DCT
2:17-cv-00394
EnerPol LLC v. Schlumberger Technology Corp
Key Events
Complaint
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: EnerPol, LLC (Texas)
- Defendant: Schlumberger Technology Corporation (Texas)
- Plaintiff’s Counsel: Fish & Richardson P.C.
- Case Identification: 2:17-cv-00394, E.D. Tex., 05/05/2017
- Venue Allegations: Venue is alleged to be proper as Defendant is incorporated in Texas, conducts regular business within the Eastern District of Texas, and the causes of action arise from these business contacts.
- Core Dispute: Plaintiff alleges that Defendant’s hydraulic fracturing services infringe a patent related to methods of using degradable thermoplastic polymers to improve well stimulation.
- Technical Context: The technology concerns the use of temporarily solid, degradable polymers in oil and gas wells, which are placed at a target location and then form a high-viscosity phase to create or divert fractures before degrading, thereby enhancing hydrocarbon recovery.
- Key Procedural History: The complaint notes that the patent’s inventor, Dr. Claude E. Cooke, Jr., is a widely recognized innovator in hydraulic fracturing and that Plaintiff has received U.S. Department of Energy grants to test the patented technology.
Case Timeline
| Date | Event |
|---|---|
| 2001-09-26 | ’491 Patent Priority Date |
| 2005-09-27 | ’491 Patent Issue Date |
| 2017-05-05 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 6,949,491 - Method and Materials for Hydraulic Fracturing of Wells
- Patent Identification: U.S. Patent No. 6,949,491, issued September 27, 2005.
The Invention Explained
- Problem Addressed: The patent’s background section describes issues with conventional hydraulic fracturing, including damage to the permeability of the propped fracture caused by residual gelling agents, and difficulty in controlling proppant placement, which can lead to "overflushing" proppant away from the wellbore or "flowback" of proppant out of the fracture upon production (’491 Patent, col. 2:8-28).
- The Patented Solution: The invention proposes a method where a degradable thermoplastic polymer is first transported down a wellbore in a solid form (e.g., as pellets) within a low-viscosity carrier fluid, which minimizes pressure loss during pumping. Once at the desired depth, the solid polymer is converted into a "polymer-continuous liquid phase" that acts as a high-viscosity fracturing fluid. This fluid is then displaced into the formation to create a fracture. The polymer later degrades, ideally leaving a clear path for hydrocarbon flow (’491 Patent, Abstract; col. 6:54-65). Figure 1 of the patent illustrates the placement of this material (52, 54) near wellbore perforations (14) to initiate a new fracture (32) (’491 Patent, Fig. 1).
- Technical Importance: This method provides a way to create highly conductive fractures to bypass near-wellbore damage or to temporarily plug existing fractures for diversion, without the risk of permanent formation damage from the fracturing materials themselves (’491 Patent, col. 2:42-59; col. 4:5-14).
Key Claims at a Glance
- The complaint asserts infringement of one or more claims, including independent claim 1 (Compl. ¶28).
- The essential elements of independent claim 1 are:
- A well treatment method for treating a formation around a wellbore.
- Transporting a degradable thermoplastic polymer in a solid bulk form down the wellbore.
- Displacing a polymer-continuous liquid phase comprising the degradable thermoplastic polymer from the wellbore into the formation at a pressure greater than the formation’s fracturing pressure.
- The complaint notes that additional infringed claims may be disclosed later in the litigation (Compl. ¶23).
III. The Accused Instrumentality
Product Identification
The accused instrumentality is Schlumberger’s “BroadBand Sequence Fracturing Service” and the methods associated with it ("SLB Accused Methods") (Compl. ¶19, ¶24).
Functionality and Market Context
The complaint alleges the BroadBand service is a well treatment method that uses a degradable thermoplastic polymer, such as polylactic acid (PLA), transported down a wellbore in solid form (Compl. ¶25-26). According to the complaint, these solid particles form a "polymer plug" in the wellbore, which constitutes a "polymer-continuous liquid phase" (Compl. ¶27). This plug is then used to divert fracturing fluid to create new fractures in the formation. After the treatment, the polymer plug degrades, which is alleged to increase the total hydrocarbon output of the well (Compl. ¶27). A marketing graphic for the accused BroadBand service highlights that it is an "Engineered stimulation treatment enabled by blending degradable fibers and particles with multimodal size distribution" (Compl. p. 6).
IV. Analysis of Infringement Allegations
’491 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| transporting a degradable thermoplastic polymer in a solid bulk form down the wellbore; | Schlumberger transports a degradable thermoplastic polymer, such as polylactic acid (PLA), down a wellbore. The polymer is in the form of solid particles and fibers of various sizes. | ¶26 | col. 8:64-67 |
| 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. | The polymer particles form a "polymer plug" in the wellbore, which the complaint alleges is a "polymer-continuous liquid phase." Schlumberger displaces this phase into the formation at fracturing pressures to create new fractures. A technical diagram illustrates this functionality with a "composite pill" that "isolates the existing fractures" (Compl. p. 7). | ¶27 | col. 6:61-64 |
Identified Points of Contention
- Scope Questions: A primary question for the court will be whether the accused method of creating a "polymer plug" with a "composite pill" of fibers and particles (Compl. ¶27, p. 7) falls within the scope of the claimed "polymer-continuous liquid phase." The defense may contend that a packed bed of solid fibers and particles is physically distinct from the coalesced liquid phase described in the patent’s embodiments (’491 Patent, col. 9:43-44).
- Technical Questions: Evidence will be needed to determine the actual physical state of the polymer mixture in the accused BroadBand service at the point of injection into the formation. The key factual dispute may center on whether the polymer particles and fibers fuse or coalesce into a viscous liquid, or if they remain as discrete solids forming a permeable plug.
V. Key Claim Terms for Construction
"polymer-continuous liquid phase"
- Context and Importance: This term is central to the infringement analysis. Whether Schlumberger's "polymer plug" (Compl. ¶27) meets this limitation will be a dispositive issue. Practitioners may focus on this term because the accused product appears to use a packed bed of fibers and particles, whereas the patent specification describes pellets coalescing into a viscous liquid.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The claim language itself does not specify how the phase is formed. Plaintiff may argue that any configuration where the polymer component functionally acts as the continuous, dominant element for blocking or diverting flow constitutes a "polymer-continuous" phase.
- Evidence for a Narrower Interpretation: The specification describes pellets that "have coalesced to form a continuous polymer phase" (’491 Patent, col. 9:43-44). Figure 2d is described as a "polymer-phase fracturing fluid, formed when polymer... in pellets... becomes the continuous phase and encloses" a carrier fluid, suggesting the polymer itself becomes a liquid matrix (’491 Patent, col. 8:65-col. 9:2). This could support a narrower definition requiring the polymer to fuse or melt.
"solid bulk form"
- Context and Importance: This term defines the state of the polymer as it is transported down the wellbore. The complaint alleges the accused service uses "degradable fibers and particles" (Compl. p. 6). The construction of "solid bulk form" will determine if this mixture of shapes is covered.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: Plaintiff may argue that the term is general and intended to cover any non-dissolved, solid state of the polymer, distinguishing it from a dissolved polymer used to increase the viscosity of a liquid.
- Evidence for a Narrower Interpretation: The specification consistently refers to forming "pellets or particles," for instance through an "extrusion and chopping process" (’491 Patent, col. 8:39-43, 65-66). A defendant could argue that this context limits the scope of "solid bulk form" to discrete, somewhat uniform shapes like pellets and excludes dissimilar geometries like fibers.
VI. Other Allegations
Indirect Infringement
The prayer for relief requests an injunction against indirect infringement (Compl. p. 9, ¶B). However, the body of the complaint focuses on direct infringement by Schlumberger and does not plead specific facts to support a claim of induced infringement, such as alleging that Schlumberger instructs its customers to perform the patented method.
Willful Infringement
The complaint does not include a formal count for willful infringement. It does request that the case be declared "exceptional" under 35 U.S.C. § 285 to recover attorneys' fees, but it does not allege pre-suit knowledge of the ’491 patent (Compl. p. 9, ¶E).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of claim construction: can the term "polymer-continuous liquid phase", described in the patent as resulting from coalesced pellets, be construed to cover the accused service’s "composite pill," which is described as a blend of "degradable fibers and particles"?
- A key evidentiary question will be one of technical mechanism: does the polymer in the accused BroadBand service physically transform into a viscous liquid that is the continuous phase, or does it remain a packed bed of distinct solid particles and fibers that functions as a mechanical plug? The answer will likely determine the outcome of the infringement analysis.