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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

CAMERON INTERNATIONAL CORPORATION

*

VS. * October 16, 2020

*

NITRO FLUIDS LLC * CIVIL ACTION NO. W-20-CV-125

BUTCH'S RATHOLE & ANCHOR SERVICE, INC. W-20-CV-124

BEFORE THE HONORABLE ALAN D ALBRIGHT

MARKMAN HEARING (via Zoom)

APPEARANCES:

For the Plaintiff: John R. Keville, Esq.

William M. Logan, Esq.

Merritt D. Westcott, Esq.

Winston & Strawn LLP

800 Capitol Street, Suite 2400

Houston, TX 77002

For Defendant Nitro Fluids:

J. David Cabello, Esq.

James H. Hall, Esq.

Stephen D. Zinda, Esq.

Cabello Hall Zinda, PLLC

801 Travis Street, Suite 1610

Houston, TX 77002

For Defendant Butch's Rathole & Anchor Service:

David T. DeZern, Esq.

David M. Lisch, Esq.

Gray Reed & McGraw LLP

1601 Elm Street, Suite 4600

Dallas, TX 75201

David Greer Henry, Esq.

Gray Reed

900 Washington Ave., 8th Floor

Waco, TX 76706

Court Reporter: Kristie M. Davis, CRR, RMR

PO Box 20994

Waco, Texas 76702-0994

(254) 340-6114

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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Proceedings recorded by mechanical stenography, transcript

produced by computer-aided transcription.

(October 16, 2020, 9:01 a.m.)

MS. MILES: Markman hearing in Civil Actions W-20-CV-125,

styled Cameron International Corporation versus Nitro Fluids

LLC, and Case No. W-20-CV-124, styled Cameron International

Corporation versus Butch's Rathole and Anchor Service,

Incorporated.

THE COURT: Good morning, everyone. If I could hear

announcements first from the plaintiff and then from each of

the defendants.

MR. KEVILLE: Good morning, Your Honor. For the plaintiff

Cameron, John Keville from Winston and Strawn. With me are

Merritt Westcott and William Logan. And also on today is Robin

Nava and Brigitte Echols, both at home, are in-house Cameron's

parent, Schlumberger.

THE COURT: Very good. Thank you, sir.

MR. HENRY: Good morning, Your Honor. David Henry on

behalf of Butch's Rathole and Anchor Service, Inc. And along

with me is David DeZern, and though not yet admitted to the

Western District, our colleague Alex Uber is along with us as

well.

THE COURT: Okay. Someone's on mute, I think.

MR. CABELLO: My apologies, Your Honor. David Cabello,

Cabello Hall Zinda, on behalf of the defendant Nitro. And I

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

3

have with me Stephen Zinda. And Mr. Hall also is in the

background here. He hasn't logged on, but he's here with us.

THE COURT: Very good. And to anyone who's here that is

not counsel but a client representative or in-house, I

appreciate you taking the time to be here and attend this

hearing.

Give me one second to get ready. Okie dokie.

We sent out yesterday our preliminary constructions and

what we are going take up this morning. The first claim terms

we are going to take up are "fluid conduit" and a "single fluid

conduit."

The Court's preliminary construction was plain and

ordinary meaning. To the extent someone would like to argue

why that -- they -- in support of the argument that it was

indefinite, I'm happy to hear that. You may begin.

MR. HENRY: Yes, Your Honor. I'll start my screen share

here.

THE COURT: Okay.

MR. HENRY: Yes. We'll be arguing both the "single fluid

conduit" and the other term on the slide here. Couple of --

THE COURT: Mr. Henry, let me interrupt you. I failed to

put on the record that you all have absolutely the best case

style that I've had yet, Butch's Rathole and Anchor Service,

Inc. It may be the winner for the year. So it's great to have

a case that -- I never get any publicity, but if I were to

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

4

happen to, this would be one I would be happy to be attached

to.

(Laughter.)

MR. HENRY: Thank you, Your Honor.

Well, a couple of over-arching comments that really apply

to both of the terms we'll be arguing today on indefiniteness.

Now, I'll certainly not read these slides to you.

But because each and every one of the building blocks of

these patents at issue are, you know, old elements, every

single element, which is of course not unusual, but the

specific arrangement and sequence and constituency of the claim

combinations with precision are what are going to be needed to

inform the public what they can and cannot do.

Now, with respect to both of the terms that we're arguing

today are indefinite, we have a problematic, in our opinion,

situation where we have a combination basically consisting of

type elements, "one and only one," and in the case of the other

term, and "single" in this case, consisting of only a certain

constituency of elements.

But then we also have comprising elements. In this case

the "fluid conduit" as we'll get through in just a moment --

and we'll be skipping to Slide 11 when we get to "single fluid

conduit" by the way.

But we have -- so this combination of elements or parts of

the element that include certain things. But then we also have

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

5

this limitation but they can only include certain things. And,

respectfully, we believe that plain and ordinary meaning just

does not inform the public what they can't do.

So if we can skip now to Slide 11.

By way of context, and following in that same theme, we

have of course the element we're arguing, a "single fluid

conduit." But as I pointed out, just again putting it in

context, the claim speaks of the single fluid conduit

"including," and it talks about connection blocks, and it talks

about one or more pipe sections. Then it talks about

"coupled." And, you know, it doesn't say necessarily joined

together or linked. It's just coupled. So there -- we have

things that will include things that couple.

There could be other constituents, but we don't know what

they are. So we have multiple layers of ambiguity here. So

"single fluid conduit." Okay. That in patentese, basically we

would suggest, translates to consisting of one, exactly one,

fluid conduit that comprises. And again, as you saw in the

claim, you know, a connection block, a first one, a second

connection block, one or more pipe sections. And then this

"coupled" between.

As is clear from the patent itself and general knowledge

in the industry, "coupled" doesn't always necessarily mean

connected together. So what else is there? Because of this

upper limit of "single," you know, at some point adding

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

6

something as compared to most normal claim limitations, adding

something avoids the scope of this claim. But how much is too

much? Where in the specification, where in the prosecution

history, how do we, how does the public, how does somebody

involved in fracking know when we've reached that one thing too

many?

The second layer of ambiguity has to do with another

limiting term "through only." The claim talks about that the

fracturing fluid can be delivered to the tree through only the

single fluid conduit. And again, there's something that if you

add -- you get outside the scope of the claim, there's an upper

limit here.

So where does that leave us? Well, one option possibly is

that fluid is delivered through only, you know, a pipe and two

connection blocks. And what I have here in the diagram

possibly could satisfy that. That could be the outer bounds.

One more thing than what's shown here, you know, pipe or pipes

between two connection blocks may get you -- that may be the

limit. And adding one more element gets us outside of that.

But then there's an option two, because we don't know the

limit. We don't know what includes, or is included, in that

fluid conduit. There's no really specified limit. And so here

in this diagram perhaps this is the outer limit. We don't

know. But you could have a connection block up at the tree.

You could have a connection block all the way down at the

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

7

source. Because there's only this coupling language, we don't

know what's in between. And so, you know, this could be the

outer limit.

And so there's always the "so what." Well, the so what

is, if it's first option, then the design around, the thing

that the public can do, is in the case on the right in the

green, would, for example, represent a hose. Well, you add a

hose in parallel, and now the fluid is no longer delivered

through only the single fluid conduit.

But then what if it's option two? Well, here on the right

you see what it would take to design around. It's dramatically

different. It's practically adding an entire second section in

order to avoid that "through only" and through this undefined

including who knows what between one connection block and

another.

So, Your Honor, we -- our position is we simply don't

believe this plain and ordinary meaning informs the public,

informs anyone in the fracking business. What do we add to get

around "single fluid conduit"? You know, simply staying out of

the fracking business just is not a reasonable option.

So, Your Honor, that's our position on that element.

THE COURT: Got it. That makes sense.

I'll hear from the plaintiff.

MS. WESCOTT: Your Honor, this is Merritt Wescott with

Cameron. Can you hear me all right?

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

8

THE COURT: Yes, ma'am. Thank you for asking.

MS. WESCOTT: So how about we start -- and William Logan

is going to be running the slides for me today.

How about we start with Slide 6, please?

Your Honor, I think that Butch's goes to great lengths to

contort claim language that is quite clear, almost to the point

of drawing in the mind's eye exactly what is required for the

claim.

If you read the claim, which is up on the screen right

now, it says, "a single fluid conduit coupled to a well

fracturing tree, such that during a fracturing operation,

fracturing fluid is delivered to the well fracturing tree

through only the single fluid conduit, wherein the single fluid

conduit includes a first connection block positioned at the

well fracturing tree, a second connection block and one or more

pipe sections coupled between the first connection block and

the second connection block, such that fracturing fluid can be

routed from the second connection block to the first connection

block through the one or more pipe sections and then to the

well fracturing tree through the first connection block."

This is claiming a single fluid conduit. And the

fracturing fluid is entering a fracturing tree only through the

single fluid conduit, and then it is telling you what the

single fluid conduit must include.

Even if it was not so explicit in the claim language,

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

9

which it is --

Can we skip to Slide 8, please? I'm sorry. Slide 9.

What single fluid conduit means here, and the "single" of

single fluid conduit is drawing a distinction between this

system which requires one single fluid conduit into the tree

and prior art systems which include frac iron. In frac iron

system multiple smaller diameter pieces of frac iron are

attached to a fracturing tree. In this system one single fluid

conduit is attached to the fracturing tree.

It's quite plain from the claim language what exactly is

required here. And there's a lot of effort that's gone to

contort the claim language so that it purportedly covers some

kind of situation where the single fluid conduit somehow runs

all the way to the source of the fracturing fluid, which is a

truck that's backed up into the parking lot at the well site.

There's absolutely nothing in the claim language that indicates

that this single fluid conduit must run all the way back up to

a truck backed up in the parking lot.

Your Honor, we think that this claim language is very

clear and would be reasonably understood by a person of skill

in the art and is not indefinite.

THE COURT: Would you go back to the claim, please?

So the way I read it, it wouldn't go -- it wouldn't go, to

take Mr. Henry's point, for example, what could we add? It

could not go beyond the second connection block, right? For

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

10

example, of anything that was added beyond the second

connection block would be outside of what comprises that

element, right?

MS. WESTCOTT: Yes, Your Honor.

THE COURT: It says the first connection block -- it says

"one or more pipe sections coupled between the first connection

block and the second connection block." So that's where it

ends, right?

MS. WESTCOTT: The second connection block is where this

claim ends.

THE COURT: Okay.

Mr. Henry, do you want to respond to Ms. Westcott?

MR. HENRY: Yes, Your Honor. First of all, if, as with

other elements, they said only second -- only a first and only

a second or only two, that might be accurate. But, again, we

have this including or effectively comprising language, as I

showed in that earlier diagram where we had a connection block

at the very end.

And when the claim language talks about the elements being

merely coupled, there's nothing whatsoever that rules out there

being a connection block in the middle. There's nothing that

rules that out.

And the other thing that makes this problematic is the

"through only." You know, that is where adding -- again,

adding an element gets you around this claim term. What do we

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

11

add? You know, at what point have you added enough to where

it's no longer a single fluid conduit through only which the

frac fluid gets to the tree?

And so the diagram that was criticized as going all the

way to the source, we would say that given the open-ended

construction that Cameron proposes is entirely reasonable. It

could be, you know -- that's one of the ambiguities. It's one

of the options.

So that's my response, Your Honor.

THE COURT: Ms. Westcott?

MS. WESTCOTT: Your Honor, in the situation in which

somebody adds a second connection block, has a first connection

block and then has pipes in series as required by the claims,

one or more pipes, and then adds a second connection block, the

second connection block becomes the connection block of the

claim.

So I'm not sure exactly what the ambiguity here would be.

I mean, the idea that the second connection block can be

somewhere downstream of the manifold and the apparatus that

pressurizes the -- that pressurizes the fracturing fluid and

all the way back up at the truck in the parking lot is not how

any person of ordinary skill in the art would read this claim

language.

THE COURT: Mr. Henry, my concern about your -- my

question about your concern is that it doesn't sound -- and I'm

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

12

not one skilled in the art, but it doesn't sound that real

world to me. That one skilled in the art wouldn't be able to

look at this and know beyond which that it would not be

included.

MR. HENRY: Well, Your Honor, if we had -- if we had clear

boundaries of what the single fluid conduit was, that might

take care of it. But it's -- again, it includes comprising

elements.

The problem again, I want to highlight this, is that

according to the claim, the fluid is delivered through only

whatever that is, whatever the components are. They use

including language, not consisting. So the question is, at

what point do you add an element where there's no longer fluid

going "through only"? This is sort of an -- as compared to

like a parallel adding another channel, this is sort of a

linear "through only."

And again, the claim language doesn't limit it in any

shape or form to just two connection blocks. We put it at the

very end just for ease of visualization, but it could have

easily been further, you know, down the chain toward the tree,

and there would be three connection blocks. There's nothing in

the claim that rules that out.

But we don't know if adding that third connection block is

no longer a single fluid conduit, nor whether the fluid at that

point is now being delivered only through that single fluid

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

13

conduit.

THE COURT: Ms. Westcott?

MS. WESTCOTT: Your Honor, the language "through only" the

single fluid conduit means when it touches the tree, that fluid

conduit, and it touches the tree at the first connection block,

that is the only way that the fluid is getting into the tree.

And I think that that's quite explicit in the claim language.

And I think that that is what distinguishes this from the prior

art where there are multiple channels of fluid from the -- and

multiple conduits feeding into the fracturing tree.

THE COURT: Mr. Henry, anything else?

MR. HENRY: Your Honor, we stated our position. I won't

waste any more time repeating myself.

THE COURT: You're not wasting time. I will be right

back.

(Pause in proceedings.)

THE COURT: Would Nitro like to add anything from what

Mr. Henry said?

MR. CABELLO: With respect to the indefiniteness, Your

Honor?

THE COURT: With regard to anything about this claim term.

MR. CABELLO: Well, yes, Your Honor. I guess when you

look at this single fluid conduit, and I guess adding on to

Mr. Henry's views, certainly I agree that there could be other

connection blocks because it isn't close-ended.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

14

The Court may recall that we also had a view with respect

to this particular issue, arguing that the position that is

indefinite -- and I don't know if the Court wants me to take

that up at this time, because it kind of goes hand-in-glove

with this term. And if the Court is inviting me to do that, I

will certainly do that, Your Honor. But other than to say that

we certainly agree that the single fluid conduit is indefinite

for the reasons that Mr. Henry says, I have nothing more to

add.

But I do have plenty to add with respect to fluid conduit,

because we do believe that fluid conduit requires an adjustment

joint or a pivot joint, as we've said in the past. And the

disputed issue here relates to whether or not this fluid

conduit should be adjustable.

And we know that the -- that Cameron has taken the view

that what we're trying to do is limit the claim term to the

embodiments that are set forth in the figures, and has cited in

a lot of case law, Phillips, Thorner. And we don't disagree

with the case law there, but we do believe that it's important

to stay focused on what the invention is and the purpose of the

disclosures and what the improvement was over the prior art for

these two inventions, both the '132 and the '645.

I know that the Court doesn't like for us to focus on what

the law is, but we think that certainly the Trustees of

Columbia University, which is on the screen now, is very

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

15

important because it is -- it is case law that is directly

relevant to a case such as this where the patent embodiments

are limited to, or exclusively disclose fluid conduits with

some sort of adjustment or some sort of pivot joint.

And so, you know, the focus then is whether or not -- and

you see it there in the highlighted term, "The patentee's

choice of preferred embodiments can shed light on the intended

scope of the claims."

And so if we can go on to the next slide -- Mr. Zinda's

running those slides. You know, we have some further case law

that relates to the invention such as this where it's confined

to no more than the confined structure or method.

If we can move on to the next slide, you'll see that the

prior art -- and certainly there is a confession of the prior

art in the '132 patent, and that is that there are basically

large lines. Those are well-known in the art. And so what

we're trying to solve here is a problem that exists with large

lines.

Let's move on to the next slide.

So what we see here in the prior art is a large line, a

single line. And so we see a single line basically going to

the well. So then we have to ask ourselves, well, what

is special, what is different about that single line? And we

think that that's where these patents are focused.

Can we go to the next slide?

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

16

And so when you look at the embodiments set out in the

'132 patent, you see that there is an adjustment piece. So the

manifold is adjustable so that no frac lines are needed from

the manifold to the tree. And so you see this concept of

adjustment joints and pivot joints that are illustrated, not

just in one embodiment, but on all the embodiments. And that's

why we cite the Trustees of Columbia University case, because

it really focuses on our attention on what the patentee

intended -- what the inventor intended was the full scope of

the invention. And that is that this single line include a

pivot joint or a -- or some sort of adjustment.

If we can go to the next slide.

So you see that those adjustment joints and those pivot

joints help to account for the difference in the elevation and

the spacing differences that were cited as the problem to be

solved by these patents. The patents confess that large single

pipes are well-known in the art, and we've shown the Court that

prior art.

And so what are we trying to solve? What is the problem

that the '132 and the '645 patent are trying to solve? And

that is that they're trying to solve differences in elevation,

differences in alignment which can only be solved using these

adjustment joints and these pivot joints that are disclosed in

the '132 and the '645 patent.

Let's go on to the next slide.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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And so we see an illustration of some of those adjustment

joints. In this case it's a linear adjustment, so you can see

where in Figure 7 and Figure 8, the length of the pipe, if you

will, the length of the single line can be expanded or

contracted to make up for the alignment issues that the patent

teaches us exist with large single lines.

Let's move on to the next one.

And so we've been criticized, Your Honor, for saying that

there has to be an adjustment and a pivot joint, and we've been

criticized by Cameron because they say that it isn't consistent

with the doctrine of claim differentiation. And certainly as

the Court knows, the doctrine of claim differentiation is

certainly a guiding principle, but it doesn't necessarily

dictate how these claims need to be construed.

We believe that the asserted claims, 9 and 11, and our use

of a pivot or an adjustment joint are certainly very consistent

with the doctrine of claim differentiation if the Court were to

construe the claim term as we have suggested. Then we've shown

in this Venn diagram that Claim 9 includes both rotational

adjustment and lengthwise adjustment. And then Claim 11 refers

to a specific type of adjustment joint, and that is one that

can be expanded lengthwise which is illustrated there for Claim

11, that lengthwise adjustment. But the proffered claim term

construction would include both the rotational and the

lengthwise adjustment.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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Let's move on to the next slide.

And, Judge, there's been lot said about Monoline

technology. And so one of the things that Cameron would like

us to believe is that Monoline means a single line, a single

large line. But as we know, the prior art teaches that

seven-inch diameter lines, that's a large line because in

reality all of the commercial embodiments, and certainly

Cameron's commercial embodiments, are seven-inch lines. And so

the seven-inch line was well-known in the art.

But Cameron has coined this word "Monoline technology."

But Monoline doesn't mean a single line. And you'll see in the

highlighted term that the Monoline technology has both swivel

flanges. And they talk about these three degrees of freedom

needed to accommodate the misalignment between the frac tree

and the frac manifold.

And so, again, this slide is very consistent with the

teachings of the patent which arose from -- or arose at the

time of this commercial technology or commercial embodiment,

and that is that there has to be some degree of freedom up to

three.

And so Cameron would like to limit the claims of the '132

patent and certainly the '645 patent to rigid pipe lines that

have no adjustment means. And we believe that the Board of

Columbia University -- or the Trustees of Columbia University

case is right on point, because it requires the Court to look

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

19

at what the purpose of the invention is. And that is disclosed

in all the embodiments.

The cases Cameron cites are certainly on point where the

Court would be -- would be limiting the invention to a single

embodiment that's illustrated. But if we look at the patents,

both the '132 and the '645 patent, we see that in all

instances, in all embodiments, Cameron has disclosed, and we

believe claimed, embodiments that have at least one degree of

freedom in the claims and certainly in the embodiments that are

disclosed in the patent.

Let's go to the next slide.

And so the next slide basically deals with the connection

block, Your Honor. And if you'd like, I'm happy to take that

up, the position of that which we contend is indefinite. But

for that, let me stop and see if the Court has any questions.

But I do have something further to add with respect to the

connection block.

THE COURT: No. Why don't you wrap up so I can give

Ms. Westcott an opportunity to respond?

MR. CABELLO: All right. Well, then let me go on to the

connection block. Oh, I'm sorry. Wrap up with the connection

block or wrap up with the --

(Clarification by the reporter.)

MR. CABELLO: Your Honor, I'm going to stop there on fluid

conduit. I think I've said enough. But as I said, I would

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

20

like to at least take up connection block whenever the Court's

ready for it.

(Technical issues.)

(Clarification by the reporter.)

THE COURT: Can everyone mute other than me?

Mr. Cabello, why don't you tell me what it -- why don't

you wrap up anything you'd like to say with regard to either

fluid conduit or single fluid conduit?

MR. CABELLO: That's all we have, Your Honor. As I said,

the next term I believe is "connection block," and so we'll

take that up in order.

THE COURT: Evan? I don't -- I'm just checking. I didn't

see that we had -- I thought the next one was rigid fluid

pathway.

MR. CABELLO: I'm sorry, Your Honor. When I say

"connection block," I'm talking about the term "positioned at"

which is with respect to the connection block, but...

THE COURT: Mr. Cabello, we're missing each other here.

What is it that you want to take up with connection block? Is

it the claim term?

MR. CABELLO: It is the "positioned at." So the term is

"first connection block positioned at" which I thought was --

THE COURT: We're not at -- we're going to get to

"positioned at" in three more claim terms.

MR. CABELLO: And that was my understanding, Your Honor.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

21

With that, I'll stop.

THE COURT: Okay. Then we're on the same page.

So, Ms. Westcott, would you respond to anything that was

just said about single fluid conduit?

MS. WESTCOTT: Yes, Your Honor. So just to be clear,

Nitro did not dispute "single fluid conduit," and it did not

make an argument that that claim term was indefinite. So we

object to their attempt here to try to tag on an indefiniteness

argument at the last minute.

What Nitro did argue was that "fluid conduit" should be

limited to include either an adjustment joint or a pivot joint.

Looking at Slide 10, you can tell even from the claim

language itself that this is inappropriate. Basically what it

says here is that the single fluid conduit includes a first

connection block and a second connection block, block and pipe

sections between them. Okay? It does not say that it includes

an adjustment joint. It does not say that it includes a pivot

joint.

Claim 11, which depends directly from Claim 9, does add on

an adjustment joint, and that's the only thing that it adds.

Go to Slide 11, please. Back up just one. Thank you.

Case law is quite clear that claim differentiation can

inform the meaning of claim terms, and especially where the

only thing added in a dependent claim is the difference between

that claim and the claim language of the independent claim.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

22

Here there is no indication that there should be any adjustment

components in the language of the independent claim, Claim 9.

With regard to adjustability, though --

Would you please back up to Claim 10 for a moment?

With regard to adjustability though, this system in

Claim 9 is linearly adjustable, because you can add one or more

pipe sections to increase the length of the pipe between the

connection blocks.

So to the extent that Nitro believes that adjustability is

required, that requirement is met by Claim 9. And it can be

met without having to add a particularized adjustment joint.

Secondly, Nitro is incorrect that the specification states

that the invention must include adjustment joints or pivot

joints. Specifically, the abstract of the patent says that

adjustment joints may be added and that pivot joints can be

included. It also states at Column 1, Lines 58 through 64,

which is not what is on the screen right now but I will read to

it you.

It says, "Certain aspects of some embodiments are

disclosed herein and are set forth below. It should be

understood that these aspects are presented merely to provide

the reader with a brief summary of certain forms the invention

might take and that these aspects are not intended to limit the

scope of the invention. Indeed, the invention may encompass a

variety of aspects that may not be set forth below."

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

23

And it further states at the top of Column 2 that in one

embodiment the fracturing manifold includes an adjustment

joint, which you can see at the top there of Slide 12.

As is well-known case law, the claims should not be

limited to a preferred embodiment shown or described in the

specification even if that is the only embodiment shown or

described in the specification, and that is not the case here.

The specification is clear here, and the claims are clear here,

that "fluid conduit" should not be read to include adjustable

joints of any kind, be that pivot joints or adjustment joints.

And, Your Honor, if there's any response -- essentially it

should be read as its plain and ordinary meaning. A person of

skill in the art knows what a fluid conduit is. They can tell

what a fluid conduit is in the specification. The

specification does not indicate, nor do the claims indicate

that adjustment joints of any kind should be read into the

construction of that term.

THE COURT: Mr. Cabello?

MR. CABELLO: Your Honor, I was -- I was pleased to hear

Ms. Westcott agree that there can be some adjustment in the

fluid conduit.

Let me go to Slide 2, Your Honor, of our presentation.

And, you know, given that Ms. Westcott is suggesting that there

can be some adjustment, I'm thinking that one possible

compromise might be that if we change Nitro's proposal to

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

24

"adjustable channel for conveying fluid," which comprises this

adjustment that Ms. Westcott is talking about. So it would be

"adjustable channel for conveying fluid, comprising linear

adjustment or a pivot joint."

This would take care of the adjustable feature that we

believe exists that is different in this patent over the prior

art.

As you'll notice when we display the prior art, there was

a solid channel going from the source of the fracking fluid to

the well. And if there is going to be an adjustment by adding

different spool pieces, then I would proffer that one comprise

might be in changing this claim term to "adjustable channel for

conveying fluid comprising linear adjustment or a pivot joint."

THE COURT: My guess is it's unlikely Ms. Westcott is

going to agree to the adjustment joint or pivot joint, but I'll

let her speak for herself.

MS. WESTCOTT: You're correct, Your Honor. The

adjustability of Claim 9 is not inherent within the term "fluid

conduit." It is because of the claim language that allows a

person to add one or more pipe segments between the connection

blocks that allows the adjustability and length. The fluid

conduit is a fluid conduit. It is not inherently adjustable,

and there's nothing in the specification that says so.

THE COURT: Anything else, Mr. Cabello?

MR. CABELLO: Your Honor, again, I think I'm repeating

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

25

myself, but clearly the patent teaches adjustment in pivot

joints. And there's a confession of what the prior art is, and

that is seven-inch lines. And the problem to be solved is

adjustment and alignment problems. And that problem is solved

by having an adjustable fluid conduit of some fashion.

THE COURT: Anything else, Ms. Westcott?

MS. WESTCOTT: And it is also solved by having a claim

where you can add multiple pipe sections together to extend the

length of the fluid conduit.

It is -- can also be solved, and is solved additionally in

dependent claims by adding an adjustment joint, for example, in

Claim 11. And I'll note for the Court that other patents that

issued prior to this one but in the same patent family,

prosecuted by the same prosecuting attorney, examined by the

same examiner, include specific claims for a pivot joint. This

one does not.

So when the patentee wanted to claim a pivot joint or when

it wanted to claim an adjustment joint, it did so. And when it

didn't, it didn't.

THE COURT: And it seems to me that to the extent that

Mr. Cabello's right, this is something that you all will have

to just fight out with respect to issues on validity. If they

want to make an argument that prior art would invalidate, and

your way of distinguishing it would be, for example, to pivot

or do something, then we'll figure out at that time if this is

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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an issue or not, correct?

MS. WESTCOTT: Correct. Correct, Your Honor.

THE COURT: I'll be right back.

(Pause in proceedings.)

THE COURT: So here's what I'm going to do. I realize I

may just be buying myself time and you all effort. It seems to

me that this is an issue that -- I have no idea what -- how

this is going to break when the initial expert claims are

exchanged. I'm going to stick with plain and ordinary meaning.

But in the event that when the plaintiff gets -- I'm

sorry -- when the defendant gets the plaintiff's expert report,

if they feel that the infringement contentions made by the

expert in his report, or when the plaintiff gets the

defendant's validity report, the contentions that are made by

the expert in the validity report fall -- are a position that

is a claim construction position, then you all will just have

to come back to me, and we may -- I'll have to address it. We

may have another mini Markman.

So, Mr. Cabello, if you feel -- what I don't want to

happen, because I just did a little bit in the trial I just had

was, we got to trial and then there was a fight between the

experts of what was meant by "plain and ordinary meaning," even

though there was an agreement as to what plain and ordinary

meaning was on top of that. And yet the experts still said the

other one's plain and ordinary meaning was wrong.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

27

I don't want that fight. That fight is not for the jury,

that's for me. So my admonition to both sides, especially for

plaintiff, I guess, because they'll have the infringement --

first infringement report is, you know, if you take a -- I

don't want to sound threatening. I'm just saying that if the

plaintiff takes the position that the defendants' products

infringe the element of fluid conduit or a single fluid

conduit, if the defendants believe that your expert has taken a

position that is not as a matter of law, the plain and ordinary

meaning or vice versa on validity, which actually may come up

because of what Mr. Henry was saying about how -- you know, how

this was novel over the prior art, then you all need to get

back to me and I need to decide what to do.

And the problem for you all is that if I decide that you

haven't stayed within the scope of plain and ordinary meaning

and your expert has gone beyond that, then that's a bad time to

find that out. So I would use a rule of reason in terms of the

positions you're taking with respect to whether or not the

element -- the fluid conduit and the single fluid conduit

element in the defendants' products infringe or don't infringe.

And if you all feel that the other side isn't -- doesn't have

a -- is not using a methodology that is consistent with what

the plain and ordinary meaning should be, I'll take it up at

that time.

So it's plain and ordinary meaning for both those claim

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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terms.

The next claim term is "rigid fluid pathway" and "one and

only rigid fluid pathway."

Mr. Henry or Mr. Cabello, which of you is going to start

on that?

MR. HENRY: Your Honor, I'm going to be speaking to the

"one and only," but I don't know if Mr. Cabello wanted to

address the subset of that first. Either way is fine with me.

THE COURT: Mr. Cabello?

MR. CABELLO: I'll yield to Mr. Henry, and then I'll

follow on, Your Honor.

THE COURT: Okay.

MR. HENRY: Thank you, Your Honor.

Well, with the -- or as I've already mentioned, we have,

we believe, in this next element that fatal combination of

consisting and comprising in a single limitation.

Just by way of context to illustrate why this is confusing

and why we just simply cannot determine the outer boundaries,

is if you look at the claim itself, we start with, you know, a

plurality of fluid conduits. Now, there's no distinction

between rigid or not rigid, you know, pipes or hoses, as it

were. We just have a bunch of fluid conduits between a

manifold and the various trees.

Then we go down and we have, further in the claim, where

we have at least one, you know -- again, open-ended, at least

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

29

one rigid fluid conduit. And somehow that then translates down

to we're going to end up with one and only one rigid fluid, not

conduit, but pathway. And that's not a defined term. We don't

know exactly what that is.

Now, further, when we talk about the "at least one," you

know, including -- upon including here -- we have "rigid fluid

conduit including." And then it goes down and it talks about a

plurality of pipe joints and connection blocks and then it goes

further, and it's very, very open-ended.

And once again, because of this "one and only one,"

there's an upper limit. We don't know what that upper limit

is. And so once again, we look at possibilities.

You know, our first level of ambiguity has to do with the

phrase itself. Is it that there's several pathways but only

one is rigid? Or is there only one pathway and it's solely

rigid?

And some of these diagrams the left side -- the right side

is prior art. The left side has to do with various

possibilities here. You know, is the one rigid pipe and then

maybe one hose in parallel? Is that, you know, a one and only

rigid fluid pathway, because one of those pathways or conduits

is rigid? Or is it the next one? Is it that there's only one

and it's a pipe, and that's all that this covers?

Or do -- we have on the far right -- and there are other

possibilities as well, but on the far right we have illustrated

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

30

two rigid pipes. You know, is that a pathway? It's still

going from the manifold to the tree. It's only going there,

but it's two separate. Is that still one and only? So that's

the first level.

The second level is that again, we have this mini conduit

sitting out there per the claim itself, no distinction between

rigid and non-rigid. It doesn't say where each of those goes.

And then it talks about again somehow those ending up being one

and only one pathway as opposed to conduit.

Now, Ms. Westcott earlier said that, you know, conduit was

well understood and she said we could have, you know, any

number of pipes, for example. Again, open-ended.

It's that one and only one that's so fatal, in our

opinion, to this claim element. We don't know what that one

additional element is where we're no longer within the scope of

that claim.

And then finally we don't really know for sure what rigid

is but when applied to a pathway. We might be able to figure

out what rigid is. I mean, I think we can probably all agree

that's steel pipe. But when applied to this pathway, what does

that pathway include? What does it eliminate? Because we can

only have one. Does it include multiple types of conduits,

rigid and non? We just don't know.

So, Your Honor, we would -- we would suggest that -- well,

you know, the question is what do we add? Because they created

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

31

this upper limit. They created the one more thing exceeds the

scope of this claim.

And the public has a right -- you know, our clients have a

right, people in the fracking industry have a right to know

what's that one more thing we can add and not infringe this

claim?

That's the sum of my comments on that point, Your Honor.

THE COURT: Mr. Cabello, is there anything you'd like to

add?

MR. CABELLO: Yes, Your Honor, if I may.

Go to Slide 16 of our presentation. Mr. Zinda will put

this up.

MR. ZINDA: Do you want to wait until they rebut it?

MR. CABELLO: Oh, I'm sorry. Mr. Zinda is suggesting that

I wait for rebuttal to be offered on Mr. Henry's position. I

do have a slightly different position, but I'm not arguing

indefiniteness with respect to this rigid fluid pathway.

THE COURT: Mr. Cabello, why don't you go ahead and argue

whatever you want to say, and Ms. Westcott or whoever on the

other side can take it up. And we'll do it all at once.

MR. CABELLO: Thank you, Your Honor.

What I want to do is go to Slide 16, which is up on the

screen now, Your Honor.

And of course the question -- Cameron offers the plain and

ordinary meaning. Of course we believe that the question that

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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a person of ordinary skill in the art would understand is,

given the context of this particular invention. And again we'd

cite the Court to the Trustees of Columbia University.

But we have to look at not just the claim. We have to

look at the specification. How do you construe the claim in

light of the specification?

And with that, we can go on to the next slide.

Because you also have to look at what the patentee said

was well known in the art. And that is these large fracturing

lines with the seven-inch bore are difficult to adjust and

align. And so what problem was being solved by the patentee is

adjustability in misalignment problems. They clearly state it

in the specification, and they teach that in all of their

embodiments.

Now, Cameron would like to focus on the claims, and we

certainly have to focus on the claims for both infringement and

construction. But we have to look at the specification to see

what the specification teaches is both the problem and how to

solve that problem.

If we can go to the next slide, Your Honor, which is Slide

18 of our presentation. What we have here on the screen that's

solid -- I'm sorry -- the dotted-red line, if you will, is the

manifold running through the oil field. And then the purple

certainly is the well to be fractured.

But we have elements of adjustability illustrated. We

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

33

have rotational adjustability shown by Lines 69, 71 and up at

the top of -- next to the wellhead, 73. So you have this

element of rotational adjustability.

And then we show, and the patent teaches, by lines 68, 70

and 72 is this linear adjustability. And with this both linear

and rotational adjustability, you can compensate or you can

deal with the problems that the patent teaches us exist with

large seven-inch pipelines.

And so again, going on to the next slide, we've shown you

this, Your Honor, which is the linear adjustability, and I

won't spend any time on it.

And if we can then go to Slide 20. The patent

specifically talks about these rotatable pipe joints, 170 as

well. And those are further illustrated in Slide 21. And so

you see in Figure 12 an example of a rotatable pipe joint. You

have the flange at the bottom which can be threaded. They

teach threads and can therefore make up for alignment problems

at the flange joints.

And then you also have this swivel ring, 176, which is at

the top of Figure 12 which can also make up for misalignment

problems with the studded flanges, if you will. So when we

look at the teachings in the patent, there is an ability to

adjust for both linear and misalignment problems at the studded

pipe joints.

And so again, with the Venn diagram on the next slide, on

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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Slide 22, you'll see that the asserted claims, Claims 1, 10,

14, 17 and 20, we contend include some element of

adjustability, and that is a rotational adjustment and a

lengthwise adjustment. And so with the subsets that are shown

in this Venn diagram you see the lengthwise adjustment in Claim

5 and you see the rotational adjustment in Claims 6, 9, 16 and

19.

And so again, Your Honor, I know I'm repeating myself and

I apologize for that, but we have to look at the specification

to see what the problem is to be solved and how the patentee

taught us how to solve that problem. And we think that just

focusing strictly on the claims and the words of the claims in

a vacuum without opening the specification is improper. And

again we rely on the Trustees of Columbia University.

And with that, Your Honor, I'll stop.

THE COURT: Mr. Cabello, would you put that slide back up

for just a second?

MR. CABELLO: The Venn diagram, Your Honor?

THE COURT: Yes, sir, please.

MR. CABELLO: Yes, Your Honor.

THE COURT: Okay. Thank you.

I will be -- oops. I'm having difficulties today. I'll

be right back.

MR. CABELLO: All right. Thank you, Your Honor.

(Pause in proceedings.)

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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THE COURT: Okay. Thank you for keeping up --

Ms. Westcott, if you don't need that, then I can have -- you

brought slides.

If you want to take that down, Mr. Cabello, or whoever on

your side, and Ms. Westcott can take the screen.

MR. KEVILLE: Your Honor, this is John Keville for

Cameron. I'm going to turn it over to William Logan now.

And just by way of introduction, Mr. Logan is a fairly

junior associate. While I can easily make the argument he's

smarter than me, he's a 2017 grad from the law school at the

University of Alabama. And so to the extent, you know, I need

to join in, I will. I trust that he won't have any problem,

and I hope Your Honor will give him a little leeway if

necessary, as a junior associate.

THE COURT: Well, I'm usually pretty brutal on everyone.

And so -- no. Mr. Keville, I made a pretty good living for

20 years by never hiring an associate that wasn't smarter than

I was.

(Laughter.)

MR. KEVILLE: My practice as well.

THE COURT: I would think less of you if you didn't do

that.

So, Mr. Logan, I look forward to hearing from you.

MR. LOGAN: Thank you, Your Honor, and I appreciate the

opportunity to address the term.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

36

I want to begin -- and I'll share my screen here. I want

to begin actually where the Court left off with Mr. Cabello

just to set up this argument, which is this Venn diagram.

Because really it sort of encapsulates Cameron's argument on

this term which is these independent claims, the broader claims

that don't have these in them. They have a wide swath in this

Venn diagram, all this white area here that's outside the

rotational adjustment, the lengthwise adjustment. And

Cameron's position is that those independent claims, they claim

territory within this white space that's not within this red

circle or within this green circle.

THE COURT: Mr. Logan, let me interrupt you and tell you

my worry now is that I didn't do a good job of muting my screen

because when I went on mute, that was exactly the discussion I

had with my law clerk.

So I think Mr. Keville is right, that he did well by

having you make this argument. That was exactly what struck me

about the Venn diagram.

MR. LOGAN: Thank you, Your Honor.

Yeah. So I think it gives us an intuitive place to start

with this argument. And, you know, obviously we have two

separate issues to address. One is Butch's arguments that this

term is indefinite. And then after that, Nitro's argument is,

well, this term actually we need to read in these adjustment

joints and swivel joints to the term.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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And we agree with the Court obviously, Your Honor, as we

propose that this term has a plain and ordinary meaning.

THE COURT: Mr. Logan?

MR. LOGAN: Yes, Your Honor.

THE COURT: And, Mr. Logan, you haven't raised this yet,

but you may be getting there. It usually occurs to me that --

well, Mr. Henry and Mr. Cabello may have a problem that they're

together on this. And what I mean by that is, it's difficult

for one defendant to be arguing that something is indefinite

and another defendant to be saying it's not indefinite, it

means this. It usually is not great for the argument that

something is indefinite when Mr. Cabello can so passionately

argue that it is not indefinite but that I have a specific

meaning I have to give.

So you may be fortunate that you have two defendants who

are taking essentially the opposite position on this.

MR. LOGAN: Yes, Your Honor. And this time I want to say

I believe the Court may have been peeking ahead in my slides.

I skipped a few steps ahead here, because I do think that

intuitively it is important to point out.

And I do want step back for just a second on

indefiniteness to, you know, remind the Court that

indefiniteness is a high standard. It's an invalidity

standard. So it's something that has to be proven by clear and

convincing evidence. And in this case of course Cameron had

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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its expert -- as I'll walk through in just a minute -- that

went through the claims, the patent, the prior art, and talked

about this term and came to the conclusion that it was

understood with reasonable certainty.

The only other expert in this case is Nitro's expert.

Butch's did not offer an expert to support its position.

Nitro's expert looked at these same claim terms, at these same

prior art references, and, as this slide shows, came to the

conclusion that a POSITA would understand this term, and in

fact would understand it to provide one and only one route for

fluid to flow from the manifold to the respective fracturing

tree.

So in this case, Your Honor -- or in these two cases, I

should say, we only have two experts. And both of those

experts have looked at these materials, looked at the patent,

and both of them has reached the conclusion that they

understand this term with reasonable certainty.

So to that extent I do believe that, you know, at least

probative of that clear and convincing standard, that aside

from the, you know, attorney argument, Butch's doesn't have

anything to buoy its position here.

And, you know, stepping back to how Dr. Wooley reached

that conclusion, because I do think that's important. It's not

just that Dr. Wooley gave his opinion in a conclusory fashion.

In Dr. Wooley's declaration, he walks through prior art, he

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

39

walks through the claims, he's walked through the

specification.

And here's what he's found and what he's explained from

doing that. In the prior art and, you know, to their credit

Nitro of course takes umbrage with this and disagrees, but as

the Court noted, that's an issue for invalidity.

But I don't believe Nitro disagrees with the proposition

that in the prior art there were frac iron setups, which are

multiple fluid line setups that go from the fracturing manifold

to the fracturing tree. From this a POSITA would understand

that those give multiple fluid pathways between the fracturing

manifold and the fracturing tree.

So this is important background knowledge that Dr. Wooley

explained a POSITA would have. A POSITA would have this

preexisting knowledge about these multiple pathway setups using

prior art frac iron.

And, you know, importantly when we get to the

indefiniteness question, a lot of the argument that Mr. Henry

raises when he discussed this term were about, well, how do we

know what that means? And Mr. Henry actually, I believe, said

it himself when he looked at one of his embodiments that he was

proposing, and he said, well, is this one fluid pathway? It

has two separate pathways.

And I think that sort of answers the question. If you

look at it and there's multiple pathways to the tree, then it's

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

40

not one fluid pathway to the tree. That doesn't mean that this

is a part that Mr. Henry said was confusing about the term,

that the pathway can't be made up of multiple segments of fluid

conduit.

And again, this is background knowledge that a POSITA

would have from the prior art. Those prior art frac iron

systems, their runs of pipe in each of those fluid pathways

were made up of various segments of pipe joints connected by

hammer unions.

So this is something that would be very familiar to a

POSITA, and that's how Dr. Wooley explains it. It would not be

confusing to a POSITA to understand that each fluid pathway to

a tree, or in this case the one and only one fluid pathway to a

tree, might be made up of multiple pipe sections connected in

series.

So with that background, Your Honor, Dr. Wooley also

looked at the figures and the specification. And the figures

are very consistent with this. And the figures also describe

this fluid pathway, you know, very clearly in their images.

Here, for instance, you know, similar to what's claimed in

Claim 1, we have one and only one rigid fluid pathway between

that fracturing tree, 20, which is red, and the fracturing

manifold which begins at the outlet branch there with those two

valves in series.

So a POSITA looking at this would reaffirm, would

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

41

understand again, from his knowledge in the art, that what

these claims are talking about is that one and only one rigid

fluid pathway differentiating it from those prior art systems.

And in fact, that's exactly what Dr. Wooley opines on this

slide when he says, this is as opposed to the multiple lines of

prior art frac iron that provide multiple fluid pathways.

And this isn't limited to just the figures, and this isn't

limited to just snippets from the -- you know, the

specification that explain the one and only one rigid fluid

pathway concept. It was also something that came up during

prosecution. You know, originally claims were rejected for

double patenting over the '195 patent. And there the examiner

said, well, you know, this essentially seems to be double

patenting because the '195 already handles the case where you

have fracturing trees coupled to the manifold by only one rigid

fluid conduit, providing that one and only one rigid fluid

pathway.

And, importantly, the way that the patentee came around

that was adding these specific arrangements of pipe joints,

connection blocks with the flange connections that ultimately

appear in the issued claim.

So again, there was no confusion at the Patent Office.

There's no confusion in the figures. There's no confusion with

the experts who have opined in this case about what this term

means with reasonable certainty.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

42

And, you know, as Your Honor intuited earlier and we

already discussed in looking at this slide then, there doesn't

really seem to be any dispute between the parties. Because

Butch's says it can understand with reasonable certainty, it

says here's a better way potentially that the patentee could

have drafted this curve to get the same thing across. And

again, Nitro's expert reached his own conclusion that a POSITA

would understand this term.

So, Your Honor, unless there's any specific questions on

indefiniteness, I can also address Nitro's arguments about

reading in the adjustability limitation.

THE COURT: And I don't want to take -- I know you'd like

to speak. Are they much different than the arguments that were

made to the prior claim term? What I would say -- let me say

it this way. If there's anything you'd like to add to what was

said earlier about why it would be inappropriate for fluid

conduit, you're certainly welcome to.

MR. LOGAN: Yes, Your Honor. And I will do my best here

not to be repetitive. And Ms. Merritt has already handled much

better -- Ms. Westcott has already handled much better than I

could, you know, all of the basic background there.

What I would like to point out is that, you know, the

claim differentiation principle is even stronger, really, in

the '645. Because here you have both of the terms that Nitro

wants to read into the claim. And this is presented on our

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

43

Slide 22. Both those terms appear in the dependent claim. So

the adjustment joint's in Claim 6, the swivel's in Claim 9.

Nitro's position has been that's okay, because we're reading

them both in.

And, Your Honor, Nitro hasn't cited any cases for that

proposition, but it seems not very intuitive that claim

differentiation doesn't apply the more independent claims that

you read in. So that's one difference that I would like to

note for the Court.

The other difference is in the specification. Nitro has

consistently said that there are no embodiments disclosed that

don't have these adjustment joints and pivot joints in them.

But importantly in describing Figure 10, the patentee went to

lengths to distinguish that from other potential embodiments.

In fact, in this highlighted section the patentee said, as

presently illustrated, Figure 10 has those rotatable

components.

But you could have one with less degrees of freedom. And

it goes on to say, in fact, in some instances you can have some

where you just basically can rotate these pipes and these

connection blocks into position before you bolt them together.

So, Your Honor, sort of the intuition there is, as an

example, to give the example studded connection, you can rotate

that -- you know, that connection block along those studded

connections before you bolt it in place, and that lets you kind

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

44

of turn the pipe joints to the position that you want them,

which gives you some ability for linear or for vertical or

horizontal adjustment. So those embodiments are described and

discussed in the specification.

The last point that I would like to make is just to

distinguish a little bit Columbia. In discussing Columbia,

they put it up on their initial slide, Nitro says that --

Columbia says, no. To depart from the plain and ordinary

meaning, you don't need a definition. You don't need a

disavowal of claim scope.

I don't believe that's quite right, Your Honor. Columbia

dealt with a very specific question which was, do you need an

express definition? Or do you need an express disavowal of a

claim scope? In other words, do you need to put that in the

terms of I define X term to mean Y thing?

The Columbia case, you know, wasn't an en banc decision

that was overruling Thorner. And I think that's important to

point out because, as this Court has noted before in its

opinions like True Chemical, Thorner stands for the proposition

that you've got to give weight to the plain and ordinary

meaning of a term.

And unless you're finding those clear definitions or clear

disavowals of claim scope, terms should be given their plain

and ordinary meaning. That harkens all the way back to

Phillips. And that's sort of one of those standard principles

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

45

of claim construction.

So, Your Honor, with that said, I cede my time and I

greatly appreciate the opportunity to argue today.

THE COURT: Well, I had a wonderful trial lawyer in my

court this week who was from Alabama, and I always enjoy

hearing folks talk that don't have an accent. So I appreciate

your time this morning.

MR. LOGAN: Thank you, Your Honor.

THE COURT: Mr. Henry or Mr. Cabello, if you'd like to

respond.

MR. HENRY: Yes, Your Honor. David Henry for Butch's.

It's been pointed out that there were two experts in the

case, and great emphasis has been given on that, as well as the

fact that Butch's did not employ an expert. I'm certainly sure

we could have, but then we would only compound the issue here.

It's notable that, you know, if experts could so readily

divine the meaning of this term, they would have come up with

the same construction. But in this case they didn't, which in

our opinion underscores the indefiniteness of this.

I would point out too that Nautilus and its progeny

certainly do not give primacy to expert testimony. What do

they talk about over and over again? They talk about the claim

language, the specification, the prosecution history. That is

what we've relied on, Your Honor.

And in this case, given indefiniteness, the lack of

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

46

guidance as to what is enough and what is too much to satisfy

that element. And in terms again of primacy, Mr. Logan

referenced Phillips. Well, again, what does Phillips tell us?

That one of the last resorts would be extrinsic evidence.

So, Your Honor, we rely on the evidence that all the case

law says is the prime evidence here, the intrinsic record. And

there's just not enough guidance there to tell us what does and

doesn't satisfy these elements.

That's the gist of my comments.

THE COURT: Mr. Cabello?

MR. CABELLO: Thank you, Your Honor.

First of all, I want to start out with the Venn diagram.

And I will tell the Court that at least we didn't overhear

anything that the Court might have said about the Venn.

(Laughter.)

MR. CABELLO: But I do want to focus on that, because the

Venn diagram was not intended to be all inclusive of the claim.

And that's why there's a lot of white space. I mean, if we go

and we look at the claim, there's a lot of other limitations

set out in the claim. And those are in the white space.

What we wanted to focus on was these rotational and

adjustment -- or the lengthwise adjustment that are, we

believe, inherent in the claim and inherent in the

specification.

If I can go to Slide -- well, first of all, with respect

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

47

to the slides that Mr. Logan used with respect to Nitro's

expert, I will merely tell the Court that our expert was not

opining on the one and only one. It had to do with something

else. And so the issue was not directly in front of him. And

I recognized by the Court's comments that the issue with

respect to the differences in the positions taken by Butch and

Nitro are understandable.

If we can go to Slide 23 used by Cameron.

I wanted to point out, because I think it's critical here,

Mr. Logan focused on the three rotational degrees of freedom,

and then it goes on and talks about how it can be rotated to a

desired position.

What is key here, Your Honor, is that nowhere does this

patent teach no degrees of freedom. And that's what Cameron's

position is, is that there can be piping configurations that

have no degrees of freedom. The patent clearly teaches that in

some cases there can be three degrees of freedom. And

certainly this excerpt that's used by Mr. Logan teaches at

least one degree of freedom.

If I can go to Slide 31.

Mr. Logan did not focus on this, Your Honor, but I wanted

to call the Court's attention to this particular slide. You'll

notice in green at the bottom of the slide, bottom left-hand

corner of the slide, there are some valves placed in this green

line.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

48

And, you know, valves are basically on and off. And so

you see these valves appear to be three-way valves. And valves

don't just don't direct fluid, and certainly they're not taught

to direct fluid. And at least this particular embodiment, or

at least the way it was doctored up by Cameron, which suggests

that you can direct fluid either down the paper or into the

wellhead. And that's just not the case with valves, Your

Honor.

And so I know that Mr. Logan didn't focus on this

particular slide, but it is in their pack and so I wanted to

call that out with respect to this particular slide.

Mr. Logan talked about express disclaimers. You know,

we've said enough. I mean, there's certainly no express

limitations in the patent. But again, we believe that the

Trustees of Columbia University case teaches us that there

doesn't have to be an express disclaimer and certainly that we

have to focus on the embodiments that are disclosed in the

specification in interpreting the claims. So we can't strictly

look at the claims.

I think with that, Your Honor, I'm getting repetitive, and

so I'll stop.

THE COURT: Mr. Logan, anything you'd like to add?

MR. LOGAN: Yes, Your Honor. Very briefly just a few

things I would lake to touch on.

To begin with, as Mr. Henry said, Nautilus is the case

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

49

that controls when it comes to indefiniteness. And certainly

the claim terms and specification, those things are important.

But what Mr. Henry misses is that the Nautilus standard is

based on whether a POSITA would understand the term with

reasonable certainly. And that's where the clear and

convincing evidence standard comes in, because as Nautilus

makes clear, it's not whether an attorney understands the terms

or whether a layperson understands the term with reasonable

certainty. It's whether a POSITA does. And in that sense I do

believe that the extrinsic evidence of how a POSITA understands

the term is probative and does go towards that clear and

convincing burden.

Setting that aside, Mr. Cabello says that the figure that

I showed, or the slide that I showed on 23 which had the

description of it of Figure 10 that talked about the different

embodiments you could have that could differ from Figure 10, he

said it certainly doesn't show any that don't have, you know,

less than one degree of freedom.

But there's nothing in that passage that supports what he

just said. There's nothing in there that says it must have at

least one degree of freedom. Those words don't exist in that

passage. So certainly it can't be read into the passage simply

because it suits Nitro's arguments here.

Also as to the figure that Nitro showed on Slide 31,

frankly, Your Honor, I'm not sure what the relevance is about

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

50

the valves to this particular term in that figure. But I will

note for the Court, because I dont want to go unresponded to,

that certainly multiport valves are known in the art. There

are three-way valves known in the art. And that is something

that I'm sure the Court can take notice of if it would like to.

But, Your Honor, with those statements made, that's all I

have for argument on this term.

THE COURT: Okay. I'll be back in just a second.

(Pause in proceedings.)

THE COURT: We're back on the record.

Mr. Logan, you should be very happy. Despite being up

against two very articulate and skilled lawyers, you win. I'm

going to maintain construction for both "rigid fluid pathway"

and for "one and only one rigid fluid pathway" of plain and

ordinary meaning.

The next issue is outlet branches, which my understanding

is only with respect to one of the parties. If they would like

to take up -- give me one second to get there on my -- here we

go.

I guess on this one it'd be well to start with the

plaintiff. The Court's construction -- preliminary

construction currently is that the claim term "outlet branches"

is indefinite.

MR. KEVILLE: Thank you, Your Honor. John Keville for

Cameron. I'll take this one.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

51

THE COURT: Okay.

MR. KEVILLE: So, Your Honor, we've proposed, in view of

your preliminary construction, two alternative clarifying

constructions. And I will note we e-mailed those to Mr. Henry

and Butch's this morning at around 8 o'clock. I haven't heard

any response, so I assume they're not in agreement and maybe

they'll tell me differently.

But why do we offer these? Well, when Your Honor came

back with indefiniteness, we looked back at our plain and

ordinary meaning which is, "extensions from the shared trunk

line," and saw that the bulk of the briefing by Butch's really

went to they could not tell what the boundaries of the outlet

branches were. And by saying "extensions from the shared trunk

line," we didn't quite clarify the boundaries.

So what we've proposed as alternative constructions is

extensions originating from the shared trunk conduit and

extending to the rigid fluid conduits. Or, alternatively,

outlets beginning at the shared trunk line and ending at the

rigid fluid conduits. They're intended to say the same thing

but to address the complaint that was the vast majority of

Butch's, which said there was no clarity to where an outlet

branch begins and ends. And the boundaries between a manifold

and conduit for purposes of identifying the outlet branch

remain unclear. And that was in their opening brief at

Pages 16 and 17.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

52

So with apologies for any confusion, we think these new

proposed constructions will provide certainty in the structure

and the boundaries of the term "outlet branches" in full accord

with the specification and the claims, as I'll show when we go

forward.

If we go to the next slide.

If you look at the abstract, Your Honor, it talks about

the fracturing system and then it says in one embodiment, "the

fracturing system includes a fracturing manifold for routing

fracturing fluid to multiple wells." So you start at the

manifold. And then it says, "The fracturing manifold can be

coupled via fluid conduit to fracturing trees."

So that provides you a path. You go from the manifold to

the fluid conduits and to the fracturing trees.

And then in the highlighted language it explains what the

manifold is. "The fracturing manifold can include a trunk line

that provides fracturing fluid to multiple outlet branches."

So now you have the manifold has a trunk line and that provides

to multiple outlet branches which can include valves. And then

we know that we go from the outlet branches to the fluid

conduits, because that's what the earlier sentence said. "The

fracturing manifold can be coupled via fluid conduits to the

fracturing trees." So that explains the outlet branches. They

begin at the trunk line and they end at the outlet branches.

And that's consistent with the claim language, if we look

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

53

at the next slide.

So if you look at Claim 2, Claim 2 says "outlet branches

for routing fracturing fluid from the shared trunk conduit to

the individual fracturing trees." But if you have to read that

in conjunction with Claim 1 which we looked at in-depth, which

said, wherein each fracturing tree is coupled to the fracturing

manifold by at least one fluid conduit.

So now we see that the manifold in Claim 2 includes a

trunk line and the outlet branches. So again, this is clear

you begin at the trunk line. You go to the outlet branches,

and those -- and that the -- at least one rigid fluid conduit.

And Claim 18 might be one of the ones that makes it most

clear. If you look at Claim 18 in whole, it says the method of

Claim 17 wherein the fracturing manifold -- assembling the

fracturing manifold includes assembling the fracturing manifold

so as to include outlet branches having valves for controlling

flow of fracturing fluid from the trunk line -- so it's telling

you again the outlet branches start at the trunk line -- to the

multiple outlets and routing fracturing fluid from the

fracturing manifold to the multiple wells through the rigid

conduits includes operating the valves of the outlet branches

through the rigid conduits.

So again, Claim 18 makes it very clear you have the

manifold. It includes outlet branches. You start at the trunk

line, you go through the outlet branches then through rigid

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

54

conduits to get to the trees.

And I will note that there was no argument on Claim 18

that they couldn't understand the structure and where it ends.

There were actually three different indefiniteness arguments.

And so for Claim 18 there was no argument that they couldn't

understand where the outlet begins and ends. They just said it

was uncertain as to the number of valves.

And the outlet branches having valves is not uncertain.

There's no requirement that any claims say each outlet branch

having one valve or each outlet branch having two valves.

Those are possible embodiments. But in their own briefing they

didn't argue that for Claim 18 that they couldn't tell with

reasonable certainty what's the structure and where does the

structure begin and end.

You can see in the specification it says, in some

instances a fracturing manifold includes a trunk line for

providing fracturing fluid to multiple outlet branches of the

manifold. So again, the structure is clear. It tells you

where it starts.

And then we can go through the embodiments, and we can see

how some of this plays out. So this is drawn, Your Honor, this

is Figure 10 from the patent. And Figure 10, as drawn, shows

the exemplary claim for embodiment. And it requires a first

outlet branch having two valves connected in series and a

second outlet branch having two valves connected in series.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

55

Very clearly shows you the green is the shared trunk conduit.

What's shown in purple are the outlet branches. Those together

make up the fracturing manifold. And then what's shown in blue

is the rigid fluid conduit that takes the fluid the rest of the

way to the fracturing trees. And this is essentially the same

structure as Claim 10 which requires a first and second pair of

valves.

Then what we've drawn in the next slide, Your Honor, is

we've shown a modified version of Figure 10 to show the

exemplary Claim 3 embodiment. Claim 3 is broader than Claim 4.

It can include the pair of valves in series, or it can include

this embodiment.

So in this embodiment we have the same structure. The

shared trunk conduit is shown in green. The outlet branches

are shown in purple. But here there's only one valve. So this

is an alternative embodiment where the outlet branches of the

fracturing manifold include valves. So there's very clear

that's another embodiment.

And then if we get to the next slide, this is again

broader than 3 or 4. This is broad enough to capture the Claim

3 and 4 embodiments which are all just possible embodiments of

the invention, but also this embodiment where the outlet

branches for routing fracturing fluid from the shared trunk

conduit to individual fracturing trees. In this instance we're

showing an embodiment that doesn't have valves.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

56

So this again would be another embodiment showing that you

have valves this time in the shared trunk conduit, and the

outlet branches are shown connecting to the rigid fluid

conduit. Again, beginning at the shared trunk conduit and

ending at the rigid fluid conduit.

Another place that would show a POSITA would understand

where the outlet branches begin and end is this part of the

specification. The specification says, "The fracturing

manifold, 22, is mounted on at least one skid, 24." So I've

shown in yellow skid 24.

Now, the claims do not include the skid. The skid is not

claimed. But the specification makes clear that the fracturing

manifold, which is the trunk line and the outlet branches, is

what is shown on skid 24. So again, it's the green shared

trunk conduit and the purple outlet branches.

While this is not to be read into the claims, a POSITA

would be reading the specification, would look to the

specification for guidance if indeed the POSITA didn't --

wanted more clarity on where the outlet branches ended, and

would see, okay. I see from Figure 10 that they end at the

purple valves which are the outlet branches.

And I would note, Your Honor, just in this case, although

Mr. Cabello did not provide an expert opinion, there was no

claim by Nitro that this claim term could not be understood.

And so in this case where they have the high burden of clear

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

57

and convincing evidence on indefiniteness, we have a POSITA who

provided declaration evidence on behalf of Cameron that said, I

understand what outlet branches mean. We have Nitro who has

made no argument. They can't understand what outlet branches

mean. And then we have Mr. Henry and attorney argument only on

behalf of Butch's that says, we can't understand what outlet

branches mean.

And we think with the alternative construction it's very

easy. It resolves all the issues they raised. It shows

exactly where the outlet branches begin and end.

The other thing that we look at to understand why outlet

branches is not indefiniteness is the Patent Office. The

Patent Office understood what outlet branches are. This is

from the office action where the examiner was talking about the

Kajaria reference. And in there the examiner said, "Kajaria

discloses...the fracturing fluid distribution manifold

including a trunk line (Fig. 3A #60) and multiple outlet

branches (Fig. 3A No. 44A and No. 44C)."

So we also have evidence in this case, Your Honor, that

the Patent Office understood not only what outlet branches

meant in terms of this patent, but understood those to be terms

that it could easily find in the prior art.

Other prior art also uses the terms "outlet branches."

This is the Childress patent which is in the file history. And

at the abstract it says there are a number of outlet branches

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

58

that have corresponding outlet branches to each tree.

So "outlet branches" is an easily understood term both to

a POSITA in our case, both to Nitro and to the patent examiner

and to other POSITAs who wrote and invented the prior art.

Again, Childress talks about a number of outlet branches in the

specification as well.

And then so I would end, Your Honor, with Butch's not

meeting its high burden here, because Dr. Wooley, a POSITA on

behalf of Cameron, said it's not indefinite. A POSITA would

understand this with reasonable certainty. Butch's provided no

evidence to meet its clear and convincing standard. And this

is exactly what was rejected in the Whirlpool case from the

Eastern District of Texas 2016 where the Court said, instead of

submitting evidence such as an expert declaration to

demonstrate the understanding of a person of ordinary skill in

the art, Yunda relies entirely on attorney argument based on

the patent's intrinsic evidence. The Court finds such argument

unpersuasive.

So I understand Your Honor preliminarily found it

persuasive. I think they have not met their high -- you know,

their high burden of clear and convincing evidence. I think

there's overwhelming evidence the other way. But I think to

the extent there remained any ambiguity -- if you would go to

the next slide -- the clarifying constructions that we provided

easily resolve any ambiguity.

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

59

Whichever way you do it, if you substitute for outlet

branches, either extensions originating from the shared trunk

conduit and extending to the rigid fluid conduits, or you use

outlet branches beginning at the shared trunk conduit and

ending at the rigid fluid conduits, it's just a different kind

of way of saying the same thing. But I think it completely

resolves any ambiguity that Butch's has. Obviously Nitro has

no ambiguity. And we would propose that one of these

clarifying constructions would resolve the issues that they

raised and address Your Honor's preliminary construction as

indefinite.

And with that, if Your Honor has any questions, I'm happy

to answer.

THE COURT: That was a nice job.

I'll hear from defendant.

MR. HENRY: Your Honor, with respect to the proposed

clarifying constructions, we simply haven't had time

sufficiently to assess that. But with respect to responding

specifically to Cameron's arguments, Mr. David DeZern of our

firm will be taking that up.

MR. DEZERN: Yes, Your Honor. David DeZern for Butch's

Rathole. And if you can hear me, may I proceed?

THE COURT: Yes, sir. Of course.

MR. DEZERN: So thank you.

Let me start first with Cameron's two new proposed

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

60

constructions. And my apologies to Mr. Cabello. I believe I

responded to the e-mail shortly before we jumped on the Zoom

call, but we may not have seen it once we all got logged in.

But he did presciently realize that we would not agree to

those constructions, and I think for two reasons.

First, we don't believe that now is the appropriate time

to be rewriting these terms to clarify what they mean when

either the spec or file history identify what these structures

are.

Second, we believe that the proposed constructions

continue to be too ambiguous and fail to apprise one of

ordinary skill as to what structure actually satisfies these

outlet branch limitations and how to determine whether or not a

system includes it or does not include it.

THE COURT: Well, Mr. DeZern, help me out there, because

the slides that were just shown to me actually went to the

figures and articulated exactly where the outlet branches were

disclosed in the figures in the patents. It seems to me that

that makes it much more difficult for you to argue

indefiniteness, and also for you to -- I get that you -- let me

start over.

It is unfair to you on one level that you just got the

construction this morning -- proposed construction. That is a

result, however, of what I'm trying to accomplish which is by

giving the preliminary constructions, motivating people to try

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

61

and prove on what they may have proposed before, knowing what

I'm thinking.

So I just want to put on the record that the blame for

what happened is probably the Court's fault. If -- Mr. Henry

and Mr. DeZern, if you feel like you -- I am persuaded that,

based on the argument I've heard, that the claim term is not

indefinite, if you all -- I'm talking about Mr. Henry and

Mr. DeZern -- feel like you would be better served by having

time to think about the proposal that the plaintiff made and

attempting to work out either that or a better proposal, I'm

happy to let you all do that.

But I am persuaded that they articulated a sufficient --

they established to me that it's not indefinite. So,

Mr. DeZern, I'll let you and Mr. Henry tell me what is the

course I could take that is most fair to your client to make

sure that your rights are protected, that the claim

construction that I give is an appropriate one.

MR. HENRY: Your Honor, we would like to have a bit of

time to perhaps confer with both our codefendant and Cameron

before responding to this. We just simply can't in this short

notice --

THE COURT: Got it. And maybe your client.

MR. HENRY: Certainly.

(Laughter.)

THE COURT: Well, why don't we do this. Why don't we do

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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this. You all -- I always hate it when I say that. If the

counsel -- I'm not going to find this is indefinite. I'm not

prepared on the spot to force, Mr. Henry, your client or

Mr. Dezern's client, to on the spot fight over this. I don't

know that that's fair either.

You all can -- you all meaning truly in your case the

defendants, because the plaintiffs have articulated what they

think is correct. If the defendants would like to submit a --

and by the way, to the extent you do this, your argument that

it's indefinite is preserved. However, if you -- with that

understanding, if the defendants -- either defendants would

like to submit a counterproposal to what the plaintiffs have

submitted to me, you can do that. Just, you know, send it to

Evan, my law clerk, and we'll review it. And whenever we get

it -- as soon as we get it from you, we'll select the one we

think is the best. And that's the one we will make final.

And I'll also go ahead, as is my custom, at the end of the

hearing is when I lift the stay on discovery. I don't know

that we need to delay discovery commencing to get this one

claim term resolved. Because as soon as I get from you all

counterproposals, you'll have within a day or two what their

final construction is.

If any of the counsel feel like they have been

disadvantaged by not getting to argue why an alternate claim

term is necessary or better, again, let Evan know and we'll

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

63

probably just have a quick phone conference. And I'll hear

from Mr. DeZern and Mr. Cabello, if you would like to make

arguments, about why your alternative is better than what

plaintiffs have proposed. And we can do that next week.

MR. KEVILLE: Your Honor, John Keville, if I may.

I understand perfectly and I'm perfectly acceptable with

that. Just as a point of clarification, though, it was only

Butch's that said this term was in dispute. Nitro was fine,

apparently, with the plain and ordinary meaning, did not raise

this as a term in dispute.

So I'm not sure if Your Honor intends for Mr. Cabello to

have a new chance to now put this term in dispute when he was

fine with plain and ordinary meaning, or is this just between

Cameron and Butch's --

THE COURT: No. I think if I'm going to allow you to

articulate a new -- if I'm going to allow the plaintiff to say

that that's what the plain and ordinary meaning is, I think

Mr. Cabello should get to weigh in on that as well.

And by that I mean Mr. Cabello can either say he's okay

with that as the plain and ordinary meaning or he's not. And

if he's not and he thinks -- I doubt Mr. -- well, I'll let

Mr. Cabello do what he wants.

If Mr. Cabello thinks now, having heard that, that plain

and ordinary meaning needs to have a more refined meaning, he

can suggest that to the Court as well. And I'll look at the

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

64

counter arguments that are made in that regard.

MR. CABELLO: Your Honor, we certainly intend to weigh in

on this issue. You know, it's one thing to say we both -- we

being --

THE COURT: Mr. Cabello, you've won.

MR. CABELLO: Okay.

THE COURT: So, no. You get to weigh in. So you have the

panoply of responses. You're okay with it, you're not okay

with it, you're not okay with it and it should be something

different. Whatever, Mr. Cabello, however you want to weigh

in, you discuss that with Mr. Henry and Mr. Keville. I have

the plaintiff's proposal. I'll await a proposal from

Mr. Cabello, you and Mr. Henry. Once I have those, I'll look

at them and see which one I think is the most appropriate.

So let's move on to the next claim term which is the

"second connection block." I'm sorry. That's not right. Give

me one second.

The next claim term to take up is "positioned at," and

this is also Nitro only. So if I can hear from counsel for

Nitro on this one.

MR. CABELLO: Thank you, Your Honor.

THE COURT: Yes, sir. And this is the one earlier -- just

to make clear on the record, this is the one earlier you said

you wanted to make sure you had an opportunity to speak on.

And so I just want the record to reflect that this is your

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

65

opportunity to do so.

MR. CABELLO: Thank you, Your Honor.

THE COURT: Yes, sir.

MR. CABELLO: First of all, I wanted to start out with the

claim term and focus the Court on the first and second

connection block because the claim language says "a first

connection block positioned at the well fracturing tree."

And then it goes on. It says, "a connection block; and."

So we know that there has to be more than just a

connection block. And so if in fact Cameron had intended for

there just to be two connection blocks, they could have said

so. But they went on and said a second -- a first connection

block positioned at the well fracturing tree. And they didn't

tell us where it was positioned. They just said it's

positioned.

And that's our fundamental dispute with this term is what

does "positioned at" mean? And so we've got at least an

illustration, taking Figure 3 of the patent. And you can see

where this proffered term "attached to" is really irrelevant to

the position or distance, because it can be directly attached.

It can be indirectly attached, as is illustrated by the two far

connection blocks, and then the one on the -- in the middle

which is indirectly attached with respect to the far left

illustration.

Moreover and moving on to the next slide, "adjacent to" is

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

66

subjective and also therefore indefinite. We see this notion

of adjacent twice in the specification talk about adjacent

wellheads. And then also about the adjustment joints and the

length of the conduit between adjacent connection blocks, 48.

And so you have this concept of adjacent being subjective and,

we believe, indefinite.

Moving on to the next slide.

Cameron's position that meaning of "positioned at" depends

on a particular configuration I think really drives home and

illustrates the indefiniteness. I mean, how do you know? Do

you have to go ask Dr. Wooley whether something is positioned

at? And so you see this in Cameron's responsive brief. They

focus on the depending on the arrangement of a given system.

And I'm not going to read these quotes to the Court. I

know that you can read them faster than I can. But you see

that Cameron really provides us no -- and certainly the

specification provides us with no guidance at all as to what

"positioned at" means. Cameron has certainly briefed it in a

manner that only creates more ambiguity and really drives home

the fact that this term is indefinite.

Certainly the '132 patent provides no standard or method

for making the determination as to what is "positioned at." We

think, you know, certainly one illustration that -- is that

merely putting it close to might be positioned at, but we don't

know.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

67

And so when you look at the goal of the claims is to

provide guidance to the public as to what -- where the metes

and bounds of the claim is, we don't believe that it's

adequately provided in this claim term "positioned at."

And with that, I'll stop, Your Honor.

THE COURT: Mr. Keville?

MR. KEVILLE: Yes, Your Honor. I'm going to let the

attorney who's smarter than me handle this one as well.

MR. LOGAN: Thank you, Your Honor. Mr. Cabello, many of

his remarks are directly pointed at Cameron's proposed

construction in this case that had "attached to" or "adjacent

to."

Cameron, however, is perfectly fine with the Court's

preliminary construction of plain and ordinary meaning, because

Cameron believes the plain and ordinary meaning in this case is

reasonably certain. To be clear, the suggestion that

"positioned at" means attached to or adjacent to, Cameron

brought that forward in the Butch's litigation just simply

attempting to resolve the dispute between the parties there and

find some common ground, even though that ultimately wasn't

successful.

The question is, would a POSITA understand with reasonable

certainty what it means --

THE COURT: If I could ask you -- Mr. Logan, you just made

a comment that I actually meant to ask Mr. Cabello. It sounded

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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to me like a lot of what Mr. Cabello is arguing is indefinite

was actually what's contained in your proposed claim

construction; is that right? I mean, as opposed to arguing

just that "positioned at" is indefinite, a lot of his argument

was that the words that you used were indefinite in terms of

the claim construction that you proposed. Did I get that

right?

MR. LOGAN: Your Honor, I don't know if you're directing

that to me or Mr. Cabello. That was my understanding. Yes,

Your Honor.

THE COURT: Mr. Cabello, why don't you -- Mr. Logan, you

can leave your slides open.

But, Mr. Cabello, that was the impression I got from your

argument.

MR. CABELLO: It was certainly in Cameron's briefing

directly responsive to the claim terms as we raised them. This

is -- while it may have been in Nitro -- I'm sorry -- in

Butch's Rathole's briefing, it was also in Nitro's briefing.

So what I had taken what we're using is clearly what was

in the briefing papers exchanged by Cameron and Nitro in this

particular case.

THE COURT: No. Mr. Cabello, you may be missing my point.

And I'm sure that's my fault. My sense is that -- give me one

second.

So we're arguing over whether or not "positioned at" is

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

69

indefinite. But my sense was from your argument that you are

arguing that the words that plaintiff used for their

construction, proposed construction, was what was indefinite.

That was what I took away, and I just want to make sure -- that

was the way I took it.

MR. CABELLO: Your Honor, if I may. I'm going to ask

Mr. Zinda to take this issue up, because he's trying to get my

attention on some briefing. And I'm just going to go ahead and

turn it over to him.

THE COURT: I'm always happy for whoever knows best to

speak. Or more than one person. I'm just trying to get to the

right answer.

MR. ZINDA: Yes, Your Honor. Thank you for giving me an

opportunity to speak.

We did take the position that the phrase "positioned at"

was indefinite. That was actually the first portion in our

opening brief. But we did largely focus on what Cameron had

proposed as their construction, because we believe that just

illustrates how indefinite the term is. Even under their

proposal, their interpretation of the claim, particularly for

the term "adjacent," which we contend is very subjective, we

believe there's no way for a POSITA to understand whether

being -- having a connection block with five feet from the tree

or 50 feet the tree falls within or outside the scope of the

claims. And that was sort of the crux of our entire argument.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

70

But we did take the position that the phrase "positioned at" is

indefinite.

THE COURT: So let me ask you this. Let's say I were to

disagree and find that it was not indefinite, which is my

preliminary construction, is it your -- is it Nitro's position

that you would not be able to find an expert who could use the

construction that was proposed by the plaintiff would not be

able to understand it and use it either for infringement or

invalidity?

MR. ZINDA: Your Honor, I don't think there's any question

that you could find an expert that could give you his or her

opinion on what "adjacent to" means. The problem is is that

you're going to get inconsistent opinions from experts, because

"adjacent to" just -- at least from my perspective as a

layperson -- is a moderately subjective term.

Is five feet adjacent? Is ten feet adjacent? There's not

a consensus on that. There's no objective way to determine

what "adjacent to" means. And in fact, there's nothing in the

specification that they pointed to, there's nothing in the

industry that they pointed to that a POSITA would go look to to

determine whether something is considered "adjacent to" or not.

And so that's our issue with that particular term

"adjacent to," is it's very subjective. And Cameron is now

taking the position, well, it could be five feet or it could be

50 feet. It just depends on the particular configuration of

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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your well site.

Well, we're all ears to hear what these different

configurations are that would help you figure out whether

you're within or outside the scope of the claims. The problem

we have is, we don't think that exists. We don't think there's

any objective way for you to determine whether you're within or

outside the scope of the phrase "adjacent to" or "positioned

at," Your Honor. Sorry.

THE COURT: Isn't that really true in just about every

case that I have? I mean, for example here, you know, if the

plaintiff's expert takes a position that something is adjacent

to, and it's -- then your person says as a person of skill in

the art, no. No one in the oil and gas industry would believe

that 50 feet away is adjacent to. I think he's wrong. We

don't infringe. And then the jury sits there and decides

whether or not they think which of the two experts is correct

about whether it was adjacent to or not. I think I've seen

that in about every patent case I've ever had. You know, I

mean, that's why we have people, you know, skilled in the art.

But at any rate, I've gotten you off track a little bit.

Why don't we go back to Mr. Logan, and I'll let him finish.

And then of course I'll let anyone who wants to on behalf of

Nitro respond when he's done.

MR. LOGAN: Thank you, Your Honor. And I actually

appreciate that clarification. That was very helpful from

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

72

Nitro about what its position is today at the hearing.

The issue here is, and Your Honor pointed it out properly,

that these are standard litigation issues that Nitro is

pointing to. Nitro says it has no doubt it would be able to go

find an expert that could tell it, in a particular system, that

expert's opinion about whether it's positioned at the

fracturing tree or not.

Nitro's concern is there may be inconsistent opinions

between experts. Your Honor, that's a hallmark of litigation.

It shows that the term's understandable, but there may be

factual disputes that need to be resolved.

Nitro also, in responding just now, said that Cameron

raised the issue of whether, you know, a connection block

50 feet away might be part of a system. That's not quite true.

Nitro actually raised that in its briefing. Cameron's response

was simply limited to figuring out where a block is in any

particular accused system or prior art system. And whether

it's positioned at the tree is a factual determination, an

opinion issue that experts can make and maybe differ upon, that

have to be resolved, and that's perfectly acceptable within the

context of patent litigation as the Court alluded to.

So the important question here really is just would a

POSITA understand with reasonable certainty what it means for

something to be positioned at the fracturing tree? The claims

give some examples of things that are positioned at the

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

73

fracturing tree. It gives an example of attaching to a valve

at the well fracturing tree in Claim 10.

So, you know, from those disclosures from looking at the

figures, Dr. Wooley, for instance, was able to opine, you know,

the connection block could be part of the stack of valves

that's on the fracturing tree. The connection block could just

be adjacent to and connected to one of those valves.

There's various different configurations you could have

like with many claims, where a claim term might be satisfied.

That doesn't mean the claim term's not reasonably certain. It

simply means, rather unremarkably, that there may be multiple

embodiments, and that to get an opinion about how the, you

know, connection box positioned at a certain embodiment does

require looking at that embodiment.

As far as background understanding goes, Dr. Wooley didn't

base his opinion simply on speculation. It wasn't conclusory.

He talked about the prior art. He talked about how POSITAs

have an understanding from their education and experience. An

example of this would be with frac heads which are positioned

at fracturing trees.

On some fracturing trees, like the one here on 42, the

frac head's positioned on top of the tree. On other fracturing

trees, horizontal fracturing trees, the frac head's positioned

at different places on the tree. But looking at any of those

systems, a POSITA can tell with reasonable certainty whether or

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

74

not that component is positioned at the fracturing tree.

So really the question here is, and what defendants are

arguing, or more specifically at this point what Nitro is

arguing, is that they want some absolute precision. In their

briefing they say, we want to know, is it six inches away?

What about five? What about 50? They don't want to

necessarily tailor this to any particular system or any

particular arrangement or give any surrounding contextual

details. They want to know with mathematical precision, at

what measurement -- they want to get a ruler out and exclude

systems based on that.

And, Your Honor, I daresay if that were the standard,

probably the MPEP would have to be rewritten, and this Court

would be knee-deep in having to try to invalidate patents

because that demands the type of precision that the Supreme

Court said was unattainable and not necessary to satisfy the

definite standard in Nautilus.

So, Your Honor, you know, with those issues in mind, I

think that the question of whether it's positioned at a

fracturing tree, it's reasonably certain, it's a simple term,

and it's certainly a simple term to someone like a POSITA who

has experience and education in the art. And for that reason,

we believe that the Court's preliminary construction of plain

and ordinary meaning was correct.

THE COURT: I'm happy to hear any response.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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MR. ZINDA: Yes, Your Honor. So the only additional

comment I have, Your Honor, is there's simply no objective way

for a person of ordinary skill in the art to determine what

"adjacent to" means. They've offered expert testimony that

they -- that a POSITA could figure out what it means. We've

offered expert testimony that says there's no objective way to

determine whether something's adjacent to a wellhead or not.

And we believe that there's simply no evidence that there is an

objective way of making that determination, that that's

standard in the industry. And there's certainly nothing in the

specification that would allow a POSITA to make that

determination. And, again, that's why we believe the term is

indefinite.

THE COURT: Anything else?

MR. ZINDA: No, Your Honor.

THE COURT: Okay. I'll be right back.

(Pause in proceedings.)

THE COURT: We're back on the record.

The Court is going to give as its final construction plain

and ordinary meaning, which is a first connection block

attached to or adjacent to the well fracturing tree.

The last claim term, my understanding is that you all

wanted to take up, is fracturing tree. And this is in the

Nitro case.

MR. CABELLO: Yes, Your Honor. We're going to start out

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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at Slide 23. And I want to ask Mr. Zinda to take this issue.

MR. ZINDA: Just give me one moment, Your Honor.

So the crux of the issue for frac tree, Your Honor, is

essentially whether a frac tree is a tree that's simply used

for fracturing, or it's a specialized tree that's used only for

fracturing. Cameron's taking the latter position.

I think it's important to first note that there's no

dispute that a ordinary production tree is and can be used for

fracturing operations. Now, are there -- is there a

specialized tree that some uses for fracturing? Yes. And

those trees are used because production trees tend to wear out

quicker if you fracture through them.

But there's no dispute that an ordinary Christmas tree can

be fracked through, and that there's a higher pressure rating

tree that can also be fractured through that's more commonly

used for fracturing operations.

Now, this exact issue was disputed in front of the Patent

Office on a related patent which is a earlier patent in this

family. The '645 patent is a continuation of that patent -- or

indirect continuation -- excuse me, Your Honor. And the board

expressly rejected in their final written decision under the

same claim construction standard Cameron's position that you

had to have some specialized tree that was installed only for

fracturing operations.

And, in fact, Cameron's expert which also testified that

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

77

ordinary Christmas trees -- I'm sorry -- that fracturing trees

don't always have to have physical characteristics that are

greater than that of an ordinary Christmas tree, such as higher

pressure rating and larger internal diameter.

And so if you look at Cameron's definition of a frac tree,

you'll notice that it says typically and generally it will have

larger bores and higher pressure ratings. What does that mean?

It means it doesn't always have to have a larger bore and

higher pressure rating. It means it could be an ordinary

Christmas tree that you use for fracturing which was consistent

with the practice at the time of the invention as admitted by

Cameron's own expert.

Now, let's look at some other definitions relating to

trees, just for Christmas tree. As you'll note here, Your

Honor, these definitions don't just limit trees to production

fluids. They say other fluids. And that's because it was

known at the time that a tree, an ordinary tree, Christmas

tree, could be used for both fracturing and production. And

it's actually consistent with the specification. The

specification specifically teaches that the frac tree in the

patent, that's Element 20, you can produce frac fluids or

production fluids through the tree.

And so, Your Honor, our biggest issue with their proposed

construction that we think is clearly incorrect is that a

fracturing tree has to be a specialized component. Our

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

78

position is that a frac tree is simply a tree used for

fracturing. Could be an ordinary production tree used for

fracturing, could be a specialized tree used for fracturing.

It's not exclusive of one or the other.

And with that, Your Honor, I'll be more than happy to

answer any questions you might have.

THE COURT: Yes. Here's my question. This is one -- you

know, occasionally I'll go through, and I'm not a big fan of

extrinsic evidence, but it occurred to me on several of these

claim terms that in the oil and gas field, for example, there

are claim terms that have a plain and ordinary meaning. And

the reason I care about that is that when a person is drafting

a patent and they write down -- or in this case a frac -- you

know, a fracking tree or fracturing tree or -- and, you know, I

can go and look up and see that frac tree is part of

Schlumberger's oil field glossary.

In other words, it's -- I worry that, you know, when

someone's writing a patent and they use a claim term not just

for a POSITA but, you know, for people who are in that field

where they will automatically or should know that's something

that's used, absent narrowing it in some way where they say

this is a unique fracturing tree or this is -- or where you're

inventing a kind of fracturing tree where you are narrowing

what it means, I tend to think that plain and ordinary meaning

is appropriate for that or that it's well-known in that field.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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What do you think about that?

MR. CABELLO: Your Honor, if I may. This is David

Cabello.

THE COURT: Yes, sir.

MR. CABELLO: The issue we have here -- and you're going

to see it.

THE COURT: Mr. Cabello, I'm having a hard time hearing

you, and that may be just because I'm old, but if you could --

MR. CABELLO: I'll get the speaker up closer, or the mic

up closer, Your Honor.

I think the issue we're going to see here comes when we

get to invalidity positions, because the prior art has used

production trees, Christmas trees and frac trees

interchangeably. Sometimes fracking is done with a production

tree and sometimes it's done with this specialized tree.

Your proposed construction, and certainly Cameron's

proposal, would permit the argument that, well, gee whiz.

That's a production tree, it's not a frac tree and therefore it

doesn't invalidate this patent.

And I understand that the Court may not be too enamored

with extrinsic evidence, but I don't think we have to look at

extrinsic evidence because the '645 patent -- and this was the

last slide that was used by Mr. Zinda -- clearly shows that a

frac tree can either be used for fracturing fluids or

production fluids.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

80

And so we don't see there is a need to limit what kind of

tree or to talk about a fracturing tree being a specialized

tree. It can be any kind of tree that is used for -- I'm

sorry -- in a fracturing operation, whether it's production or

fracturing.

And the specification, the intrinsic evidence in this case

clearly permits that a frac tree can either be used in

production or fracturing, therefore no specialized tree. A

frac tree is just a tree that is used in the fracturing

operations.

THE COURT: So I'm actually -- this is -- you read me

backwards. This is actually one where I'm -- and I'm not

usually a big fan of extrinsic evidence, but this is one where

I'm saying the extrinsic evidence seemed to me to be uniform,

that the word "fracturing tree" actually does have a meaning.

MR. CABELLO: I'm sorry. You say the fracturing tree

actually has a meaning?

THE COURT: In other words, it is not interchangeable with

the others, that it actually is -- you know, that people know

that a frac tree is a specific kind of -- a specific product

that's designed for a specific use in fracking.

MR. CABELLO: Well, Your Honor, I guess I respectfully

disagree.

First of all, there's no need to look at the extrinsic

evidence, because the intrinsic evidence tells us that a frac

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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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tree can be used for either production fluids or fracturing

fluids, first and foremost.

Secondly, the extrinsic evidence supports the intrinsic

evidence because it describes these kinds of trees as generally

having these kinds of fluids. But it doesn't exclude -- a

production tree doesn't exclude the use of a production tree

for use in fracturing operations.

And so we believe that the extrinsic evidence is certainly

consistent with the intrinsic evidence, and that is that no

specialized tree is required.

THE COURT: Let me hear a response to that.

MR. LOGAN: Thank you, Your Honor. Yes.

The primary dispute here, and I'll share Cameron's slides.

Mr. Zinda laid out -- Mr. Zinda, at the beginning of his

statement, he said, the real dispute between the parties at

this point is does fracturing tree mean some kind of

specialized tree? And then he said right after that that there

are fracturing trees that are specialized trees that, you know,

have the higher pressure ratings that don't need the tree

savers, that are able to be fractured directly through, that

are distinct from production trees.

And with those two things being true, Cameron's argument,

the gist of it is, the meaning, the use of those very specific

words "fracturing tree" in the claim. Not oil field tree, not

production tree, that should have some meaning. It should be

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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imparted with meaning.

Mr. Cabello argues, well, when we get to invalidity, we

want to be able to read production trees on to fracturing

trees, because you could fracture through a production tree as

well.

But that's exactly the point, Your Honor. The patentee

here chose a more specific component, a fracturing tree. Not a

standard Christmas tree, not a production tree. If

Mr. Cabello's premise was correct that, you know, Cameron is

arguing you can only fracture through a fracturing tree, there

would be no need for a dispute. But that's not what Cameron's

saying. Cameron's never disputed that you can't fracture

through a production tree.

Cameron's dispute, Cameron's position is that fracturing

tree, as Your Honor mentioned, has a specific meaning in this

field. And that when the patentee used that term, it should be

respected as being towards that special meaning, not towards

more general meaning like Christmas tree or production tree.

And Your Honor's right that here the extrinsic evidence is

helpful, because this is a term that's understood in the art.

For instance, in showing that clip from the Schlumberger oil

field glossary, Mr. Zinda focused on the end of it where it

talks about maybe some have bigger bores, maybe some don't.

Notably, it says some have bigger bores and higher

pressure ratings. It may be correct that some just have a

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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normal size bore but still have higher pressure ratings.

But it's the first sentence that Mr. Zinda omits, which is

that it's a Christmas tree installed specifically for the

fracturing process. And then once we accept that premise that

there are these specialized Christmas trees, all the rest of

the extrinsic evidence makes sense.

On Slide 47 we have here Dr. Wooley who gives his opinion

that a fracturing tree is a specific type of Christmas tree

installed specifically for the fracturing process.

Now, no doubt Nitro will tell you, that's our expert, and

they don't agree with him. The problem is, Nitro had their own

expert during the IPR, John Ely. On Slide 47 it's John Ely's

opinion about what a fracturing tree is. John Ely was not

equivocal. This term has a generally accepted meaning in the

field. Specifically, a fracturing tree, also called a frac

tree or frac stack, is a specific type of Christmas tree.

And that wasn't just Mr Ely's opinion. Nitro adopted it

as well, very specifically. A fracturing tree or frac tree is

a specific type of Christmas tree. All of this --

Yes, Your Honor?

THE COURT: Keep that slide up there for a second. And if

I could hear -- I think it was Mr. Zinda who was arguing.

So, Mr. Zinda, what if, as my construction, I just take

exactly what you said in your petition, a fracturing or frac

tree is a specific type of Christmas tree installed

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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specifically for the fracturing process. I literally -- if I

quote what your client said it was during the IPR.

MR. ZINDA: Yes, Your Honor. I think the one thing that

we want to have clarified is that if you took an ordinary tree

and you installed it for a fracturing job, that tree is a frac

stack. That's a frac tree. That's our position, Your Honor.

It is not dependent on physical characteristics of the tree.

And of course if you put a tree in a well and you fracture

it, it was installed for fracking. It wouldn't be there if you

hadn't specifically intended for it to be there for fracking.

Now, might it also be used for production? Yes. A

production tree is used primarily for production. But there

are operators out there that go, well, I don't want to go buy a

really expensive tree that's got all these specialized

characteristics like higher pressure rating or higher -- a

greater flow passage. I would rather just frac through my

production tree and just let the production tree wear out a

little bit faster.

So we don't think -- we think they're taking our expert's

quote here and saying that that means that the tree's got to

have special physical characteristics. What our expert was

saying is the tree that you --

THE COURT: Well, let me interrupt you there, because even

in what you just said, if it were a production tree, you said

it might still be a fracturing tree if it was installed

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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specifically for the fracturing process, which is all -- which

is what you say here. And I would argue that the preliminary

construction we gave is a fracturing tree is not an ordinary

production tree and one that is used specifically for the

fracturing process. I mean, it seems to me a fracturing tree

is one that is used specifically for the fracturing process.

MR. ZINDA: Your Honor, I believe we agree with that. I

guess -- maybe this will help clarify the issue that we have

with their construction and kind of the way we think that

they're trying to take our former expert's testimony, is that

if you are looking, for example, Your Honor, at a piece of

prior art that has a tree, and the reference tells you that

they're fracking through the tree, our view is that that is a

fracturing tree. Whether it is also -- whether it's an

ordinary tree that's used for production or whether it's a

higher-rated tree that's primarily focused on fracturing,

that's where the rub is that we have is we think if there's a

tree and you're fracturing through it, that is a fracturing

tree.

THE COURT: If you all will hold on for just a second.

(Pause in proceedings.)

THE COURT: Okay, gentlemen. I think the Court's

preliminary construction is correct. The Court's final

construction is going to be -- for "fracturing tree" and

"fracturing trees" is going to be a fracturing tree is not an

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

86

ordinary production tree and is one used specifically for the

fracturing purpose.

And my understanding, but someone can correct me if I'm

wrong, that is all the claim terms you all wanted to take up

today; is that correct? Anyone can jump in.

MR. KEVILLE: That is all for Cameron, Your Honor.

THE COURT: Okay. And I'm assuming for everyone else. If

I'm wrong, Mr. Cabello or --

MR. CABELLO: That's all for Nitro.

THE COURT: Okay.

MR. HENRY: Your Honor, I -- oh, I'm sorry.

THE COURT: No. Go, please, Mr. Henry.

MR. HENRY: I just had a quick question. Ordinarily at

the end of your constructions on "one and only" and "single" I

might have asked for a clarification of exactly what plain and

ordinary meaning means. But as I understood, I just wanted to

be sure I was correct, that what you're suggesting is when we

exchange our infringement and invalidity submissions in the

future, that may raise that issue, and we may have a chance to

come back and request that clarification if it appears

necessary.

THE COURT: That was the first claim term we took up?

MR. HENRY: Yes, Your Honor. The one and only rigid

fluid --

THE COURT: Yes.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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MR. HENRY: -- pathway and the single fluid conduit.

THE COURT: You are correct. I'm sorry, Mr. Henry. Yes.

You are correct. If when you exchange your expert reports on

that claim term and the experts have substantially differed in

their analysis of what the claim term means as its plain and

ordinary meaning, let me know. We'll have a mini -- I'll look

at what each expert did. I'll determine which is correct. And

someone's expert report will not be coming in.

MR. HENRY: Thank you, Your Honor.

THE COURT: So have we set a trial date?

MR. HENRY: I don't believe we have, Your Honor.

MR. KEVILLE: No, Your Honor.

THE COURT: Okay. Give me just a second. I'll check with

my law clerks and we'll come up with one. Give me one second.

(Pause in proceedings.)

THE COURT: Ladies and gentlemen, we're back on the

record.

I'm told that we are free for trial on August 23rd of next

year. That's when we'll be setting the trial.

MR. KEVILLE: Your Honor, this is John Keville for

Cameron. We have two cases here. Is Your Honor combining the

two cases for one trial, or is it going to be consecutive?

THE COURT: Thank you for asking. No. We will not be

combining them for trial. But we will -- they'll be both set

on that date and we'll figure out which one will go first,

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

88

assuming neither settles. As we get closer, we'll figure

out -- and we'll do the pretrial hearings at the same time.

MR. KEVILLE: Understood. Thank you.

THE COURT: And for those of you who have not been in

trial with me, you should plan on having a seven-person jury.

I give four strikes per side. You'll be doing your voir dire

in front of the magistrate judge the Thursday or Friday before

the trial starts. He typically asks questions for about an

hour in a very robust manner. And then you'll each have 30 to

45 minutes to do voir dire as well.

I could see -- and I could also see in this case, if both

cases are still going to trial, we may pick both juries at the

same time. I mean, we'll -- seriatim, but we may pick them on

the same day. We'll get a bigger panel and we'll pick two

juries, and then we'll start with one trial, and when it ends,

we'll start with the next trial.

And so you should anticipate on a two-patent case

somewhere between 13 to 15 hours per side.

That's about all I can think of. If you have any

questions off the top of your head, I'm happy to answer them.

MR. KEVILLE: None for plaintiff, Your Honor. Thank you

for that guidance.

THE COURT: Mr. Cabello?

MR. CABELLO: Your Honor, and the 13 to 15 hours per side

does not include the voir dire. Does it include the opening

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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and closing statements?

THE COURT: It does not include the voir dire, it does not

include the opening, it does not include the closing.

MR. CABELLO: Thank you, Your Honor.

THE COURT: Thank you for asking. I should have said

that.

And so I typically give about 30 minutes for opening,

about 30 minutes for closing per side. I'm not sitting there

with a stopwatch. I just think that's about the best time and,

you know, if you're somewhere in that neighborhood, you're

going to be fine.

Anything else we can -- hopefully by the time we try the

case, we'll have no Plexiglas® in my courtroom. And no masks.

But who knows?

MR. KEVILLE: Let's hope.

THE COURT: Anything else we can take up today?

MR. KEVILLE: Not for plaintiff, Your Honor.

THE COURT: Okay. Get us your counterproposals on that

one claim term as quickly as possible, just so -- for y'all's

sake more than mine. As soon as you get them to us, we'll get

a ruling out pretty quickly on that. You should anticipate an

order on -- a complete order on the Markman sometime within

about a month.

And so having -- and also just so you know, because this

came up yesterday, the ten months to trial is a little shorter

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

90

than what is in the Court's standard time. So you're going to

have to get together knowing when the trial date is and work

from there backwards to figure out your appropriate trial

dates, you know, discovery and exchange and everything.

If for some reason you can't work out what those dates

are, that's fine. You have to protect your clients. If you

can't work those dates out, call Evan and let me know and I'll

help you out with that as well on a quick hearing by phone.

Have a good Friday. Thanks to everyone for being here.

Thanks to the -- I don't know if they were younger people or

just more junior people, I don't know. Everyone's younger than

me on this call, so it doesn't matter. But to those people who

argued, I thought you did a very fine job. Have a good weekend

and be safe.

(Hearing adjourned at 11:36.)

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

91

UNITED STATES DISTRICT COURT )

WESTERN DISTRICT OF TEXAS )

I, Kristie M. Davis, Official Court Reporter for the

United States District Court, Western District of Texas, do

certify that the foregoing is a correct transcript from the

record of proceedings in the above-entitled matter.

I certify that the transcript fees and format comply with

those prescribed by the Court and Judicial Conference of the

United States.

Certified to by me this 19th day of October 2020.

/s/ Kristie M. Davis

KRISTIE M. DAVIS

Official Court Reporter

800 Franklin Avenue

Waco, Texas 76701

(254) 340-6114

kmdaviscsr@yahoo.com

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