[00:00:00] Speaker 03:
reconstruction.

[00:00:01] Speaker 03:
As I'll discuss, the board plucked various elements from the prior art, going back to 12 years before the filing date of this patent, and combined it through the prism of the claimed invention.

[00:00:13] Speaker 03:
The fact is, and this is undisputed, is that Packers Plus's Stack Frac system and the method of using it that they came out with in the early 2000s was the first open-hole multi-stage fracturing system in the world.

[00:00:28] Speaker 03:
Weatherford has not pointed to any commercial example of an open-hole multi-stage tracking system that was out there prior to StackDirect.

[00:00:38] Speaker 02:
Well, a reference doesn't have to be commercial to be a reference for obviousness.

[00:00:43] Speaker 03:
Yes, Your Honor.

[00:00:44] Speaker 03:
I'll agree with that.

[00:00:44] Speaker 03:
When I discuss Yoast, I'll talk about that we're not saying Yoast shouldn't be considered just because it's an experimental reference, but there are other

[00:00:56] Speaker 03:
design criteria that were attended with EOS that rendered it as one that should not be considered in the obviousness combination.

[00:01:07] Speaker 03:
At the time that Packers Plus came out with StackFract, various competitors had been in the industry for decades.

[00:01:13] Speaker 03:
Baker Hughes, Halliburne, Weatherford, there's a slew of them.

[00:01:17] Speaker 03:
They had vast resources, vast knowledge about the oil and gas field, drilling, completions.

[00:01:24] Speaker 03:
Nobody

[00:01:25] Speaker 03:
before Packers Plus had come up with the open-hole multi-stage fracturing system that Packers Plus did in StackFrac.

[00:01:32] Speaker 03:
StackFrac was invented by Mr. Daniel Thiemig, who was the founder of Packers Plus.

[00:01:38] Speaker 00:
I have to be honest, this sort of general argument is kind of a waste of time.

[00:01:43] Speaker 00:
You've got 15 minutes.

[00:01:44] Speaker 00:
So just get to the evidence on motivation to combine.

[00:01:47] Speaker 00:
What in particular is lacking?

[00:01:50] Speaker 00:
We review this.

[00:01:51] Speaker 00:
It's a question of fact for substantial evidence in this case.

[00:01:55] Speaker 00:
We don't get a de novo review.

[00:01:57] Speaker 00:
In addition to the evidence that's discussed expressly from Yost, Thompson, and Ellsworth, you have Mr. Traham, the Packer Plus expert, who testified in a previous litigation, but that was submitted to the board and is part of the evidence of record here, that case toll tools had been used in open hole completions for many years.

[00:02:16] Speaker 00:
Why isn't that part of the substantial evidence that motivates one to

[00:02:20] Speaker 00:
combine these two technologies.

[00:02:22] Speaker 03:
Your Honor, we admit that the elements, the physical structure elements in the claimed invention were present in the prior work.

[00:02:29] Speaker 03:
Our position is that the claimed method of using these elements for open hole fracturing was not.

[00:02:34] Speaker 03:
With respect to motivation, the Yost reference, which seems to be the primary reference that Weatherford is relying on, was a 1989 experiment that the government did to figure out how it can increase US oil reserves.

[00:02:49] Speaker 03:
And it had an open-hole completion system where they were running multiple stages, multiple frac jobs per stage to figure out what particular criteria would yield the best results.

[00:03:03] Speaker 03:
They were not multi-stage fracking for any sort of commercial purpose.

[00:03:08] Speaker 03:
They were trying to see how can we get the most oil out of the ground, out of the formation.

[00:03:14] Speaker 03:
Yost then realized the same Yost well that the Yost paper is about

[00:03:19] Speaker 03:
later was discovered to have problems in terms of it wasn't isolating its zones.

[00:03:23] Speaker 03:
And our expert, Ms.

[00:03:24] Speaker 03:
McGowan, as we pointed out in our appellate brief, pointed to a reference that the Department of Energy published that said, look, we were experiencing leaking between the zones in the Yoast well.

[00:03:36] Speaker 03:
The fact that you are having this failure in zonal isolation suggests that your multi-stage fracking was going to be compromised.

[00:03:45] Speaker 03:
because you were losing pressure among your zones, and you weren't going to be able to perform optimal multistage fracturing.

[00:03:51] Speaker 03:
And our experts said, in view of that, if you're having this leakage between the zones, that would guide one of ordinary scale in the arc to go back to cemented plug-and-perf fracturing.

[00:04:03] Speaker 03:
And that's what the Department of Energy did.

[00:04:04] Speaker 03:
After the Yoswell, after they ran these experiments in 1989, they went back in later wells and used cemented plug-and-perf operations.

[00:04:15] Speaker 03:
Moreover, the Kim and Abbas paper that Weatherford relies on, which did some testing on stone in a lab to see what kind of fraction would work best, found that, hey, look, I looked at the Yost reference.

[00:04:30] Speaker 03:
And in 1995, the Abbas author said cementing was essential.

[00:04:38] Speaker 03:
when you're doing horizontal well completions.

[00:04:41] Speaker 03:
So even after he was aware of the Yost reference, he's the author on the Kim and Abbas reference that Weatherford cites, they went back in the mid-90s and said, hey, look, cemented plug-and-perk is the way to go.

[00:04:54] Speaker 03:
The 1997 paper Thompson, which Weatherford relies on, similarly, it's about cemented casing.

[00:05:01] Speaker 03:
So there was some testing on open-hole systems back in the late 80s and early 90s.

[00:05:07] Speaker 03:
But industry didn't adopt it.

[00:05:09] Speaker 03:
Industry went away and stuck with what they were comfortable with.

[00:05:14] Speaker 04:
Am I remembering right?

[00:05:16] Speaker 04:
Just tell me if I'm not, that there was evidence in this record, and maybe the board also relied on this evidence, two separate matters, obviously.

[00:05:28] Speaker 04:
to the effect that this is an industry that needs an extra special showing to change its behavior, even though it recognized something as technologically possible.

[00:05:41] Speaker 04:
I think the summary was it's a very conservative industry in the relevant sense.

[00:05:46] Speaker 03:
Right.

[00:05:46] Speaker 03:
There is evidence to that.

[00:05:51] Speaker 04:
Doesn't that legitimately permit the Finder of Fact to discount the kind of real world nobody was doing this for a long time evidence?

[00:06:03] Speaker 03:
I don't think so, Your Honor.

[00:06:04] Speaker 03:
As we pointed out in our briefs, there were failures in Yoast.

[00:06:08] Speaker 03:
One skilled in the art looking at what Yoast achieved would realize, look, this wasn't economically feasible to do on a commercial scale.

[00:06:17] Speaker 03:
Mr. McGowan, our expert, said,

[00:06:19] Speaker 03:
If you look at the production increase that Yos achieved with his open-hole simulations, it was equal to what you would get if you drilled a horizontal well in a naturally-pressured formation.

[00:06:31] Speaker 03:
So one skill in the art, looking at this, would say, OK, I see you tried open-hole.

[00:06:35] Speaker 03:
You got the same production that I would have got if I just drilled a hole without fracturing.

[00:06:41] Speaker 03:
Why would I go away from plug-and-perf, where I could specifically control, precisely locate where the fractures are going to be?

[00:06:49] Speaker 03:
So, Your Honor, I would suggest that, yes, this industry is sort of slow to change.

[00:06:56] Speaker 03:
But once something is discovered, once something novel has come out that changes how much money you're going to make, how much oil you're going to get out of the ground, companies quickly adapt to it, which is exactly what happened here when Packers Plus came out with StackFract.

[00:07:10] Speaker 03:
Baker Hughes copied it.

[00:07:12] Speaker 03:
Weatherford, Halliburton, Schlumberger, all had systems, open host systems predicated on the StackFract design.

[00:07:19] Speaker 03:
And the board found that.

[00:07:20] Speaker 03:
The board found copying.

[00:07:21] Speaker 03:
The board found industry praise.

[00:07:23] Speaker 03:
What the board did not find was commercial success.

[00:07:27] Speaker 03:
And our view is that the record evidence shows that Packers Plus made hundreds of millions of dollars annually.

[00:07:34] Speaker 03:
The vast majority of it.

[00:07:37] Speaker 04:
I thought that, tell me if I'm wrong, that what the board said about this is, yeah, there's some commercial success, but we don't really know how much credit

[00:07:47] Speaker 04:
How much weight to give that in part because, you know, your best evidence is that in a particular formation, your system was now being used for something over 50 percent.

[00:08:00] Speaker 04:
But if you look at the industry as a whole, you know, it's not quite that impressive.

[00:08:05] Speaker 04:
And we don't know, roughly speaking, what the denominator is of your several hundred million dollars.

[00:08:11] Speaker 03:
Right.

[00:08:11] Speaker 03:
The board was concerned that it didn't have evidence with regard to market share.

[00:08:15] Speaker 03:
Yeah.

[00:08:15] Speaker 03:
Right.

[00:08:16] Speaker 03:
But I would submit, and we cited the Tech Air case, Your Honor, that evidence of market share isn't dispositive as to whether there was commercial.

[00:08:23] Speaker 03:
Right.

[00:08:23] Speaker 04:
But I mean, all the board is doing is saying we recognize a bunch of things that actually point in your favor.

[00:08:30] Speaker 04:
But we're considering the whole package, including the strength of the prior art and what's missing from the objective indicia evidence, though we quite credit some of it, like the copying and some amount of success tied to your method.

[00:08:46] Speaker 04:
But on the whole, we don't think it changes what we would otherwise conclude from looking at the art.

[00:08:53] Speaker 03:
As we argued, we don't think the board properly credited Packers Plus's commercial success with StackFract.

[00:09:00] Speaker 03:
The evidence is clear, even if you do the math conservatively, that Packers Plus made hundreds of millions annually on StackFrag.

[00:09:08] Speaker 03:
That's a considerable amount of money.

[00:09:10] Speaker 03:
That's commercial success.

[00:09:11] Speaker 03:
In the PPC broadband case, this court found that $50 million was efficient.

[00:09:15] Speaker 04:
Isn't there a kind of Dirksen principle here?

[00:09:17] Speaker 04:
$100 million may not actually be real money.

[00:09:21] Speaker 03:
Well, you said the board needed to look at everything, the whole picture.

[00:09:26] Speaker 03:
And if you look at it with the industry praise,

[00:09:29] Speaker 03:
that Packers Plus received for StackFrac, where companies were saying, hey, look, this put Packers Plus on the map.

[00:09:34] Speaker 03:
It became the darling of the industry.

[00:09:36] Speaker 03:
It changed the industry.

[00:09:37] Speaker 03:
It's hard to not tie that to the commercial success of StackFrac.

[00:09:42] Speaker 03:
And I would submit to your honor that a reasonable mind would not come to any conclusion other than StackFrac was commercially successful.

[00:09:51] Speaker 03:
And the board didn't come to that conclusion.

[00:09:52] Speaker 03:
And it's a little bit of a puzzle, because it found all this industry praise.

[00:09:56] Speaker 03:
It found topping.

[00:09:57] Speaker 03:
But then it said, even despite the numbers into the hundreds of millions of dollars, that it couldn't really give proper credit to commercial success.

[00:10:04] Speaker 03:
And I would submit, Your Honor, that commercial success, with the other secondary considerations that the board found, actually guide toward a fighting of non-obviousness over the motivation to combine that the board found for obviousness.

[00:10:22] Speaker 03:
With respect to there's an issue about whether

[00:10:26] Speaker 03:
Packard's plastic sorry rapid completion should have got an opportunity to respond to the Kim and embossed paper and the McClellan paper If you look at the final written decision of the board for example on pages 56 and 57 when they're talking about the motivation that They believe was there to combine the references or why one of ordinary skill in the art would have looked to an open-hole system

[00:10:48] Speaker 03:
The sites to those conclusions are the Kim and Abbas and McClellan papers.

[00:10:53] Speaker 03:
But those are not part of the invalidity grounds that Weatherford relied on in their petition.

[00:10:59] Speaker 03:
We asked to be able to respond to those, and the board denied us from being able to provide expert testimony on those references.

[00:11:08] Speaker 03:
In addition to the substantive issues with the references, we think it was an abuse of discretion for the board to have considered those references, not as supplementary

[00:11:16] Speaker 03:
supplemental evidences, but they were the motivating references that the board looked at in their motivation to combine analysis.

[00:11:24] Speaker 03:
We believe that was improper.

[00:11:26] Speaker 03:
At minimum, this case should be remanded with instructions that we be allowed to further brief the Kim and Abbas and McClellan papers.

[00:11:43] Speaker 03:
There's also in the

[00:11:45] Speaker 03:
With respect to the open hole references that Weatherford relies on, there seems to be sort of a sleight of hands in that we're not claiming that we invented fracturing in open hole horizontal wells.

[00:12:00] Speaker 03:
What the claim is about is performing a multi-stage fracturing procedure in an open hole.

[00:12:07] Speaker 03:
And there seems to be this assumption that, well, if you knew how to frack in a horizontal well,

[00:12:15] Speaker 03:
then that means that it would have been obvious to do multi-stage fracking.

[00:12:19] Speaker 03:
Aside from the fact that nobody did it before it's Packers Plus, it was not technically obvious to do that because of the zonal isolation problems, for example, that Yost experienced.

[00:12:28] Speaker 03:
It was Packers Plus that came up with the idea, well, how can we achieve zonal isolation to make multi-stage fracturing and open-home work?

[00:12:36] Speaker 04:
And what do the claims identify as the answer to the how question?

[00:12:43] Speaker 03:
It's the how of.

[00:12:45] Speaker 03:
Well, if you look at claim one of the 774 patent, it talks about how you have the packers where the wellbore annular segments are isolated.

[00:12:56] Speaker 03:
It specifically says that.

[00:12:58] Speaker 03:
So the solid body packers alongside each of the sliding sleeves.

[00:13:02] Speaker 04:
I thought early in this argument you

[00:13:05] Speaker 04:
said, acknowledged, whatever the right term is, that the equipment itself is not different from what you would find in the prior art, only the method of using it without similar casing.

[00:13:20] Speaker 03:
The use of the solid body packers to do open-hole multi-stage fracking was novel.

[00:13:27] Speaker 03:
That was not done.

[00:13:28] Speaker 03:
What was done in Yost, they had inflatable packers.

[00:13:31] Speaker 03:
that were alongside the stages, and that's why they experienced the zonal leakage, which Mr. McGowan talked about.

[00:13:38] Speaker 02:
Council, you're well into your rebuttal time.

[00:13:41] Speaker 02:
We'll give you two minutes for rebuttal.

[00:13:46] Speaker 02:
Thank you.

[00:13:46] Speaker 02:
Mr. Wilson.

[00:13:52] Speaker 01:
Thank you, Your Honors.

[00:13:55] Speaker 01:
The evidence of obviousness here is overwhelming.

[00:13:58] Speaker 01:
There were two grounds for obviousness, one starting with Yoast.

[00:14:03] Speaker 01:
Yoast was a multi-stage open-hole fracturing operation.

[00:14:07] Speaker 01:
It required only two simple substitutions that were expressly disclosed in both Thompson and Ellsworth.

[00:14:12] Speaker 01:
To achieve the claimed invention, ground two started with Thompson, which is the entirety of the structural limitations of their claims.

[00:14:19] Speaker 01:
in a single system, the only thing that Thompson lacked was performing the method disclosed in Thompson in open hole.

[00:14:26] Speaker 01:
And as Your Honors pointed out earlier, Appellant's own expert admitted that using case-told tools in open hole was known and obvious and could not be a basis for patentability.

[00:14:37] Speaker 01:
We think the obviousness case here is overwhelming.

[00:14:39] Speaker 04:
So was the admission that you just referred to something other than

[00:14:46] Speaker 04:
the very general statement that, of course, some, maybe even many, tools used in cemented holes can be used in uncemented holes.

[00:15:01] Speaker 04:
But I'm remembering, I guess, and tell me if I'm wrong, when I went and looked at that testimony, it doesn't say every single tool you use in a cemented hole, you can use in a uncemented hole.

[00:15:16] Speaker 04:
In which case, there could really be invention involved in saying, this particular tool, which nobody had really thought to use in the uncemented hole, we should do that.

[00:15:30] Speaker 01:
I don't recall exactly whether it says what your honor is asking.

[00:15:34] Speaker 01:
However, what it does say is that solid body packers, in particular, can be used for isolation and open hole.

[00:15:40] Speaker 01:
That was, in fact, the specific subject matter in which the general statements were made.

[00:15:45] Speaker 01:
So that's the only part of the Thompson apparatus.

[00:15:48] Speaker 04:
And that's the zone isolating feature?

[00:15:50] Speaker 01:
Correct, your honor.

[00:15:51] Speaker 01:
That's the only part of the Thompson apparatus that cares whether it's in a cased hole or open hole, because it's the only part of the apparatus that actually touches the weldable wall.

[00:15:59] Speaker 01:
So that was the only issue.

[00:16:01] Speaker 01:
The only issue is, can you use those solid body packers that are in Thompson in open hole?

[00:16:06] Speaker 01:
Ellsworth says you can, and you can use them for stimulation.

[00:16:10] Speaker 01:
their experts, Appellant's own experts, admitted that yes, it was known to use these solid body packers in open holes.

[00:16:18] Speaker 01:
So that's really the only issue in getting from Thompson to the challenge claims.

[00:16:23] Speaker 01:
So those are the 7-7-4 claims, and if we back up and talk about the 6-3-4 and 5-0-5 claims, which Appellant's counsel didn't mention, those claims are not limited to fracturing.

[00:16:34] Speaker 01:
Now, our contention is that they have waived any argument on the 634 and 505 claims because it was not listed as an issue to be decided by the court on appeal.

[00:16:43] Speaker 01:
They provided merely a footnote saying whatever arguments we make for 774 also apply to 634 and 505.

[00:16:50] Speaker 01:
That's incorrect because the 634 and 505 claims are not limited to fracturing.

[00:16:55] Speaker 01:
And counsel for appellants admitted before the board that their case is much weaker in that respect

[00:17:02] Speaker 01:
especially when it comes to the secondary consideration evidence, and you'll find that at JA 1560 to 1561, which is the transcript of the board's hearing, where counsel for appellants admitted that the evidence of praise was focused on fracturing.

[00:17:16] Speaker 01:
So, for example, that evidence would not be as compelling in the 634 and 505 claims.

[00:17:22] Speaker 04:
Can you say something about Mr. Koreshi's point that there was some kind of process problem, procedural problem, notice problem?

[00:17:31] Speaker 04:
process problem as a generic descriptor with respect to the board's use of Kim and Abbess and McClellan?

[00:17:39] Speaker 01:
Certainly, Your Honor.

[00:17:40] Speaker 01:
So what happened before the board is we put forward our case of obviousness.

[00:17:46] Speaker 01:
There's really no dispute about the motivations to combine, which are expressly in Yost, Thompson, and Ellsworth, whether you start with Thompson and use appellant submissions or whether you start with Yost, which expressly discloses open-hole multistage fracturing.

[00:18:01] Speaker 01:
What they tried to do then was to come back and say, despite Yost's disclosure of open-hole multistage fracturing, a person of ordinary skill in the art would not have used open-hole multistage fracturing because they would have been afraid of it.

[00:18:14] Speaker 01:
And we cited Kim and Abbas in response to that as rebuttal points to say it was well within the knowledge of a person of ordinary skill in the art to do open-hole multistage fracturing.

[00:18:25] Speaker 01:
Not just Yost discloses that.

[00:18:27] Speaker 01:
Here's a couple of additional examples that prove that people were not afraid of open-hole multistage fracturing.

[00:18:33] Speaker 01:
That's all those references were cited for.

[00:18:35] Speaker 01:
Just like in the Genzyme versus Biomerin case, those references were legitimately cited as rebuttal evidence.

[00:18:42] Speaker 01:
They had an opportunity to respond.

[00:18:44] Speaker 00:
The board didn't even cite any of those references in its motivation to combine discussion.

[00:18:50] Speaker 00:
My review of

[00:18:51] Speaker 00:
The board's opinion was the only time either of those references were mentioned was in the secondary consideration discussion.

[00:18:56] Speaker 00:
Am I mistaken?

[00:18:58] Speaker 01:
So I believe the board cited those, at least Kim and Abbas, at appendix pages 53 to 54.

[00:19:06] Speaker 00:
The reasonable expectation of success part.

[00:19:08] Speaker 01:
That's correct.

[00:19:10] Speaker 00:
All right.

[00:19:10] Speaker 00:
Got it.

[00:19:10] Speaker 00:
Yes.

[00:19:11] Speaker 00:
I remember that now.

[00:19:12] Speaker 00:
But yes.

[00:19:12] Speaker 00:
Okay.

[00:19:12] Speaker 00:
Thank you.

[00:19:13] Speaker 01:
Yes.

[00:19:13] Speaker 01:
The grounds, ground one and ground two, were the same throughout the proceeding.

[00:19:17] Speaker 01:
There was no APA violation here.

[00:19:19] Speaker 01:
The grounds that the board relied on for obviousness, both grounds, were the same as the grounds presented at the petition.

[00:19:25] Speaker 01:
Those references were merely submitted as rebuttal evidence to appellant's own argument.

[00:19:32] Speaker 00:
How are they a rebuttal evidence to the appellant's own argument as opposed to additional evidence supporting yours?

[00:19:39] Speaker 00:
I don't understand.

[00:19:40] Speaker 01:
So the motivation to combine that we relied on and that the board relied on was, in fact, found in Yost, Thompson, and Ellsworth, and in Appellant's own expert admissions that open-hole, the use of case-hole tools in open-hole was known in the art.

[00:19:55] Speaker 01:
Again, they tried to rebut that showing by saying, despite all of that, let's assume that all that's true, a person of ordinary skill in the art would have been afraid of open-hole multi-stage fraction.

[00:20:07] Speaker 01:
McClellan and Kim and a boss were cited to rebut that in fact they show they talked about for example complex fracture geometries Kim and a boss says Fracture initiation is the same encased hole and open hole and in fact open hole is preferred in that regard So it was rebuttal evidence So I think I've spoke about motivation to combine the boards

[00:20:35] Speaker 01:
Findings of motivation to combine are supported by substantial evidence.

[00:20:38] Speaker 01:
They're expressly disclosed in the references, as I've discussed.

[00:20:42] Speaker 01:
Moving on to the secondary considerations, the board found no commercial success.

[00:20:46] Speaker 01:
They found no long felt but unmet need and no defying of conventional wisdom, as well as no unexpected results.

[00:20:54] Speaker 01:
All of those findings are supported.

[00:20:56] Speaker 02:
They found what?

[00:20:57] Speaker 02:
Industry praise and competitor copying.

[00:21:01] Speaker 01:
That's correct your honor.

[00:21:02] Speaker 01:
They've said there was a modicum of evidence of industry praise and copy and that that evidence was outweighed by what the board termed the elements of the claims being readily discussed and applied in a variety of oil and gas industry prior art including open hole multistage completion And that's a joint appendix 56 and we submit that the board was legally correct in that respect and that its findings are supported by substantial evidence

[00:21:29] Speaker 04:
It may not affect the ultimate weighing, but why was the board not clearly erroneous on the question whether there was commercial success?

[00:21:44] Speaker 01:
So I believe the correct standard is substantial evidence, and I believe the board okay.

[00:21:48] Speaker 01:
Sorry about that.

[00:21:49] Speaker 01:
Yes, you're right.

[00:21:50] Speaker 01:
No problem so But I believe the board's opinion was supported by substantial evidence And here's why if you look at there were three aspects to their commercial success argument first was Packers plus sales the board said What you have failed to do is to tell us that?

[00:22:08] Speaker 01:
You've got an apparatus, fine, stack-frack.

[00:22:11] Speaker 01:
Stack-frack looks exactly like Thompson.

[00:22:13] Speaker 01:
It is Thompson, right?

[00:22:15] Speaker 01:
Thompson anticipates the stack-frack.

[00:22:18] Speaker 01:
Your claims are method claims that require use in a horizontal open-hole well.

[00:22:22] Speaker 01:
What you have failed to do is show us how much of those sales were performed in a horizontal open-hole well.

[00:22:29] Speaker 01:
Those tools can be used in cased hole, they can be used in vertical wells.

[00:22:33] Speaker 01:
It was your burden to show the use of those tools.

[00:22:37] Speaker 01:
They failed to present any evidence of that use.

[00:22:40] Speaker 01:
The same is true of the Baker Hughes sales data that they provided, which is far weaker, and they had no Weatherford sales data.

[00:22:47] Speaker 01:
On top of that, the Baker Hughes sales data and Weatherford sales data really have no use at all.

[00:22:54] Speaker 01:
Baker Hughes was a number of frack sleeves, and Weatherford's was a percentage of open-hole

[00:23:00] Speaker 01:
Completions that the board said you provided no evidence of what's encompassed within that What equipment was being used yes?

[00:23:08] Speaker 01:
So as we argued to the board Weatherford used for example swillable packers which the board found were not solid body packers.

[00:23:17] Speaker 01:
There's no challenge to that finding here, so I Submit that the board's findings on commercial success are supported by substantial evidence just

[00:23:30] Speaker 01:
And if there are no further questions, I'll cede the rest of my time.

[00:23:33] Speaker 02:
Nothing further, counsel.

[00:23:35] Speaker 01:
Thank you, Your Honor.

[00:23:36] Speaker 02:
The grocery has a couple of minutes for a bottle.

[00:23:45] Speaker 03:
Your Honor, on that last point, the board did not rule that swell packers could not be a type of solid body packer.

[00:23:52] Speaker 03:
In the claim construction section of the final written decision, all the board said

[00:23:56] Speaker 03:
is that there's an agreement between the parties that solid body packers don't cover inflatable packers.

[00:24:02] Speaker 03:
I did not say swell packers.

[00:24:03] Speaker 03:
With respect to ground two, the Thomson Ellsworth combination.

[00:24:07] Speaker 03:
Thomson, we've discussed, was a cemented application.

[00:24:11] Speaker 03:
Ellsworth, which is what Weatherford relies on to bring in the open-hole aspect to the combination, is not even about hydraulic fracturing.

[00:24:19] Speaker 03:
It's about making sure water in one zone doesn't get into another zone when you're actually recovering oil and gas from a well.

[00:24:27] Speaker 03:
It's not about fracturing at all.

[00:24:29] Speaker 03:
So as we argued in our briefs, there's no motivation to combine the cemented Thompson reference with the reference that's not even about fracturing.

[00:24:39] Speaker 03:
With respect to the Kimmon and Boss and McClellan papers, the board did

[00:24:49] Speaker 03:
just cite to those papers for motivation and in their discussion of the level of ordinary skill in the art.

[00:24:55] Speaker 03:
I just looked at it.

[00:24:56] Speaker 03:
It's on page 46, where they say it would have been obvious for one skilled in the art to consider open-hole completions.

[00:25:05] Speaker 03:
And then it simply cites the Kemen embossed paper, which we were not able to respond to via expert testimony.

[00:25:12] Speaker 03:
Moreover, the Kemen embossed paper was about doing fracturing tests in a lab

[00:25:18] Speaker 03:
on a 100 millimeter by 200 millimeter by 100 millimeter-ish piece of stone.

[00:25:23] Speaker 03:
It was not an application in an actual formation.

[00:25:29] Speaker 03:
With respect to the commercial success, the documents we cited for industry prey specifically talk about stack frac being used in a horizontal well.

[00:25:42] Speaker 03:
That's what made stack frac

[00:25:45] Speaker 03:
Industry game-changer is that it was being we were able to do multi-stage fracking in a horizontal step stack for I can In conclusion your honors.

[00:25:55] Speaker 03:
I would ask that the court Reversed the board's decision or at least vacate the decision with further instructions to them.

[00:26:05] Speaker 02:
Thank you Thank You counsel the case is submitted