[00:00:31] Speaker 01: Our final case this morning is number 14-1512 in gray down-hole products limited, Mr. Conrad. [00:00:39] Speaker 00: Thank you, Your Honor. [00:00:40] Speaker 00: Good morning and may it please the Court. [00:00:43] Speaker 00: We believe that the Board's obviousness finding in this case was the product of hindsight bias. [00:00:48] Speaker 00: There are three claim elements in the Patent of Invention that are not in the only prior art casing centralizer cited by the Board in this case. [00:00:56] Speaker 00: First, all of the claim elements require the use of a plastic material. [00:01:00] Speaker 00: Second, some of the claims require the use of a divided centralizer. [00:01:04] Speaker 00: And third, some of the other dependent claims require the addition of a filler material to use with the plastic material. [00:01:10] Speaker 00: Now the board supplied each of those missing claim elements from non-analogous references. [00:01:16] Speaker 00: And in each case did so by reasoning backward from the patented solution in order to find that those references were in fact analogous. [00:01:24] Speaker 00: The three non-analogous references that the board relied on are all production process components that go inside of the casing. [00:01:31] Speaker 02: These are all components that work in a down-hole environment, right? [00:01:35] Speaker 00: That is correct, Your Honor. [00:01:36] Speaker 02: So if these aren't analogous art, what is your conception of what would be regarded as analogous art? [00:01:42] Speaker 02: Because they're all, all this equipment's working in the exact same silo. [00:01:48] Speaker 02: One of skill and the art in that silo wouldn't have to look very far to find [00:01:53] Speaker 02: You know, Carson, Carlson, and all the rest. [00:01:56] Speaker 00: Well, they are used in the same physical location, in a sense, and that they're all a down hole in a well bore. [00:02:04] Speaker 00: But, Your Honor, I would disagree with that, because they're used at very different stages of the process of down hole drilling. [00:02:10] Speaker 00: So the casing centralizer, the 275 patent, for example, is a well construction component, and it's used during the process of actually creating the well. [00:02:19] Speaker 00: By contrast, the paraffin scraper in Carson, for example, [00:02:22] Speaker 00: It is used during the process of extracting oil from a protected production zone inside of a completed casing already. [00:02:32] Speaker 00: Those two environments are very different and the problems solved by those components are also very different. [00:02:38] Speaker 02: What did the 275 patent mean when it talked about how the centralizer could be used inside the casing as well? [00:02:48] Speaker 00: The same considerations are at play, Your Honor, in that sense as well, because when the casing centralizer is used in an interior casing to space it apart from an outer casing, it's still being cemented in place and it's still doing all of the things that a casing centralizer has to do, which involves providing structural support to prevent a collapse of the well bore, providing isolation support to prevent contaminants from the well bore from getting into the production zone, and centering a very heavy casing. [00:03:15] Speaker 00: None of those purposes are at issue in the Carson patent with respect to the paraffin scraper that it uses. [00:03:20] Speaker 00: The other thing that I would point out about using an interior casing one inside another is that part of the casing is inside another casing, and then the interior casing extends further down the well bore into a new zone. [00:03:33] Speaker 00: So it touches the exterior as well. [00:03:35] Speaker 00: And what you don't want to happen is the contaminants from the well bore to come up inside between the two casings and threaten to get into the production zone. [00:03:44] Speaker 00: So in that sense, the casing centralizer in the 275 patent is doing the exact same thing in that scenario that it does when it's outside the casing. [00:03:52] Speaker 00: Now we believe that the only way that the board was actually able to conclude that the Carson reference was an analogous reference was by reasoning backward from the patent invention with hindsight reasoning. [00:04:03] Speaker 00: I would point the court to page JA8, for example, in the board's decision. [00:04:09] Speaker 00: And at the top of page JA8, [00:04:14] Speaker 00: What the board is doing here is applying the second part of the analogous art test, which is to determine whether Carson is reasonably pertinent to a problem being addressed by the 275 patent. [00:04:31] Speaker 00: And the problem at the top of this page that the board identifies is the selection of a suitable material. [00:04:36] Speaker 00: But the only thing that the board points to for that proposition, the only site that the board gives, [00:04:41] Speaker 00: is to column four of the patent, which is in the detailed description of disclosed embodiments. [00:04:47] Speaker 00: So in other words, what the board has done is pointed to the patented solution and called that the problem being addressed by the 275 patent. [00:04:55] Speaker 00: I can't think of a more clear example of hindsight reasoning than that. [00:05:00] Speaker 00: And the board, in fact, did that on three separate occasions. [00:05:02] Speaker 02: Carson, though, talks about how its scraper also acts as a centralizer. [00:05:06] Speaker 02: And the board cited that very line from Carson's spec at JA8, right? [00:05:12] Speaker 00: Your honor, the board did point to the fact that Carson says that it serves as a centralizer. [00:05:16] Speaker 00: But the thing that Carson does in terms of centralizing is to centralize a sucker rod within the protected production zone. [00:05:23] Speaker 00: That is a very different problem than centering a casing centralizer [00:05:28] Speaker 00: Excuse me. [00:05:29] Speaker 00: That is a very different problem from centering a casing inside of a whale bore. [00:05:32] Speaker 02: But the aim of any centralizer is to be able to hold whatever tube it's surrounding away from some exterior, some other tube or the whale bore itself. [00:05:49] Speaker 00: I don't think that the problem can be understood at such a generic level. [00:05:53] Speaker 00: So in cases like Inrei Otiker, for example, or Wong Laboratories, the court made clear that [00:05:57] Speaker 00: say not all hooking problems in Otika were the same or not all computer memories address the same problems in long laboratories. [00:06:04] Speaker 00: That's exactly what we have here. [00:06:05] Speaker 00: The centralization problems that are being addressed are very, very different because the casing centralizer in the 275 patent has to centralize a very heavy casing inside of a very hostile environment where the well bore is often rocky and jagged and uneven while also providing that structural support and isolation support [00:06:26] Speaker 00: Carson doesn't have to worry about any of those considerations. [00:06:29] Speaker 00: And the centralizing function that Carson performs is that it's injection molded onto the sucker rod inside of the production tube. [00:06:38] Speaker 00: And so from there then it extends all the way out to be flush with the production tube so that it can scrape paraffin deposits off the inside of the tube. [00:06:46] Speaker 00: What that means is that Carson centralizes inherently because it extends all the way from the inside all the way to the outside. [00:06:53] Speaker 00: and that's what it does inherently. [00:06:54] Speaker 00: But it doesn't do any of the other things in centralizing something as relatively small as a sucker rod as a very different proposition than centralizing a very heavy metal casing inside of a production, or excuse me, inside of a very hostile environment of a well bore. [00:07:12] Speaker 00: Now, again, what the bore did on three separate occasions was to find, to reason backwards from the patented solution in order to find these references to be analogous. [00:07:21] Speaker 00: So I would point the court also to page 2. [00:07:23] Speaker 01: Even if there weren't any Carson care, why wouldn't the use of plastic be obvious to trough in this environment because of its properties of no sparking and so on and so forth? [00:07:38] Speaker 00: I would make a couple of points, Your Honor. [00:07:40] Speaker 00: First, we don't have any findings from the board that are separate and apart from Carson. [00:07:45] Speaker 00: So on the record before this court, we have to deal with the reasoning that the board gave under ordinary administrative law principles. [00:07:51] Speaker 00: And the reason that the board gave was related directly to the Carson reference. [00:07:55] Speaker 00: That being said, we don't think that this would be obvious to try at all. [00:07:59] Speaker 00: There are no findings that there are any kind of finite number of solutions that might be involved here. [00:08:04] Speaker 00: And the hostile environment that we're talking about is not one that naturally calls out for a material like plastic. [00:08:11] Speaker 00: Now, the board has also pointed to the fact that plastic is common and cheap. [00:08:15] Speaker 00: But if that's the driving consideration behind the features that plastic offers, [00:08:19] Speaker 00: That is just another example of why you wouldn't use it in a component like a casing centralizer. [00:08:25] Speaker 00: A person with skill in the art who's aiming to build something as important as an oil well would not use components that are low quality and ineffective. [00:08:34] Speaker 01: And in fact... Well, you say that, but your expert didn't say that, right? [00:08:40] Speaker 00: I'm sorry, our expert didn't say that somebody wouldn't think to use plastic in that case? [00:08:45] Speaker 00: Well, our expert declarations were directed towards the issue of analogous art and in the distinctions between... But the point is you're making arguments here which aren't supported by your expert estimate. [00:08:56] Speaker 00: Well, we're making arguments about what the nature of a down-hole well bore would be and where you would use it. [00:09:04] Speaker 00: Our expert did say that a casing centralizer is used for structural support and isolation support, which is [00:09:11] Speaker 00: basically what I'm saying, that it's a very hostile environment that's required to keep contaminants out and to prevent well bore collapses. [00:09:18] Speaker 00: It's not a natural environment for the use of plastic. [00:09:20] Speaker 00: And the only thing that the board was able to point to for this proposition is a 20-year-old reference related to plastic paraffin scrapers that are used for very different purposes in a very different part of an oil well. [00:09:33] Speaker 00: And we think for that reason that it's another example of why this is only hindsight reasoning from which the board is able to look to Carson and say that you could use plastic. [00:09:42] Speaker 00: Now another reason that you wouldn't, that a person with skill in the art wouldn't find it obvious to pull a plastic element from Carson is the fact that Carson does require this injection molding in order for it to function. [00:09:54] Speaker 00: Carson says, for example, I would point to JA 2296, [00:09:58] Speaker 00: that it achieves its objectives as a centralizer of the sucker rod and as a parapet scraper by being injection molded so that there is a tight frictional grip around the sucker rod. [00:10:10] Speaker 00: The 275 patent, by contrast, requires freedom of movement and a clearance fit so that it can move up and down and rotate freely. [00:10:18] Speaker 00: And Carson said that, in fact, having that kind of freedom of movement in a parapet scraper [00:10:24] Speaker 00: would cause failure, and it was a reason that people had abandoned, people with skill in the art had abandoned plastic in the use of paraffin scrapers in the past. [00:10:33] Speaker 00: All of that taken together shows that a person with skill in the art would not look to CARS in order to achieve the patented solution and the claims as a whole as used here. [00:10:43] Speaker 00: Now, there's also some internal inconsistency in the board's reasoning on that point, because on JA-12, the only way the board was able to find the Russell reference [00:10:51] Speaker 00: to be pertinent to a problem addressed by the 275 patent. [00:10:55] Speaker 00: It was to hold that the problem was facilitating installation by dividing into two semi-cylindrical half sections. [00:11:02] Speaker 00: Again, the only reference that the board points to here is the summary of the invention and the disclosed body. [00:11:09] Speaker 00: That's reasoning backward from the patented solution. [00:11:11] Speaker 00: That's a problem in and of itself. [00:11:13] Speaker 00: But claim 14, when it requires a divided casing centralizer, also has the claim plastic element. [00:11:22] Speaker 00: What the board has done here is it had to define two separate problems being addressed by the 275 patent, in each case deriving the problem being addressed from the patented solution. [00:11:34] Speaker 00: And they point in opposite directions because if facilitating installation is important for Russell, then it surely ought to be important for the Carson reference as well, especially when it says to use a tight frictional grip around the sucker rod and the 275 patent points in the exact opposite direction. [00:11:51] Speaker 01: You're in for your rebuttal time, Mr. Connery. [00:11:54] Speaker 01: You want to save the rest of it? [00:11:55] Speaker 01: I would be happy to save the rest of my time, Your Honor. [00:11:59] Speaker 01: Thank you. [00:12:09] Speaker 03: Okay. [00:12:11] Speaker 03: Thank you, Ms. [00:12:18] Speaker 03: Rashid. [00:12:19] Speaker 03: part of the analogous arts test, Downhall completely ignores the first test, which looks to whether or not the references are in the same field of endeavor. [00:12:28] Speaker 03: And here, clearly, the references are in the same field of endeavor. [00:12:32] Speaker 03: The Carson reference expressly teaches the ready suitability of plastic for metal in a very similar context in the same field, which was in order to provide the centralizer for the predictable established properties of plastic, including insulation, preventing corrosion, reducing friction, [00:12:49] Speaker 03: minimizing the problem of rod tubing and casing wear and tear. [00:12:55] Speaker 03: At bottom, Downhole's case confronts a hyper-technical argument about whether centralizers use inside of a casing that are structurally similar to the claimed invention, which is readily obvious when you compare Downhole's figure in its patent, figure one, to the figure in Carson's, and also [00:13:18] Speaker 03: not only are they structurally similar, they function. [00:13:20] Speaker 03: They have overlapping functions in order to center a casing or a tube or a pipe within a larger casing or a larger pipe or a larger tube. [00:13:30] Speaker 03: Moreover, they operate in the same environment because they're all in the down hole drilling environment and they allow fluid to pass the centralizer while centering the tube. [00:13:42] Speaker 03: And the answer has to be that Carson is analogous to [00:13:48] Speaker 03: to the clean bin venture, especially because here we also have Langer, which confirms that the field of endeavor is not just limited to casing centralizers that are used on the outside of the casing and that are exposed to a wellbore. [00:14:04] Speaker 03: Langer teaches that the field of endeavor would be a protector of stabilizers and centralizers for use in wellbore operations because they're all in the same or similar environment and they're directed to the same purpose of centering the tube within a larger tube. [00:14:24] Speaker 03: Downhill also raised the argument that the board is by defining the problem to be solved based on the claimed invention. [00:14:42] Speaker 03: The board didn't do that. [00:14:44] Speaker 03: The board relied on the teachings of the references and the board found that [00:14:52] Speaker 03: that Carson centralizer and the casing centralizers in the Koleshek and in Downhole are provided for the same purpose, which is the task that is outlined for defining the problem to be solved in in-ray client and in-ray clay. [00:15:06] Speaker 03: And that purpose is to centralize, stabilize, and protect well-bore tubing because they both allow well-bore tubing to be centered, to be centralized, and to protect that tubing while allowing fluid to pass through. [00:15:22] Speaker 03: And with regards to the problem to be solved, we do contest that Downhole solved any problem. [00:15:30] Speaker 03: It's not even clear to us that Downhole solved any problem here that wasn't already solved by Carson 20 years earlier. [00:15:39] Speaker 03: Instead, all Downhole did was to take the next step, which was to use plastic instead of metal. [00:15:48] Speaker 03: And it would be able to obtain a patent on already well-known funds, I guess, for treating that plastic for metal and obtaining benefits that were predictable and well-known in the art. [00:16:00] Speaker 03: There aren't any further questions. [00:16:03] Speaker 01: Okay. [00:16:03] Speaker 01: Okay. [00:16:03] Speaker 01: Thank you, Ms. [00:16:04] Speaker 01: Rashid. [00:16:08] Speaker 01: Mr. Conron. [00:16:13] Speaker 00: Thank you, Your Honor. [00:16:14] Speaker 00: I just want to make one quick point. [00:16:17] Speaker 00: The only point I want to make is that with a casing centralizer, you really only get one shot at using it. [00:16:22] Speaker 00: You put the casing into the weld board, you put the casing centralizer on, and you cement it in place. [00:16:27] Speaker 00: If it hasn't done its job, it's broken, and you have an extremely expensive mess on your hand. [00:16:32] Speaker 00: You can't just take it out and put a new one on. [00:16:35] Speaker 00: The materials that you have to use have to stand up to the test of time and the hostile environment that are used there. [00:16:40] Speaker 00: That is not true of all of the references that the board has cited in this case that are used in the interior production zone. [00:16:46] Speaker 00: So that's just another reason that we think that these are not analogous references, and it would not have been obvious from one of the skill in the art to use plastic. [00:16:54] Speaker 00: If there are no further questions, I'd be happy to answer them. [00:16:57] Speaker 01: Thank you, Mr. Conner. [00:16:59] Speaker 01: Thank both counsels. [00:17:00] Speaker 01: The case is submitted, and that concludes our session for today.