IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION 

NCS MULTISTAGE INC.,

Plaintiff, 

v. 

NINE ENERGY SERVICE, INC.,

Defendant. 

CIVIL ACTION NO. 6:20-CV-00277-ADA 

JURY TRIAL DEMANDED 

DEFENDANT NINE ENERGY SERVICE, INC.’S 

RESPONSIVE CLAIM CONSTRUCTION BRIEF 

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TABLE OF CONTENTS 

I. INTRODUCTION AND SUMMARY OF ARGUMENTS ............................................................ 1

II. DISPUTED CLAIM TERMS ............................................................................................................ 2

A. “internal diameter” (Claims 1, 22, 28, and 50) ................................................................ 2

B. “the region of the tubular member where the rupture disc is attached has a larger 

internal diameter than the internal diameter of the casing string and is parallel to 

the internal diameter of the casing string” (Claims 1, 22, 28, and 50) ............................ 4

1. This Limitation Is Indefinite ................................................................................... 4

2. NCS’s Proposed Construction Ignores the Claim Language .................................. 6

3. NCS’s Proposed Construction Is Geometrically Impossible .................................. 8

4. NCS’s Proposed Construction Improperly Renders One Instance of 

“Internal Diameter” Mere Surplusage. ................................................................... 9

5. The Prosecution History Supports Nine’s Alternative Construction, Not 

NCS’s .................................................................................................................... 10

6. NCS’s Objections to Nine’s Alternative Construction Are Meritless .................. 11

C. “tubular member” (Claims 1, 22, 28, and 50) ................................................................ 12

D. “sealing engagement” (Claims 1, 22, 28, 50, and 55) ................................................... 13

E. “the rupture disc is . . . configured to rupture when exposed to a rupturing force 

greater than the rupture burst pressure” (Claims 1, 22, 29, and 56) .............................. 14

F. “rupturing force” (Claims 1, 22, 27, 29, 56, and 57) ..................................................... 15

G. “specific gravity . . . of the well fluid” (Claims 24 and 52) ........................................... 17

H. “disengage the rupture disc from sealing engagement” (Claim 55) .............................. 18

1. NCS’s Proposed Construction Should Be Rejected ............................................. 18

2. NCS Has Failed to Rebut Nine’s Proposed Construction .................................... 19

I. “rupture disc is configured to disengage from sealing engagement when 

exposed to a pressure greater than a hydraulic pressure in the casing string” 

(Claims 28 and 50) ......................................................................................................... 20

III. CONCLUSION ................................................................................................................................. 21

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TABLE OF AUTHORITIES 

Cases

AFG Indust., Inc. v. Cardinal IG Co., Inc., 

239 F.3d 1239 (Fed. Cir. 2001) .................................................................................................. 2 

Azure Networks, LLC v. CSR P.L.C., 

771 F.3d 1336 (Fed. Cir. 2014) .................................................................................................. 3 

Chicago Bd. Options Exchange, Inc. v. Int’l Securities Exch. LLC, 

677 F.3d 1361 (Fed. Cir. 2012) .................................................................................................. 8 

Control Res. v. Delta Elecs., 

133 F. Supp. 2d 121 (D. Mass 2001) .......................................................................................... 2 

Epcon Gas Sys., Inc. v. Bauer Compressors, Inc., 

279 F.3d 1022 (Fed. Cir. 2002) ............................................................................................ 5, 14 

Every Penny Counts, Inc. v. Am. Express Co., 

563 F.3d 1378 (Fed. Cir. 2009) ................................................................................................ 18 

GE Lighting Solutions, LLC v. AgiLight, Inc., 

750 F.3d 1304 (Fed. Cir. 2014) .................................................................................................. 7 

In re Varma, 

816 F.3d 1352 (Fed. Cir. 2016) ................................................................................................ 17 

Markman v. Westview Instr., Inc., 

52 F.3d 967 (Fed. Cir. 1995) ...................................................................................................... 6 

Microprocessor Enhancement Corp. v. Texas Instruments, Inc., 

520 F.3d 1367 (Fed. Cir. 2008) .................................................................................................. 5 

Nautilus Grp., Inc. v. Icon Health & Fitness, Inc., 

82 Fed. Appx. 691 (Fed. Cir. 2003) ................................................................................ 9, 10, 13 

Nautilus, Inc. v. Biosig Instruments, Inc., 

572 U.S. 898 (2014) .................................................................................................................... 6 

NeoMagic Corp. v. Trident Microsystems, Inc., 

287 F.3d 1062 (Fed. Cir. 2002) .................................................................................................. 7 

Phillips v. AWH Corp. ̧ 

415 F.3d 1303 (Fed. Cir. 2005) .................................................................................................. 6 

Phonometrics, Inc. v. N. Telecom, Inc., 

133 F.3d 1459 (Fed. Cir. 1998) ............................................................................................ 5, 14 

Process Control Corp. v. HydReclaim Corp., 

190 F.3d 1350 (Fed. Cir. 1999) .................................................................................................. 5 

Statutes

35 U.S.C. § 112 ...................................................................................................................... passim 

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I. INTRODUCTION AND SUMMARY OF ARGUMENTS 

In Defendant Nine Energy, Inc.’s (“Nine”) opening claim construction brief, Nine 

demonstrated that many of the terms are indefinite, and that the well-established principles of claim 

construction lead to the constructions proposed by Nine. Unable to respond directly, Plaintiff NCS 

Multistage Inc. (“NCS”) instead offers the Court a variety of baseless and indefensible approaches 

to claim construction in an effort to save its case, relying heavily on expert testimony to recast or 

redraft its claims. But NCS’s expert takes positions inconsistent with basic patent law. For 

example, he alleges that a single term “internal diameter” should mean two different things in the 

same claim. See infra, at Section II.A. Similarly, he asks the court to construe a “rupturing force” 

to sometimes mean a hydraulic pressure (infra, at Section II.E), but other times means either a 

hydraulic pressure or an impact force (infra, at Section II.F). Further, he admits that his 

construction of “attached” finds its grounding not in intrinsic or extrinsic evidence, but merely 

from this dispute between the parties. Infra, at Section II.B.2. 

But the Court need not accept NCS’s expert’s testimony, as his limited experience in the 

field of well construction or casing flotation provides little foundation for it. He has no formal 

training in petroleum engineering (Ex. 3 (“Rodgers Dep.”), at 17:15-17), has never worked on or 

with flotation plugs (Id., at 22:17-20), with any other downhole tool intended for flotation in 

horizontal wellbores (Id., at 22:18-21), or with any device with a rupture disc intended for blocking 

the flow of drilling fluid through a downhole tool (Id., at 41:1-4). Indeed, he may not even qualify 

as a person having ordinary skill in the art (“POSA”) of the ’445 Patent. 

In contrast, for the reasons in Nine’s opening brief, and those that follow, Nine has 

proposed reasonable constructions grounded in the language of the claims, as informed by the 

perspective of a POSA, in view of the specification, and should therefore be adopted by the Court. 

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II. DISPUTED CLAIM TERMS 

A. “internal diameter” (Claims 1, 22, 28, and 50) 

Defendant Nine’s Construction Plaintiff NCS’s Construction 

the diameter of a fluid channel measured 

perpendicularly from the inner wall of the 

fluid channel through the center of the casing 

string, to the opposite inner wall 

No construction 

NCS’s proposal not to construe “internal diameter” must be rejected. It is irreconcilable 

with its expert’s testimony that the term has two meanings, even within the same claim. Ex. 3, at 

67:3-9. While absent from its construction, NCS takes the untenable position that “internal 

diameter” usually refers to a diameter (the “Diameter Definition”), but that it “can” mean a 

sidewall in the petroleum industry (the “Sidewall Definition”), but only sometimes, and that it 

need not be construed because a POSA would be able to decipher when the two meanings should 

be used. NCS Opening Brief (“NCS Br.”) (Dkt. 41), at 4-5. But even if that were viable logic, 

which it is not, it fails as a matter of law. Constructions are not for POSAs, they are for lay juries, 

and claiming that a POSA could tell the difference provides no clear guidance to the jury. See 

AFG Indust., Inc. v. Cardinal IG Co., Inc., 239 F.3d 1239, 1247 (Fed. Cir. 2001) (“claim 

construction becomes the basis of jury instructions”); Control Res. v. Delta Elecs., 133 F. Supp. 

2d 121, 127 (D. Mass 2001) (“claim construction must result in a phraseology that can be taught 

to a jury of lay people. It is not enough simply to construe the claims so that one skilled in the art 

will have a definitive meaning.”). To the extent that NCS believes there is an industry-specific 

definition of “internal diameter,” it should clearly identify it, support it with extrinsic evidence, 

and incorporate it into a proposed construction. 

Even still, NCS is wrong. NCS has not and cannot show that the Sidewall Definition is a 

“well-established meaning in the relevant industry,” as required to depart from the plain and 

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ordinary meaning of the term. Azure Networks, LLC v. CSR P.L.C., 771 F.3d 1336, 1347-48 (Fed. 

Cir. 2014), rev’d on other grounds, 575 U.S. 959 (2015). NCS has presented neither technical 

dictionaries nor trade publications that identify this Sidewall Definition, nor can NCS’s expert 

think of any. Ex. 3, at 67:18-68:10. In contrast, Nine’s expert conducted an informal survey of 

the petroleum engineering literature to identify whether the term “internal diameter” or its 

synonyms are used to refer to a sidewall, and found little evidence to support the Sidewall 

Definition. Ex. 1, at ¶¶16-18. In 49 of 50 papers reviewed, the term “internal diameter” or “inside 

diameter” clearly referred to the Diameter Definition. Id. In only one paper was the term “inside 

diameter” used in a manner that could be understood according to the Sidewall Definition. Id. 

Even if both the Diameter Definition and the Sidewall Definition were recognizable to a 

POSA, NCS and its expert cannot themselves agree on when those dueling definitions are used, 

calling into question whether a POSA really could tell the difference. NCS’s brief alleges that the 

term “internal diameter” refers to a sidewall at numerous points in the specification, including at 

1:47-49, 2:40-44, and 7:3-10. NCS Br., at 5. But its expert testified that either the Diameter 

Definition or the Sidewall Definition work equally as well in 1:47-49 (Ex. 3, at 44:7-46:6) and in 

2:40-44 (Ex. 3, at 46:17-47:4), and that only the Diameter Definition is used at 7:3-10 (Ex. 3, at 

48:24-49:8). NCS’s expert himself cannot consistently identify where the Sidewall Definition or 

the Diameter Definition is used. In his declaration, he claims that standard industry casing 

specifications support a Sidewall Definition (NCS Br., Ex. 1 (“Rodgers Dec.”), at ¶42), but he later 

testified that the same document clearly uses the Diameter Definition (Ex. 3, at 61:16-64:5). Far 

more troublesome, Dr. Rodgers testified that the Diameter Definition and the Sidewall Definition 

are both present in the claims of the ’445 Patent. Ex. 3, at 67:3-9. Simply put, NCS’s position is 

deeply confusing, and would prove indecipherable to a jury. 

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NCS’s proposal not to construe this term is a proposal to cast the jury adrift. But the jury 

need not be lost at sea. An internal diameter simply refers to a measured diameter, and Nine’s 

construction clearly explains that for the jury. See Nine Opening Brief (“Nine Br.”) (Dkt. 42), at 

5-7. 

B. “the region of the tubular member where the rupture disc is attached has a 

larger internal diameter than the internal diameter of the casing string and is 

parallel to the internal diameter of the casing string” (Claims 1, 22, 28, and 50) 

Defendant Nine’s Construction Plaintiff NCS’s Construction 

Term is indefinite under 35 U.S.C. § 112 

Proposed Alternative – a flat surface of the 

tubular member where the rupture disc is 

fastened, affixed, joined, or connected to the 

tubular member is circular and has a diameter 

larger than the internal diameter of the casing 

string, and defines a plane that is parallel to a 

plane defined by the set of internal diameters 

at a location in the casing string 

In the region of the tubular member, the 

rupture disc is directly secured to and in 

sealing engagement with a cylindrical surface 

that is wider than and parallel to the inner 

surface of the casing string 

NCS’s proposed construction attempts to re-write this limitation in a misguided effort to 

support its infringement theory, but it arises purely from NCS’s imagination, and not from 

principles of claim construction. As shown below, NCS’s proposed construction should be 

rejected, and the limitation found to be indefinite. To the extent the Court does not find this term 

indefinite, Nine submits that its proposed alternative construction makes better sense of this term 

in view of the intrinsic evidence, and should be adopted over NCS’s proposed construction. 

1. This Limitation Is Indefinite 

Even under NCS’s understanding of this term, it is indefinite because that understanding 

requires that claim terms change meaning even within this single limitation. NCS’s expert was 

clear that the phrase “the internal diameter of the casing string” must have multiple meanings 

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within the claim for the claim to make sense. Ex. 3, at 67:3-9. But the phrase “the internal diameter 

of the casing string” appears twice in this limitation, and finds its antecedent basis in the preamble, 

which recites “the casing string having an internal diameter.” As all three phrases refer to the same 

feature, it makes no sense for these phrases to change meanings. See Epcon Gas Sys., Inc. v. Bauer 

Compressors, Inc., 279 F.3d 1022, 1030-31 (Fed. Cir. 2002) (“‘a word or phrase used consistently

throughout a claim should be interpreted consistently’” (alteration in original) (quoting

Phonometrics, Inc. v. N. Telecom, Inc., 133 F.3d 1459, 1466 (Fed. Cir. 1998))). 

But NCS’s expert testified that the first use of “the internal diameter of the casing string,” 

must refer to the diameter of the casing string, because it is compared to the size of the internal 

diameter of the casing string. Ex. 3, at 58:3-8. In contrast, the second use of “the internal diameter 

of the casing string” must refer to the sidewall. Id., at 60:6-21. NCS’s expert repeatedly testified 

that the first use refers to the Diameter Definition. Id, at 58:3-8, 145:21-146:8; 147:24-148:6. 

Further, NCS’s expert believed “it doesn’t make any sense” to apply the Diameter Definition to 

the second use of the phrase “the internal diameter of the casing string.” Id., at 148:16-23. Perhaps 

the more logical explanation is that, even if the term “internal diameter” has multiple definitions, 

this limitation is indefinite because there is no consistent meaning of the phrase “the internal 

diameter of the casing string” that makes this claim understandable. Process Control Corp. v. 

HydReclaim Corp., 190 F.3d 1350, 1357 (Fed. Cir. 1999) (the same terms in the same claim must 

be given the same definition even if it results in a nonsensical interpretation of the claim that 

renders the claim inoperable, and thus invalid) 1

1

 To the extent that NCS relies on pre-Nautilus I caselaw that permits varying interpretations of 

terms to preserve validity under the “insolubly ambiguous” or “amenable to construction” 

standards expressly rejected by the Supreme Court in Nautilus I,, 572 U.S. at 910, such authority 

should be disregarded. See, e.g., Microprocessor Enhancement Corp. v. Texas Instruments, Inc., 

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But NCS’s expert is wrong. A POSA would not presume that an “internal diameter” can 

refer to a sidewall. See supra, at Section II.A. Further, as presented in the paragraphs that follow, 

this limitation is amenable to construction, in the alternative, only if “internal diameter” 

consistently refers to a diameter throughout. But that is not the standard for definiteness. Nautilus, 

Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910 (2014) (“Nautilus I”) (a POSA must understand 

the claims with “reasonable certainty”). While Nine respectfully submits that its proposed 

construction is more consistent with the intrinsic evidence, neither construction offered by the 

parties flows naturally and simply from the claim language, and thus a POSA cannot know with 

“reasonable certainty” what is meant by the claims. 

Nonetheless, the Court need not fully agree with Nine. To the extent that the evidence 

between Nine and NCS’s constructions appear inconclusive, the Court need not pick one or the 

other. Such an indeterminate record has a single clear conclusion – that the term is indefinite. 

2. NCS’s Proposed Construction Ignores the Claim Language 

NCS’s flawed analysis is laid bare in that its argument begins not with the claim language, 

but with a discussion of “an important aspect of the invention,” and then moves immediately to 

the specification and prosecution history. NCS Br., at 10. But it is the claims, and not the 

specification or prosecution history, that define the scope of the patent. Phillips v. AWH Corp. ̧415 

F.3d 1303, 1312 (Fed. Cir. 2005) (“‘[t]he written description part of the specification does not 

delimit the right to exclude. That is the function and purpose of the claims.’” (quoting Markman 

v. Westview Instr., Inc., 52 F.3d 967, 980 (Fed. Cir. 1995))). NCS’s failure to grapple with the 

claim language is a tacit admission of its indefiniteness. 

520 F.3d 1367, 1376 (Fed. Cir. 2008) (“we note that a claim that is amenable to construction is 

not invalid on the ground of indefiniteness” (citation and internal quotations omitted)). 

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Rather than analyze the claim language, NCS attempts to redraft that language by 

substituting the term “attached” with “directly secured to and in sealing engagement with.” As 

admitted by its own expert, this construction does not flow from the claims, or even the 

specification, but solely because the parties dispute the meaning of the term. Ex. 3, at 138:19-

139:9. Indeed, NCS’s expert brought NCS’s infringement contentions and Nine’s engineering 

drawings describing the accused device to his deposition, suggesting that infringement 

considerations, and not intrinsic evidence, guided that conclusion. Ex. 3, at 11:5-20; NeoMagic 

Corp. v. Trident Microsystems, Inc., 287 F.3d 1062, 1074 (Fed. Cir. 2002) (“It is well settled that 

claims may not be construed by reference to the accused device.”). Nor has NCS provided any 

argument that the patentee had redefined the term “attached” to refer to anything other than its 

plain and ordinary meaning. GE Lighting Solutions, LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 

(Fed. Cir. 2014) (either lexicography or disavowal is necessary to depart from the ordinary 

meaning of a claim term). Accordingly, “attached” should carry its plain and ordinary meaning – 

“fastened, affixed, joined, or connected to.” Nine Br., Ex. 6, at 80. 

NCS also fails to analyze the claim language because doing so would expose the 

inconsistency with which they construe the term “internal diameter,” as discussed supra, at Section 

II.A. Further, nothing in the claims even suggest a Sidewall Definition of “internal diameter.” 

Even in the preamble, the claim recites “the casing string having an internal diameter that defines 

a fluid passageway,” which refers to the Diameter Definition. As admitted by NCS’s expert, 

internal diameters frequently define the fluid passageway through casing strings, including in 

standard industry listings of casing dimensions. Ex. 3, at 61:16-64:5. Put another way, this use in 

the preamble is fully consistent with the Diameter Definition, and does not presuppose any other 

definition. Ex. 1, at ¶19. 

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3. NCS’s Proposed Construction Is Geometrically Impossible 

Core to the parties dispute is the limitation that the Attachment Region is “parallel to the 

internal diameter of the casing string.” Nine Br., at 12-16 (defining “Attachment Region” as “the 

region of the tubular member where the rupture disc is fastened, affixed, joined, or connected”); 

NCS Br., at 10-15. This limitation has no textual support in the specification, which never uses 

the term “parallel.” Ex. 3, at 149:24-150:7; Ex. 1, at ¶35. Even the amendment that added this 

limitation cited only Figure 2 for support. Nine Br., Ex. 4, at 11. Thus, a POSA must guess at 

what is meant by this limitation. Ex. 1, at ¶36 . 

Nine’s analysis begins with the most clearly identifiable term – the “internal diameter of 

the casing string” – converts it to a geometric feature against which another feature could be 

considered “parallel” (a plane defined by the set of measured internal diameters at a location in the 

casing string or an “Internal Diameter Plane”), and then looks for an Attachment Region that is 

parallel. Such a feature is identifiable in Figure 2, a point acknowledged by NCS’s expert, as the 

circumferential aperture 39 of the shear ring on which the rupture disc sits. See Ex. 3, at 158:16-

160:19; Ex. 4, Figure 2 (Dr. Rodger’s annotation of Figure 2 from the ’445 Patent). While plain 

in 2-dimensions, Nine’s construction merely translates that internal diameter from a cross-section 

into a three-dimensional feature – the Internal Diameter Plane, which is expressly recited in Nine’s 

proposed alternative construction. Nine Br., Ex. 1, at ¶¶95-97. 

NCS’s flawed analysis starts with the Attachment Region, which NCS appears to assume 

is the same region referred to in the phrase “in sealing engagement with a region of the tubular 

member” (the “Sealing Region”). But each phrase refers to “a region,” rather than referring back 

to “the region.” In such a situation, canons of claim construction do not presuppose a form of nonliteral antecedent basis, but instead presume that different terms in a claim have different meanings. 

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Chicago Bd. Options Exchange, Inc. v. Int’l Securities Exch. LLC, 677 F.3d 1361, 1369 (Fed. Cir. 

2012). Indeed, a POSA reading the ’445 Patent could reasonably assume that the Attachment 

Region was not the same region of the tubular member “in sealing engagement with” the rupture 

disc. The ’445 Patent repeatedly describes that the rupture disc is “seated” on the “tabs” of the 

“shear ring.” Nine Br., Ex. 2, at 8:48-50; 9:39-42; 9:67; 10:22-24; 10:41-43. This feature is core 

to the ’445 Patent, which describes that fluid pressure “on a securing mechanism hold[s] the 

rupture disc in place,” and the alleged inventive feature of the ’445 Patent is the fact that this 

attachment can be released. Nine Br., Ex. 2, at 6:29-30, 9:63-10:6. The example securing 

mechanism is the shear tabs of the shear ring. Id., at 9:67. 

Even if NCS was correct that the Attachment Region and the Sealing Region refer to the 

same feature, its proposed construction is still flawed. If NCS is correct that a sidewall is a possible 

meaning of “internal diameter,” a POSA must still make geometric inferences to arrive at features 

that could be described as “parallel.” Ex. 1, ¶¶36-37. Put another way, it is not enough for NCS 

to identify two parallel lines depicting sidewalls in a cross-section, such as Figure 2, because those 

lines depict a three-dimensional object in any real-world embodiment. Ex. 1, ¶¶36-37. Instead, 

NCS must first show that the sidewalls are cylinders, and that those cylinders have axes, and that 

those axes are parallel. Ex. 1, ¶¶36-37. Only through this flawed analysis can NCS arrive at the 

portion of the construction which requires “a cylindrical surface that is . . . parallel to the inner 

surface of the casing string.” Accordingly, it should be rejected. 

4. NCS’s Proposed Construction Improperly Renders One Instance of 

“Internal Diameter” Mere Surplusage 

NCS’s analysis is further flawed, because under this understanding of the claim language, 

the second occurrence of the phrase “the internal diameter of the casing string” is mere surplusage, 

suggesting an erroneous construction. See Nautilus Grp., Inc. v. Icon Health & Fitness, Inc., 82 

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Fed. Appx. 691, 694 (Fed. Cir. 2003) (Nautilus II). As NCS’s expert explained, its proposed 

construction would also apply to a limitation that wholly omitted the term “internal diameter” and 

merely claimed that “the region where the rupture disc is attached . . . is parallel to the casing 

string.” Ex. 3, at 167:22-168:24. The canon against surplusage applies with special force here, 

where it would mean that the first occurrence of the term “internal diameter of the casing string” 

is not surplusage, but the second occurrence is. This is an unreasonable reading of the claims that 

should be rejected. Nautilus II, 82 Fed. Appx. at 694 (finding error in district court’s claim 

construction that rendered certain terms as “surplusage.”). 

5. The Prosecution History Supports Nine’s Alternative Construction, Not 

NCS’s 

The Response to Notice of Non-Compliance, cited by both parties in support of its 

constructions, supports only Nine’s proposed alternative construction. Nine Br., at 16; NCS Br, at 

12-14. Figure 3 of Gano illustrates a cross-section of a tool where both the surfaces where an Oring 118 seals the plug 102 against the sidewalls of the tool (depicted in red), and where the plug 

102 rests on inwardly facing upper arcuate shoulders 126 (depicted in green) are both sloped 

relative to both the central axis of the tool, and its internal diameter. See Nine Br., Ex. 7, at 8:28-

46. In Figure 2 of the ’445 Patent, rupture disc 30 is sealed to shear ring 44 by O-ring 52 (depicted 

in red), yet the rupture disc 30 is supported and constrained from vertical motion by the 

circumferential aperture 39 of shear ring 44 (depicted in green). In both diagrams, the direction 

of the internal diameter is labeled in blue, and the central axis of the pipe is labeled in yellow: 

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Gano (Nine Br., Ex. 7), at Fig. 3 

(excerpted & annotated) 

’445 Patent (Nine Br., Ex 2), at Fig. 2 

(excerpted & annotated) 

Applicant accurately describes both of these areas in describing that “Gano’s plug 70 and rupture 

disc 102 are in sealing engagement with and attached to a region of the tubular member that is 

not parallel to the internal diameter, but is instead sloped.” Nine Br., Ex. 4, at 12. (emphasis 

added). But applicant did not choose to incorporate both distinctions into the claims, and instead 

solely distinguished Gano on the basis of “the region where the rupture disc is attached.” Id.

Accordingly, applicant amended the claim to recite that the Attachment Region is “parallel to the 

internal diameter of the casing string.” Id. at 2, 12. As shown in Figure 2 of the ’445 Patent, 

that feature is present where the rupture disc is seated in circumferential aperture 39 of shear ring 

44, depicted in green, and which is illustrated as “parallel to the internal diameter of the casing 

string” when shown in cross section. When the cross-sectional drawing is embodied in a threedimensional embodiment, the equivalent to the internal diameter above is the Internal Diameter 

Plane incorporated into Nine’s proposed alternative construction. See Nine Br., at 13-17. 

6. NCS’s Objections to Nine’s Alternative Construction Are Meritless 

NCS alleges three errors in Nine’s proposed alternative construction, all of which are 

meritless. First, Nine’s alternative construction requires that the Attachment Region be a “flat 

surface” because it needs to be parallel to an Internal Diameter Plane, which is flat, and because it 

corresponds to the circumferential aperture 39 of shear ring 44, which is also flat. And while NCS 

is correct that the term “flat” does not appear in the ’445 Patent, neither does the term “parallel,” 

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much less in describing cylindrical surfaces. Cf. NCS Br., at 14. 

Second, NCS alleges Nine’s construction is erroneous because the specification does not 

describe that the Attachment Region of the disc is “fastened, affixed, joined, or connected to” any 

surface. Id. But that phrase flows from the plain and ordinary meaning of the term “attached,” 

which appears in the claim language. Nine does not dispute that the rupture disc is not disclosed 

as being “attached” to any surface, which suggests that the term is both indefinite and not supported 

by the specification. But further, the rupture disc 30 is also not disclosed as either secured to or in 

sealing engagement with any part of the “tubular member.” 

Third, NCS alleges that Nine’s Internal Diameter Plane is somehow confusing. NCS Br., 

at 14-15. But the Internal Diameter Plane is merely a translation into three dimensions of a an 

internal diameter drawn on a two-dimensional cross section drawing, such as the circumferential 

aperture 39 of shear ring 44 in Figure 2 of the ’445 Patent. See Nine Br., at 13-16. 

C. “tubular member” (Claims 1, 22, 28, and 50) 

Defendant Nine’s Construction Plaintiff NCS’s Construction 

An upper tubular member, and a lower 

tubular member coupled with the upper 

tubular member. 

No construction. 

Nine’s construction incorporates the clearly implied definition of the term “tubular 

member,” as identified by NCS’s own expert. Ex. 3, at 76:1-77:12. At his deposition, he was 

asked to look for any definition of the term “tubular member.” Id. at 76:7-17. When asked to 

identify the use of the term “tubular member” in the specification, he identified 7:31-38 as such a 

definition, which reads: 

The rupture disc assembly 10 may consist of an upper tubular member 16 defining 

an upper fluid passageway 12 through its interior, coupled to a lower tubular 

member 18 defining a lower fluid passage way through its interior, and a rupture 

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disc 30 sealingly engaged between upper tubular member 16 and lower tubular 

member 18. 

Nine Br., Ex. 2, at 7:31-38; Ex. 3, at 76:20-77:3. This experiment confirms that NCS’s own expert 

would readily identify Nine’s proposed construction as the “tubular member” referred to in the 

claims. Further, the passage identified by Dr. Rodgers is substantially the same as the ’445 Patent, 

at 2:49-54, which forms the basis of Nine’s proposed construction. See Nine Br., at 7-8. NCS’s 

expert further confirmed that there were no embodiments in the ’445 Patent that disclose a float 

tool that does not have an upper and lower tubular member. Ex. 3, at 79:2-81:25. Accordingly, 

Nine’s proposed construction should be adopted. 

NCS’s arguments regarding the term “tubular member” should be disregarded as plainly 

inconsistent with the specification. NCS alleges that the ’445 Patent discloses embodiments with 

“one or more tubulars,” thereby indicating that a single “tubular member” could be used. NCS 

Br., at 5 (citing NCS Br., Ex. A, at 6:66-7:3, 7:17-21). But the cited sections do not refer to the 

claimed “float tool,” but to tubulars that make up a “casing string,” making the section irrelevant 

to the understanding of the term “tubular member.” See Ex. 3, at 73:11-74:8. Thus, NCS’s 

proposal not to construe the term “tubular member” should be rejected. 

D. “sealing engagement” (Claims 1, 22, 28, 50, and 55) 

Defendant Nine’s Construction Plaintiff NCS’s Construction 

attached or secured to create a fluid-tight seal a substantially fluid-tight seal 

NCS’s proposed construction should be rejected because it renders the term “engagement” 

mere surplusage, and imports a concept of “substantial” fluid tightness that does not appear in the 

claims or the specification. Nautilus II, 82 Fed. Appx. at 694. 

First, NCS’s proposed construction fails to incorporate any concept of “engagement.” 

Instead, “engagement” has an ordinary meaning that requires being “attached” or “secured.” See 

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Ex. 3, at 83:4-84:1. Nine’s proposed construction gives effect to the word “engagement” in the 

claim term. Nonetheless, such an understanding does not prohibit two components that are in 

“sealing engagement” from moving relative to one another. Ex. 3, at 84:22-85:2. For example, a 

piston moving in a bore remains in sealing engagement with the bore throughout its motion. 

Rodgers Dec., at ¶37. 

Second, the term “substantially” finds no support in the claims or specification of the ’445 

Patent, as admitted by NCS’s expert. Ex. 3, at 90:21-91:13. Instead, the term is imported by NCS 

into the claim because a POSA allegedly understands that seals are not perfect. NCS Br., at 6. But 

a POSA also recognizes that an imperfect seal is thus not “fluid-tight.” Ex. 1, at ¶24. It is improper 

as a matter of law to import into the claims additional limitations drawn solely from the knowledge 

of a POSA, and NCS has not argued that a POSA would understand the term “sealing” or “sealing 

engagement” to expressly include substantially fluid-tight seals. Instead, to the extent that NCS 

believes that a substantially fluid-tight seal performs the same function, in the same way, to obtain 

the same result as a “fluid-tight seal,” it would need to allege infringement under the Doctrine of 

Equivalents, which it has failed to do. 

E. “the rupture disc is . . . configured to rupture when exposed to a rupturing 

force greater than the rupture burst pressure” (Claims 1, 22, 29, and 56) 

Defendant Nine’s Construction Plaintiff NCS’s Construction 

Term is indefinite under 35 U.S.C. § 112 

Proposed Alternative – the rupture disc will 

rupture when exposed to a rupturing 

hydraulic pressure greater than the rupture 

burst pressure 

the rupture disc can rupture if exposed to 

hydraulic pressure that is higher than its 

rupture burst pressure 

NCS’s proposed construction should be rejected, because it requires that the term 

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“rupturing force” have different meanings in different terms, violating the general principle that 

identical terms should generally be given a single meaning. See Epcon, 279 F.3d at 1030-31 (“a 

word or phrase used consistently throughout a claim should be interpreted consistently” (alteration 

in original) (quoting Phonometrics, 133 F.3d at 1456)). While NCS argues that the term “rupturing 

force” includes impact forces, it now wholly omits them from its proposed construction. 

Further, to the extent that “rupturing force” is construed to include impact forces, an impact 

force cannot be compared to a rupture burst pressure. Ex. 1, at ¶31. The “rupture burst pressure” 

is a rating of a rupture disc and is a fixed value referring to a constant gauge pressure across the 

entire rupture disc. Id. A POSA would not know how to convert an “impact force” into a figure 

that can be compared to the rupture burst pressure, because such an “impact force” may be 

distributed over a smaller part of the rupture disc, or combined with a gauge pressure across the 

rupture disc. Id. Even though a pressure may be convertible to a force, converting the rupture 

burst pressure of a rupture disc to a rupture force would provide a POSA no meaningful 

information about when the rupture disc would fail relative to an impact force. Id.

NCS’s expert admitted as much. After describing a potential experiment to measure impact 

forces, he concluded that “a measure of rupture burst pressure would only tell me if it’s going to 

fail . . . by pressure alone. It’s not going to tell me anything about whether it would fail by 

contact forces.” Ex. 3, at 97:11-98:9 (emphasis added). Put another way, if rupturing force 

includes impact forces, a POSA would be left to guess how to compare that impact force to the 

rupture burst pressure of a rupture disc. Therefore, this limitation is invalid. 

F. “rupturing force” (Claims 1, 22, 27, 29, 56, and 57) 

Defendant Nine’s Construction Plaintiff NCS’s Construction 

Term is indefinite under 35 U.S.C. § 112 a hydraulic pressure or impact force sufficient 

to rupture the rupture disc 

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Defendant Nine’s Construction Plaintiff NCS’s Construction 

Proposed Alternative – rupturing hydraulic 

pressure 

This claim term is indefinite, for the reasons discussed in Section II.E above, and for the 

reasons provided in Nine’s Opening Brief. See Nine Br., at 9-11. NCS’s proposed construction 

should be rejected, as it finds no support in the claims or specification, and conflicts with NCS’s 

proposed construction of another term that uses the term “rupturing force.” Simply put, the term 

“rupturing force” is used a single time in the specification, and there, only describes “hydraulic 

pressure” as a possible rupturing force. Nine Br., Ex. 2, at 2:1-8. 

Further, an “impact force,” is never described as a “rupturing force” in the specification. 

The relevant section of the specification states that a rupture disc “can be ruptured by engagement 

with an impact surface of a tubular once a rupturing force is applied to the disc, such as by 

hydraulic fluid under pressure.” Id. 2:6-8. In this sole example of a “rupturing force” in the 

specification, the “rupturing force” is identified as hydraulic pressure, which causes an impact on 

a surface which causes the rupture disc to fail. Put another way, hydraulic pressure and impact 

forces are not alternatives, but two very different parts of a multi-step process. The term “rupturing 

force” thus identifies the cause, the only example of which is “hydraulic pressure.” 

This understanding does not “read out” any embodiments of the ’445 Patent, as NCS claims 

(NCS Br., at 8), but rather identifies that the “rupturing force” is a rupturing hydraulic pressure. 

This is present in all embodiments of the ’445 Patent, all of which initiate the failure process 

through the application of a rupturing hydraulic pressure – including embodiments where the 

rupture disc ultimately fails as a result impact on a surface. 

Instead, NCS’s position reads in to the term “rupturing force” the multi-step process that 

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involves the rupture disc impacting a surface. That is, a POSA reading the claims will not presume 

from the term “rupturing force” that what is intended is a two-step process that involves first a 

rupturing force, and then an impact on a surface, but merely that a force is initially applied that 

will result in a failure of the rupture disc – no matter the mechanism or process of such failure. 

Further, NCS’s position here is inconsistent with the construction of the term discussed in 

Section II.E above. There, NCS wholly omits “impact force” from its construction of the 

subsequent term that includes the term “rupturing force.” Nine anticipates that NCS will argue 

that the term “rupturing force” as used in claims 27 and 57 can refer to an impact force because it 

is not expressly compared to a rupture burst pressure, but not in Claims 1, 22, 29, and 56, because 

it is compared to a rupture burst pressure. But NCS expressly identified the term “rupturing force” 

for construction as present in claims 1, 22, 29, and 56. NCS is asking the Court to give the exact 

same claim term multiple meanings, absent clear support for such meanings. Such an argument 

should be rejected. In re Varma, 816 F.3d 1352, 1363 (Fed. Cir. 2016) (“the principle that the 

same phrase in different claims of the same patent should have the same meaning is a strong one, 

overcome only if it is clear that the same phrase has different meanings in different claims”). 

Nonetheless, this term is indefinite, because it carries the same meaning as when used in 

the term described in Section II.E above, where it is compared to a “rupture burst pressure.” 

G. “specific gravity . . . of the well fluid” (Claims 24 and 52) 

Defendant Nine’s Construction Plaintiff NCS’s Construction 

Term is indefinite under 35 U.S.C. § 112 No Construction 

This term is indefinite because it presupposes a false concept—that well fluid has a 

constant specific gravity through the depth of the well. Ex. 1, at ¶39. It is well understood by 

POSAs that the density, and thus the specific gravity, of well fluid changes with depth due to 

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changes in pressure and temperature, as admitted by both parties’ experts and confirmed by 

extrinsic evidence in the field. See Ex. 3, 111:16-114:1; Ex. 1, at ¶39; see generally Nine Br., Ex. 

12. Accordingly, the term is indefinite, because it describes a feature that cannot exist. 

Even if the term is not indefinite, NCS’s proposal to not construe the term should be 

rejected. NCS expressly expects, indeed invites, expert testimony at trial regarding the meaning 

of the term “specific gravity of the well fluid.” NCS Br., at 15 (“experts can easily explain it to 

the jury.”). But it is the exclusive province of the court – not the experts – to explain to the jury 

the meaning of claim terms. Every Penny Counts, Inc. v. Am. Express Co., 563 F.3d 1378, 1383 

(Fed. Cir. 2009) (“the court’s obligation is to ensure that questions of the scope of the patent claims 

are not left to the jury.”). Because NCS has proposed no construction, nor argues for any apparent 

meaning of the term that accounts for the variation of density with temperature and pressure, Nine 

respectfully requests that the Court find that this term is indefinite. 

H. “disengage the rupture disc from sealing engagement” (Claim 55) 

Defendant Nine’s Construction Plaintiff NCS’s Construction 

disengage the rupture disc from being 

attached or secured to create a fluid-tight seal 

Before rupturing, move the rupture disc 

relative to the region 

NCS’s proposed construction should be rejected because the specification does not tie 

sealing engagement to movement. Instead, Nine’s proposed construction should be adopted, as 

this term does not add anything to the term “sealing engagement” beyond the plain and ordinary 

meaning of the term “disengage.” 

1. NCS’s Proposed Construction Should Be Rejected 

NCS’s construction should be rejected because movement alone is neither sufficient nor 

necessary for a rupture disc to be “disengage[d] . . . from sealing engagement.” First, movement 

alone is not sufficient for the rupture disc to be “disengage[d] . . . from sealing engagement.” As 

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described by NCS, the ’445 Patent describes that the rupture disc should not lose its seal with the 

tubular member in order for the invention to be operable. NCS Br., at 19-20. In other words, NCS 

argues that the ’445 Patent teaches that a rupture disc, when released, acts as a piston in a bore, 

and maintains its seal with the bore while accelerating. Id.; Rodgers Dec., at ¶37. Both parties 

experts agree that such motion maintains sealing engagement. Ex. 3, at 84:22-85:2; Ex. 1, at ¶41. 

Second, movement alone is not sufficient for the rupture disc to be “disengage[d] . . . from 

sealing engagement.” Instead, a rupture disc could be so disengaged simply by rupturing, which 

would cause the seal between the upper and lower ends of the tubular member to be un-sealed. 

Both parties experts also agree on this point. Ex. 3, at 126:4-12; Ex. 1, at ¶41. 

Third, there is no support in the intrinsic evidence for construing “disengage” to refer to 

movement alone. Instead, NCS attempts to use the word “disengage” to import embodiments from 

the specification into the claim. NCS Br., 16-18. But NCS has not, and cannot, identify anywhere 

in the specification where the term “disengage” was expressly redefined to recite the features NCS 

now proposes. Accordingly, NCS’s construction should be rejected. 

2. NCS Has Failed to Rebut Nine’s Proposed Construction 

NCS’s arguments against Nine’s proposed construction are similarly unavailing. NCS 

makes three arguments. First, NCS again disputes Nine’s proposed construction for “sealing 

engagement,” which should be rejected for the same reasons described in Section II.D above. 

Second, NCS argues an unreasonable reading of Claim 50 and 55 together that ignores its 

own construction for “sealing engagement,” and assumes without reason that being in sealing 

engagement with a “region” precludes movement where the rupture disc is in sealing engagement. 

However, both parties’ experts agree that sealing engagement can be maintained in motion, and 

the ’445 Patent requires that the seal be maintained. Ex. 3, at 84:22-85:2; Ex. 1, at ¶41. 

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Third, NCS argues that Nine’s construction excludes embodiments. See NCS Br., at 19-

20. To the contrary, there is nothing in the construed limitation that excludes the embodiments 

described in NCS’s Opening Brief. Instead, the “disengagement” occurs either when the rupture 

disc is shattered by impact with the tubular member, or ruptured by hydraulic pressure alone. 

I. “rupture disc is configured to disengage from sealing engagement when 

exposed to a pressure greater than a hydraulic pressure in the casing string” 

(Claims 28 and 50) 

Defendant Nine’s Construction Plaintiff NCS’s Construction 

Term is indefinite under 35 U.S.C. § 112 the rupture disc, before rupturing, can move 

relative to the region when exposed to a 

pressure that is greater than a hydrostatic 

pressure in the casing string (i.e. a 

disengaging pressure) 

NCS’s proposed construction should be rejected for substantially the same reasons as 

described in Section II.H above, because NCS’s proposed construction of this term again 

improperly presupposes that “movement” is both necessary and sufficient to describe 

disengagement. NCS’s proposed construction should also be rejected because it includes 

inappropriate commentary from NCS, identifying a new concept of a “disengaging pressure,” 

which does not appear in the claims, specification, and is not a term generally used in the field of 

the alleged invention of the ’445 Patent. 

However, this claim term is further indefinite because it requires a configuration of the 

rupture disc to provide the described features. Nine Br., Ex. 1, at ¶113. NCS has failed to identify 

any feature of the rupture disc as satisfying these limitations. See NCS Br., at 16-18. Indeed, its 

proposed construction requires movement following exposure to a certain pressure, but this feature 

is provided by the shear ring, not the rupture disc. See Nine Br., Ex. 2, at 8:48-50, 8:67-9:4; Nine 

Br., Ex. 1, ¶115. Accordingly, this claim limitation is indefinite. 

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III. CONCLUSION 

For the foregoing reasons, Nine respectfully requests that the Court find certain of the 

foregoing terms indefinite and adopt Nine’s proposed constructions. 

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Dated: November 20, 2020 Respectfully submitted, 

VINSON & ELKINS LLP 

By: /s/ Hilary L. Preston

Hilary L. Preston 

Texas Bar No. 24062946 

hpreston@velaw.com 

VINSON & ELKINS L.L.P. 

2801 Via Fortuna, Suite 100 

Austin, TX 78746 

Telephone: +1.512.542.8400 

Fax: +1.512.542.8612 

Parker D. Hancock 

Texas Bar No. 24108256 

phancock@velaw.com 

Sean P. Belding 

Texas Bar No. 24109634 

sbelding@velaw.com 

VINSON & ELKINS L.L.P. 

1001 Fannin Street, Suite 2500 

Houston, TX 77002-6760 

Telephone: +1.713.758.2222 

Fax: +1.713.758.2346 

Attorneys for Defendant Nine Energy 

Service, Inc. 

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CERTIFICATE OF SERVICE 

I hereby certify that on the 20th day of November, 2020, a true and correct copy of the 

foregoing document was served on all counsel of record via the Court’s CM/ECF system per Local 

Rule CV-5(b)(1). 

/s/ Hilary L. Preston 

Hilary L. Preston 

US 7504222

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