Saturday, March 05, 2022

Cameron v. Nitro: everyone loses on appeal to the CAFC of a fracking case

The outcome:

Cameron International Corporation (Cameron) owns U.S. Patent 9,932,800 (’800 patent). In March 2019, Nitro Fluids, L.L.C. (Nitro) filed a petition for inter partes review of claims 1, 3–5, 7, 8, 11–14, 17, and 18, among others. The Patent Trial and Appeal Board (Board) determined that claims 1, 3, 4, 7, 8, and 17 were anticipated by U.S. Patent Publication No. 2009/0114392 (Tolman) and that claim 5 was unpatentable as obvious in view of Tolman and U.S. Patent Publication No. 2009/0194273 (Surjaatmadja). Nitro Fluids, L.L.C. v. Cameron Int’l Corp., IPR2019-00852, 2020 WL 5239811, at *25 (P.T.A.B. Sept. 2, 2020) (Final Written Decision). The Board upheld the patentability of claims 11–14 and 18. Id. Cameron appeals with respect to the claims the Board found to be unpatentable and Nitro cross-appeals with respect to the claims the Board upheld. For the following reasons, we affirm.

Thus, the Board and CAFC concluded claims 11-14 and 18 were patentable, but the others not. The CAFC affirmed the Board. The technology is fracking:

The patented technology relates to infrastructure for hydraulic fracturing. To extract natural gas using hydraulic fracturing, fracturing fluid is pumped into a pre-drilled well at high pressures to “fracture” geological formations that contain natural gas. ’800 patent col. 1 ll. 30–42

Cameron's arguments

Cameron’s appeal presents three main arguments. First, Cameron challenges the Board’s construction of “fracturing manifold,” arguing that the Board should have required that element to “direct fracturing fluid supply to individual wells.” Appellant’s Br. 62. Second, Cameron argues that the Board improperly declined to construe “fracturing tree” as a type of tree “installed specifically for the fracturing process” that can “withstand the highly-abrasive, high-pressure fracturing process.” Id. at 65–66. Third, Cameron argues that Tolman cannot anticipate any of the claims because Tolman does not clearly, specifically, and unambiguously disclose “one and only one rigid fluid pathway.” See, e.g., id. at 36. Cameron contrasts prior art “frac-iron” systems—where multiple fluid lines converge on a fracturing tree—with the patented invention, which replaces the multiple flow paths with one. Id. at 43, 49. Tolman, Cameron argues, must be the former. Id. at 46 (comparing Tolman’s Figure 2 to a prior art “frac-iron” system).

Of the prior art:

We review the Board’s findings regarding the disclosures of prior art references, including whether the prior art sufficiently enables the relevant disclosures, for substantial evidence. Raytheon Techs. Corp. v. Gen. Elec. Co., 993 F.3d 1374, 1380 (Fed Cir. 2021); Polaris Indus., Inc. v. Arctic Cat, Inc., 882 F.3d 1056, 1064 (Fed. Cir. 2018). “A finding is supported by substantial evidence if a reasonable mind might accept the evidence to support the finding.” Genentech, Inc. v. Hospira, Inc., 946 F.3d 1333, 1337 (Fed. Cir. 2020).


Second, we defer to the Board’s factual findings regarding what a reference discloses and whether it is ambiguous. See Wasica Fin. GmbH v. Cont’l Auto. Sys., Inc., 853 F.3d 1272, 1284 (Fed. Cir. 2017) (affirming the Board’s finding that a reference was too ambiguous to anticipate a claim where record evidence supported the conclusion). Here, the Board considered Tolman’s disclosures, contemporaneous references, expert testimony, and attorney argument and concluded that Tolman “clearly shows” a single fluid conduit and discloses that the conduit can be rigid. Final Written Decision, at *12. Based on the record, the Board’s conclusion is reasonable and supported by substantial evidence. Additionally, we similarly reject Cameron’s related enablement argument because prior art published patent applications are presumed enabling and Cameron does not present any evidence or meaningful argument as to why a skilled artisan could not make and use Tolman’s disclosed single-line system. See Impax Lab’ys, Inc. v. Aventis Pharms., Inc., 545 F.3d 1312, 1316 (Fed. Cir. 2008) (reaffirming that an anticipating prior art patent is presumptively enabled); In re Antor Media Corp., 689 F.3d 1282, 1288 (Fed. Cir. 2012) (extending the presumption to printed publications); Apple Inc. v. Corephotonics, Ltd., 861 F. App’x 443, 449 (Fed. Cir. 2021) (“It is well-established that prior art patents and printed publications . . . are presumed enabling.”). We therefore affirm the Board’s decision regarding the disclosures of the Tolman reference, and, by extension, the Board’s finding that Tolman anticipates claims 1, 3, 4, 7, 8, and 17 and, in combination with Surjaatmadja, renders obvious claim 5. Final Written Decision, at *25


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