidance about what proximate could mean.

[00:09:37] Speaker 04:
The board construed proximate.

[00:09:40] Speaker 04:
to mean within the same well site.

[00:09:44] Speaker 04:
And so it might be actually worth here just setting this up a little better is looking at the language of the claims to understand what proximate is referring to.

[00:09:58] Speaker 04:
So it's a dependent claim.

[00:10:01] Speaker 04:
Independent claim one requires a pump and an electric motor.

[00:10:07] Speaker 04:
Those are two components in claim one, the pump and the motor.

[00:10:11] Speaker 04:
Deep Ending Claim 8 adds... It adds an electric blender.

[00:10:23] Speaker 05:
I don't think that's... I think it's better to look at the pattern.

[00:10:27] Speaker 05:
I don't think that's right.

[00:10:28] Speaker 05:
That's written there.

[00:10:37] Speaker 00:
That's going to just add an electric blender.

[00:10:40] Speaker 04:
I don't think Claim 8 is printed on the blue brief.

[00:10:45] Speaker 04:
That's right.

[00:10:46] Speaker 04:
I think it's better to look at Appendix 99.

[00:10:47] Speaker 04:
I don't think it's the correct claim there.

[00:10:51] Speaker 04:
Appendix 99 is the issued patent with the Claim 8 written.

[00:10:57] Speaker 04:
Oh, and then the props in the language.

[00:10:58] Speaker 04:
So Claim 8

[00:11:03] Speaker 04:
precise when electricity that powers the motor is generated with a generator that is proximate the electric motor.

[00:11:11] Speaker 04:
So there's a generator that's added by claim A, which is proximate to the electric motor that was previously recited in claim one.

[00:11:19] Speaker 04:
That's how

[00:11:20] Speaker 04:
Proximant is used.

[00:11:22] Speaker 04:
And the term is not used in the spec to describe these two components being any distance from one another.

[00:11:29] Speaker 04:
So Proximant is not used in the spec to talk about the motor as compared to the generator.

[00:11:34] Speaker 04:
And so that's why the board can shoot Proximant to just being on the same well site, because that's the best it could discern from what the spec says.

[00:11:45] Speaker 04:
And there's nothing in the spec that talks about the generator being on the same microgrid as the motor that's just simply absent from the way the term is used in the spec.

[00:12:00] Speaker 04:
That's the second argument for claim construction.

[00:12:05] Speaker 04:
I won't touch on secondary considerations.

[00:12:08] Speaker 00:
Why not?

[00:12:10] Speaker 04:
I can talk about it.

[00:12:11] Speaker 04:
It wasn't raised in argument, but I'm happy to discuss it.

[00:12:14] Speaker 00:
It's in the briefs?

[00:12:16] Speaker 04:
It's in the briefs, fair enough.

[00:12:17] Speaker 00:
And what's the relevance of the earlier case to the issue here?

[00:12:21] Speaker 04:
I think, in some ways, it's at least informative because, as the court mentioned in the prior case, the evidence is essentially identical to what's being submitted here.

[00:12:34] Speaker 04:
Here you have the additional problem of there being a lack of nexus to these claims in particular, because there's really nothing that links what the claims require, the boost pump, the pump down operation, to their expert admitted.

[00:12:50] Speaker 02:
The product didn't reflect the claim limit.

[00:12:53] Speaker 04:
Yes, absolutely.

[00:12:54] Speaker 04:
It's an expert's deposition.

[00:12:55] Speaker 04:
He admitted that it didn't practice the commercial embodiment.

[00:13:00] Speaker 04:
Supposedly, commercial embodiment did not practice the claim limitation.

[00:13:05] Speaker 04:
And so this case can be disposed of for secondary considerations, at least, solely on lack of nexus, without necessarily needing to get into the weeds of the individual secondary considerations evidence.

[00:13:18] Speaker 00:
And there was no, nothing presented on relevant market or sales figures.

[00:13:25] Speaker 04:
Correct.

[00:13:26] Speaker 00:
License wasn't presented.

[00:13:28] Speaker 04:
Absolutely.

[00:13:29] Speaker 04:
For commercial success, there was no sales information, no sales numbers given, no market information was given for secondary considerations.

[00:13:38] Speaker 04:
On licensing, the licenses weren't provided, so the board couldn't credit that evidence to show that the patent was actually part of a license, because we didn't know what the license was and what it said.

[00:13:50] Speaker 04:
And in fact, the evidence that's in the case doesn't even say it was a patent license.

[00:13:54] Speaker 04:
It just says it was an IP license.

[00:13:57] Speaker 04:
If you look at the Yahoo press release in the case, which I can.

[00:14:07] Speaker 04:
which is Appendix 1577, it just says a $22.5 million license notes purchase convertible to three licenses to build and operate three fleets using U.S.

[00:14:22] Speaker 04:
Wells clean fleet technology.

[00:14:24] Speaker 04:
So it's a license to technology.

[00:14:25] Speaker 04:
It might be a patent license.

[00:14:28] Speaker 04:
It might not be a patent license.

[00:14:29] Speaker 04:
It might include the authority patent.

[00:14:31] Speaker 04:
It might not.

[00:14:32] Speaker 04:
We don't have a license, so we don't know.

[00:14:35] Speaker 04:
And on the copying, again, there's nothing to substantiate the assertions made about certain competitors taking photographs of the commercial product.

[00:14:47] Speaker 04:
None of that is cited, too.

[00:14:49] Speaker 04:
There's no evidence around it.

[00:14:50] Speaker 04:
It's just bare statements from the prosecution history of another patent.

[00:14:55] Speaker 02:
It's hard to copy the patent if the commercial product doesn't embody it.

[00:14:58] Speaker 04:
That's also a problem, Your Honor, yes.

[00:15:00] Speaker 04:
Yes, it goes back to the issue of nexus.

[00:15:03] Speaker 04:
There's no linking between the claims and the product.

[00:15:07] Speaker 04:
We don't know if the product does what the claims say.

[00:15:16] Speaker 04:
The last issue was on the amended claims.

[00:15:23] Speaker 04:
And you can look at the blue brief for that one.

[00:15:30] Speaker 04:
The amended claims recite that power is not diverted from an associated pump for fracturing.

[00:15:43] Speaker 04:
So there's a pump down pump for performing pump down operations.

[00:15:51] Speaker 04:
And then in claim eight, there's this idea of a fracking pump, another pump for fracking.

[00:15:56] Speaker 04:
So there's two pumps contemplated by claim eight.

[00:16:00] Speaker 04:
And what the claim is saying is that you can't divert power from the fracking pump to the pump down pump.

[00:16:07] Speaker 04:
That's the negative limitation of not diverted.

[00:16:11] Speaker 04:
But this is all the claim requires.

[00:16:14] Speaker 04:
So it doesn't require a separate power supply.

[00:16:16] Speaker 04:
It doesn't require anything like that.

[00:16:19] Speaker 04:
all it requires is that power not be diverted from one pump to the other.

[00:16:22] Speaker 04:
And this was met by the existing prior art that was applied to the original claims, because that prior art simply had a power supply that was sized enough to supply power to both pumps.

[00:16:35] Speaker 04:
And that met the limitation of not diverting.

[00:16:37] Speaker 04:
And that's all the limitation required.

[00:16:39] Speaker 04:
And there was, I think, a forfeiture argument as well, to the extent that

[00:16:43] Speaker 04:
Appellant is arguing that the claims require two separate power supplies, one for the pump down and one for the fracking.

[00:16:50] Speaker 04:
That wasn't before the board, so that would also be forfeited.

[00:16:59] Speaker 04:
Any other questions?

[00:17:01] Speaker 04:
We request that the court affirm the board.

[00:17:03] Speaker 04:
Thank you.

[00:17:03] Speaker 00:
Thank you very much.

[00:17:04] Speaker 00:
Thank you, Mr. Patel.

[00:17:06] Speaker 00:
Mr. Dowd has plenty of time if he needs it.

[00:17:11] Speaker 03:
We'll only use a short amount of time, Your Honor, with respect to court's time.

[00:17:17] Speaker 02:
So in terms of the not-devoted... You know, it's useful to get the plaint right on the inside cover.

[00:17:24] Speaker 02:
The plaintiff is not right.

[00:17:26] Speaker 03:
My sincere apologies, Judge Dyke.

[00:17:28] Speaker 03:
That's an obvious oversight, which all I can say is we'll do better next time.

[00:17:36] Speaker 03:
So with respect to the not diverted, I think there's support in figure three for that.

[00:17:44] Speaker 03:
And again, there's a difference between diverting or not diverting, ensuring that there's a specific amount of power that's going to the pump down pump or the boost pump versus the fracking pump.

[00:17:58] Speaker 03:
versus simply having an overall amount of power available.

[00:18:03] Speaker 03:
And then for the proximate limitation, Your Honor, we again direct the Court's attention to Figure 1A, where 54

[00:18:15] Speaker 03:
is the micrograde, and that's our support for the proximate limitation.

[00:18:20] Speaker 03:
And we don't believe that COLE, which only discloses a remote configuration, can in any way be read to be equivalent to a proximate configuration.

[00:18:32] Speaker 03:
So unless there are any further questions.

[00:18:35] Speaker 02:
How many more of these well services cases are there?

[00:18:39] Speaker 02:
Coming up to us?

[00:18:41] Speaker 03:
I believe one more, Your Honor.

[00:18:42] Speaker 03:
One more?

[00:18:43] Speaker 03:
Yes.

[00:18:43] Speaker 03:
Is that scheduled already?

[00:18:45] Speaker 03:
It has not been scheduled yet.

[00:18:46] Speaker 03:
I believe it will be scheduled in April, maybe June.

[00:18:53] Speaker 00:
OK.

[00:18:53] Speaker 00:
Let's forward to it.

[00:18:55] Speaker 03:
Thank you, Your Honor.

[00:18:56] Speaker 00:
Thank you to both counsels.

[00:18:57] Speaker 00:
The case is submitted.