Enerpol, LLC v. Schlumberger Tech. Corp., 2019-1079

• Decision Date: 31 March 2020
• Docket Number: 2019-1079,2019-1120
• Parties: ENERPOL, LLC, Plaintiff-Appellant v. SCHLUMBERGER TECHNOLOGY CORPORATION, Defendant-Cross-Appellant
• Court: U.S. Court of Appeals — Federal Circuit

ENERPOL, LLC, Plaintiff-Appellant v. SCHLUMBERGER TECHNOLOGY CORPORATION, Defendant-Cross-Appellant

2019-1079

2019-1120

United States Court of Appeals for the Federal Circuit

March 31, 2020

NOTE: This disposition is nonprecedential.

Appeals from the United States District Court for the Eastern District of Texas in No. 2:17-cv-00394-JRG, Judge J. Rodney Gilstrap.

ROBERT P. COURTNEY, Fish & Richardson P.C., Minneapolis, MN, argued for plaintiff-appellant. Also represented by MATHIAS WETZSTEIN SAMUEL; BETHANY MIHALIK, Washington, DC; LEONARD DAVIS, Dallas, TX; NITIKA GUPTA FIORELLA, Wilmington, DE.

MAXIMILIAN A. GRANT, Latham & Watkins LLP, Washington, DC, argued for defendant-cross-appellant. Also represented by GABRIEL BELL, ROBERT J. GAJARSA; GREGORY SOBOLSKI, San Francisco, CA.

Before REYNA, TARANTO, and STOLL, Circuit Judges.

STOLL, Circuit Judge.

These appeals arise from an action for patent infringement. EnerPol, LLC accused Schlumberger Technology Corporation of infringing certain claims of U.S. Patent No. 6,949,491 directed to hydraulic fracturing methods. Following claim construction proceedings, the district court entered a stipulated judgment of noninfringement in favor of Schlumberger. EnerPol challenges the district court's construction of two disputed claim terms on which the judgment is based. Schlumberger cross-appeals, requesting dismissal of EnerPol's appeal for lack of appellate jurisdiction. We conclude that we have jurisdiction over EnerPol's appeal. Because we discern no reversible error in the district court's claim constructions, we affirm the judgment of noninfringement.

BACKGROUND

I

The '491 patent relates to "[h]ydraulic fracturing of wells by injecting a degradable polymer phase as a fracturing fluid." '491 patent, Abstract. Specifically, the patent describes methods "for increasing flow rate of wells by injecting a highly viscous material, which may be a thermoplastic degradable polymer, which may contain proppant particles, into an earth formation surrounding a well." Id. at col. 1 ll. 12-15. "Proppant" particles, such as silica sand, can be added to the fracturing fluid such that after the fluid injection has ceased and fluid retreats back into the wellbore and out of the fracture, these particles "prop" the walls of the facture apart, thus preventing the walls from closing. Id. at col. 1 ll. 30-36, col. 8 ll. 59-60.

Figures 2(a)-(e) "illustrate pellets of degradable polymer with and without proppant and before and after coalescence of the pellets to form a polymer-continuous liquid phase." Id. at col. 4 ll. 20-22. As shown in Figure 2(c), the pellets may contain "proppant 26 dispersed in degradable polymer 24." Id. at col. 8 ll. 57-59. Figure 2(e) "illustrates element 29 of proppant-laden polymer-continuous liquid phase fracturing fluid, formed when polymer 24 in pellets 25 becomes the continuous or external phase and carries proppant 26 along with dispersed carrier fluid 28 into a fracture." Id. at col. 9 ll. 1-5.

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FIG.2a

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FIG.2b

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FIG.2c

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FIG.2d

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FIG.2e

Id. Fig. 2.

Independent claims 1 and 24 recite the two disputed claim terms at issue in these appeals:

1. A well treatment method for treating a formation around a wellbore, the formation having a fracturing pressure, comprising:

(a) transporting a degradable thermoplastic polymer in a solid bulk form down the wellbore;

(b) displacing a polymer-continuous liquid phase comprising the degradable thermoplastic polymer from the wellbore into the formation at a pressure greater than the fracturing pressure of the formation.

. . .

24. A method for hydraulic fracturing of a formation penetrated by a wellbore, comprising:

(a) forming a slurry comprising a degradable thermoplastic polymer in a solid form in a carrier fluid and placing the slurry in the wellbore;

(b) with a displacement fluid having a selected specific gravity, displacing the slurry down the wellbore to a selected location in the wellbore;

(c) converting the slurry to a continuous liquid phase having a specific gravity and comprising the carrier fluid dispersed in the degradable polymer at the selected location in the wellbore; and

(d) applying pressure to the displacement fluid, the selected specific gravity of the displacement fluid being less than the specific gravity of the continuous liquid phase, to inject the continuous liquid phase into the formation to form a hydraulic fracture.

Id. at col. 15 ll. 51-60, col. 17 l. 1-col. 18 l. 7 (emphases added).

II

EnerPol accused Schlumberger of infringing independent claims 1 and 24 of the '491 patent along with dependent claims 2-17, 19, 21-23, and 25.

There are two claim terms at issue on appeal: "polymer-continuous liquid phase" in claim 1 and the claims that depend from claim 1; and "continuous liquid phase" in claim 24 and the claims that depend from claim 24. During claim construction proceedings, EnerPol argued that the term "polymer-continuous liquid phase" in claim 1 should be construed as two terms. Specifically, EnerPol argued that "polymer-continuous" means "comprising an accumulated network of polymer such that one could travel from one side of a given sample to another within the polymer network." J.A. 1233. EnerPol then argued that "liquid phase" means "a phase (e.g. polymer, mixture of polymer and a liquid) that takes the shape of its container." Id. By contrast, Schlumberger argued that "polymer-continuous liquid phase" should be construed as a single term having a plain and ordinary meaning. Schlumberger also argued that, "[f]or clarity, 'polymer-continuous liquid phase' means a polymer that is entirely in liquid form." Id.

The district court agreed with Schlumberger that, based on the claim language and specification, the term "'polymer-continuous liquid phase' should be construed as a single phrase." EnerPol, LLC v. Schlumberger Tech. Corp., No. 17-394, 2018 WL 1335191, at *6 (E.D. Tex. Mar. 15, 2018) (Decision). "[T]o efficiently address the Parties' arguments," however, the district court then discussed the "polymer-continuous" and "liquid phase" components of the disputed claim term separately. Id. at *6-9.

First, the district court determined that based on the intrinsic evidence, "'polymer-continuous' requires the polymer to be 'greater than fifty percent (50%) by volume of the fluid that does the fracturing in the formation.'" Id. at *6. In doing so, the district court rejected EnerPol's "overly broad" construction that included "a fluid with a polymer in any state," and also rejected Schlumberger's "unduly narrow" construction that required the "fluid to be a polymer entirely in a liquid state." Id. Second, the district court determined that "liquid phase" requires that the fracturing fluid include a "minimum amount of polymer in a liquid state, and does not exclude the possibility of a non-liquid component in the fracturing fluid." Id. at *9.

The district court therefore construed "polymer-continuous liquid phase" to mean "polymer in a liquid state that is greater than fifty percent (50%) by volume of the fluid that does the fracturing in the formation." Id.

The district court next noted that the parties had agreed that the term "continuous liquid phase" in claim 24 should have the same meaning as "polymer-continuous liquid phase." Id. at *10. The district court therefore construed "continuous liquid phase" to also mean "polymer in a liquid state that is greater than fifty percent (50%) by volume of the fluid that does the fracturing in the formation." Id. at

Following the district court's claim construction decision, EnerPol moved for entry of final judgment of noninfringement. EnerPol also filed a stipulation of inability to prove infringement and a proposed final judgment. Schlumberger opposed EnerPol's motion and proposed a different stipulation specifying that Schlumberger's accused activities do not infringe the asserted '491 patent claims because they "do not satisfy either aspect of the Court's construction—i.e., neither (i) 'polymer in a liquid state' nor (ii) 'that is greater than fifty percent (50%) by volume of the fluid that does the fracturing in the formation.'" J.A. 2676.

The district court granted EnerPol's motion and adopted, in relevant part, EnerPol's proposed final judgment. Paragraph 6 of the final judgment provides:

6. . . . [I]t is stipulated by [EnerPol] that under the Court's construction of "polymer-continuous liquid phase," EnerPol cannot prevail on the issue of infringement of claim 1 of the '491 patent or its dependent claims as to Schlumberger's Accused Services. EnerPol's Infringement Contentions identify the displacing of degradable thermoplastic polymer, such as polylactide resin . . . , as meeting the step of displacing a "polymer-continuous liquid phase" from the wellbore into the formation at a pressure greater than the fracturing pressure of the formation. This displacing does not involve displacing polymer in a liquid state that is greater than fifty percent (50%) by volume of the fluid that does the fracturing in the formation. Therefore, under the Court's Claim Construction Order, EnerPol cannot meet the "polymer-continuous liquid phase" limitation of claim 1 or its dependent claims.

Final Judgment at 2, EnerPol, LLC v. Schlumberger Tech. Corp., No. 17-394, (E.D. Tex. Oct. 5, 2018), ECF No. 124.

Paragraph 7 recites a nearly identical provision, stating, in relevant part, that EnerPol has stipulated that the accused activities "do[] not involve injection of polymer in a liquid state that is greater than fifty percent (50%) by volume of the fluid that does the fracturing in the formation" and, therefore, EnerPol "cannot meet the 'continuous liquid phase' limitation of claim 24 or its dependent claims." Id. at 2-3.

The final judgment does not mention any of the other claim...