Free Response - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02579-RPM NATIONAL OILWELL VARCO, L.P., Plaintiff, v. PASON SYSTEMS USA CORP., Defendant.

PLAINTIFF' RESPONSE TO DEFENDANT' OBJECTIONS TO S S PLAINTIFF' EXHIBITS S
Plaintiff, National Oilwell Varco, L.P. ("Varco"), hereby responds to Defendant Pason Systems USA Corp. ("Pason"), objections to the trial exhibits listed by Plaintiff in Exhibit 1 (Varco'Exhibit List) to the parties' Amended Final Pretrial Order (Dkt No. 174), as follows: s Exhibit 1: (" U.S. Patent No. 5,474,142 & Reexamination Certificate" ) Pason objects to Plaintiff' Exhibit " under FRE 106 and 403. Pason has failed to s 1" identify what makes Exhibit " incomplete or what specific materials are missing therefrom. 1" Pason' objection is absolutely ridiculous if not frivolous in that it objects to the patents in-suit as ordered from the United States Patent and Trademark Office (" PTO" It was Pason ). who initiated the Ex Parte Reexamination of the ` 142 Patent and the PTO issued a Reexamination Certificate stating that all claims of the ` Patent were confirmed. Since the 142 conclusion of the reexamination proceeding anyone who orders a copy of the ` Patent will 142 receive the original ` Patent as issued with the reexamination certificate attached thereto. See 142 Manual of Patent Examining Procedure (MPEP), § 2292 Distribution of Certificate (" copy of A the certificate will also be made a part of any patent copies prepared by the Office subsequent to

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the issuance of the certificate." Thus, the reexamination certificate is now part of the ` ). 142 Patent. Additionally, the ` Patent is relevant to claim interpretation and infringement. 142

Further, Varco'` Patent cannot be said to be unduly prejudicial to Pason or confuse the jury. s 142 Exhibit 4: (" Canadian Patent No. 2,094,313 Bowden" ) Pason objects to Plaintiff'Exhibit " under FRE 402 and 403. s 4" Plaintiff' Exhibit " is a copy of Plaintiff' Canadian Patent No. 2,094,313 and is s 4" s identical to the ` Patent with the exception that it is a Canadian patent versus a U.S. Patent. It 142 is relevant to show both patent notice and willful infringement in that the opinions of counsel relied upon by Pason as a defense to Plaintiff' willfulness claims are directed at both the ` s 142 Patent and its Canadian counterpart patent (Ex. 4). Plaintiff' Exhibit 4 clarifies the inherent s confusion contained within the opinions of counsel relied upon by Pason which inconsistently refer to Varco' patents as either the ` Patent, the ` or the Bowden patents. Further, s 142 313, Varco and Pason Systems, Inc., Pason' parent company, are similarly engaged in a patent s infringement suit ongoing in Canada. Canadian Patent No. 2,094,313 Bowden cannot confuse or prejudice Pason in any way. In fact, Canadian Patent No. 2,094,313 Bowden clarifies damage issues in that Pason reports its revenues and profits from its accused AutoDriller Device as contained within Pason' financial statements such as 10-Qs and 10-Ks. Exhibit 4 provides s clarification in that there are two separate suits ongoing: (1) a U.S. suit involving infringement within the U.S. of U.S. Patent No. 5,474,142 Bowden (Ex. 1); and (2) a Canadian suit involving infringement within Canada of Canadian Patent No. 2,094,313 (Ex. 4). Exhibit 5: (" Patent No. 1,189,644 Bowden" EP ) Pason objects to Plaintiff'Exhibit 5 under FRE 402, 403 and 901. s Plaintiff' Exhibit 5 is a copy of Plaintiff' European Patent Application covering the s s

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same autodriller invention as U.S. Patent No. 5,474,142 to Bowden (Ex. 1). Pason itself has marked EP Patent No. 1,189,644 Bowden and its corresponding file history in its exhibit list and thus its objection as irrelevant, prejudicial or confusing are baseless. See Ex. 2 to the Amended Final Pretrial Order, Exhibits C-4 through C-10. Further, EP Patent No. 1,189,644 Bowden is relevant to rebut Pason' invalidity contentions in that it shows that certain prior art references s asserted by Pason were in fact considered and found distinguishable by the European Patent Office (EPO) in examining identical claims of the ` Patent. Finally, EP Patent No. 1,189,644 142 Bowden will be authenticated at trial by certain of Varco' witnesses or a certified copy of the s same will be provided. Pason has not provided any explanation as to how Plaintiff' Exhibit " unduly s 5" prejudices Pason. Therefore, Plaintiff cannot respond to a blind objection that fails to state the nature or basis that this exhibit unfairly prejudices Pason. Exhibit 7: (" Opposition to EP Patent No. 1,189,644 Bowden File History (Bentec Opposition)" ) Pason objects to Plaintiff' Exhibit " under FRE 106 and 403. Pason has failed to s 7" identify what makes Exhibit " incomplete or what specific materials are missing therefrom. 7" This very exhibit was listed by Pason in its exhibit list. See Amended Final Pretrial Order, Ex. 2, Pason Exhibit Nos. " C4"through " C10" Further, EP Patent No. 1,189,644 . Bowden File History (Bentec Opposition) is relevant to rebut Pason' invalidity contentions in s that it shows that certain prior art references asserted by Pason were considered and distinguishable by the European Patent Office in examining identical claims of the ` Patent. 142 Plaintiff' Exhibit " is relevant to show the scope and content of certain prior art references s 7" relied upon by Pason. For example, in a EPO Opposition, a proceeding substantially similar to a PTO Reexamination, identical claims of the ` Patent were challenged as anticipated and/or 142

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obvious by a third party in light of the identical prior art relied upon by Pason in this case. The findings of the EPO are relevant to show how a person having ordinary skill in the art understands the invention of the claims of the ` Patent and the prior art. Pason has not 142 provided any explanation as to how Plaintiff'Exhibit " unduly prejudices Pason. Therefore, s 7" Plaintiff cannot respond to a blind objection that fails to state the nature or basis that this exhibit unfairly prejudices Pason. However, Plaintiff' Exhibit " is not unduly prejudicial to Pason s 7" and reflects a public record of a proceeding involving the identical prior art and identical claims asserted in this action. Plaintiff is unaware of any incompleteness of Exhibit " and Pason has 7" failed to identify what materials would make Exhibit " complete. Exhibit " is a complete 7" 7" copy of the EPO opposition proceeding involving Plaintiff'EP Patent No. 1,189,644. s Exhibit 28: (" 12-23-99 Correspondence: Email from Ronald Hansford to Terry Leier re Fwd: Bobbie Bowden patent claim (PAS 23745)" ) Pason objects to Plaintiff'Exhibit 28 under FRE 402 and 403. Plaintiff'Exhibit " is s s 28" email correspondence that is part of a chain of correspondence ultimately forwarded to Pason' s patent counsel Terry Leier. The chain appears to originate as Plaintiff' Exhibit " which is s 27" email correspondence dated December 22, 1999, from Brian Taylor (a Pason employee) to Pason' general counsel (Ronald Hansford) which related to the Bowden ` Patent. Exhibit s 142 " appears to be Pason' general counsel (Ronald Hansford) December 23, 1999, email 28" s correspondence copying Pason' patent counsel (Terry Leier) on Brian Taylor' December 22, s s 1999 correspondence (Plaintiff'Exhibit " ). See Exhibit " (" s 27" 28" Message from Brian Taylor at Pason for your consideration." ). Exhibit " is relevant in that is evidences information provided by Pason, by and 28" through its employee Brian Taylor, through its general counsel (Ronald Hansford), to its patent counsel (Terry Leier) for consideration in preparing an infringement opinion that was ultimately

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provided. See Plaintiff' Exhibit " dated February 8, 2000, addressed to: Ronald Hansford. s 29" Thus, Exhibit " evidences the chain of custody of materials provided by Pason to its patent 28" counsel as well as why Pason' patent counsel addressed his February 8, 2000 opinion s (Plaintiff'Exhibit " ) to its agent Ronald Hansford. s 29" Pason has not provided any explanation as to how Plaintiff' Exhibit " unduly s 28" prejudices Pason. Therefore, Plaintiff cannot respond to a blind objection that fails to state the nature or basis that this exhibit unfairly prejudices Pason. Exhibit 82: (" 4-30-03 Correspondence: Emails between Josh Abbey, Lars Olesen, Bob Rodda re hemsing 1 (PAS 1383)" ) Pason objects to Plaintiff'Exhibit " under FRE 402 and 403. s 82" Varco would point out that Plaintiff'Exhibit " evidences Pason practice of targeting s 82" Varco' customers which is highly relevant to Varco' lost profits claims. For example, in s s Plaintiff'Exhibit " , Pason employee (Josh Abbey) writes an email to other Pason employees s 82" including Trevor Holt, Lars Olesen and Bob Rodda and ask them to " [a]ssuming they currently use an autodriller...find out what the ` competition' on this rig (Hemsing 1) and " is" hopefully I can get some information from the toolpush or engineer once I talk to them." See Exhibit " 82." Thus, Exhibit " evidences Pason gathering information about its " 82" competition" --presumably Varco; customers who are using the " competition"autodriller and Pason specifically targeting it' competition' customers. s s Finally, Exhibit " is relevant to show that Plaintiff and 82" Pason has not provided any

Defendant are direct competitors in the identical market.

explanation as to how Plaintiff' Exhibit " unduly prejudices Pason. Therefore, Plaintiff s 82" cannot respond to a blind objection that fails to state the nature or basis that this exhibit unfairly prejudices Pason.

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Exhibit 114: (" 11-25-03 Correspondence: Email from Jim Hill to Bob Rodda, David White, Josh Abbey, Trevor Holt re attached Varco ad in oil and gas journal (PAS 2053-2054)" ) Pason objects to Plaintiff'Exhibit " s 114" under FRE 402 and 403. Plaintiff' Exhibit " s 114"is email correspondence between Pason employees relating to Varco' disk brake automatic drilling system covered by the claims of the ` Patent. s 142 Plaintiff'Exhibit " s 114" relevant to damages in that Pason'General Manager (Ben Thomas) is s writes to Pason'President and CEO (Jim Hill) stating that Varco'automatic driller is paid for s s after the first two wells are drilled. See Plaintiff' Exhibit " s 114" Looks like Varco is going to (" try to convince the operators to push that disk brake for them, 2 wells to break even." This ). statement is relevant to the damages inquiry under both lost profits and a reasonable royalty analysis in that they show the profitability of the inventions at issue in this lawsuit. See GeorgiaPacific Corp. v. United States Plywood Corp., 318 F. Supp. 1116, 166 USPQ 235 (S.D.N.Y. 1970), modified and aff'd sub. nom., Georgia-Pacific Corp. v. United States Plywood Champion Papers, Inc., 446 F.2d 295, 170 USPQ 369 (2d Cir.), cert. denied, 404 U.S. 870, 171 USPQ 322 (1971); see also, Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 1162, 197 USPQ 726, 734-35 (6th Cir. 1978), cert. denied, 439 U.S. 856 (1986)). Further, Plaintiff' Exhibit " s 114"evidences Pason' awareness of the ` Patent' s 142 s application to disk brake drawworks systems and is relevant to Pason'attempts to manufacture s an autodriller that is capable of working with disk brake drawworks. Thus, Exhibit " 114" evidences Pason'attempt to copy their competitor (Varco) which is objective evidence of nons obvousness. See, Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). Thus, Exhibit " 114" is relevant to both damages and non-obviousness. Pason has not provided any explanation as to how Plaintiff' Exhibit " s 114"unduly

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prejudices Pason. Therefore, Plaintiff cannot respond to a blind objection that fails to state the nature or basis that this exhibit unfairly prejudices Pason. Exhibit 125: (" 2-03-04 Correspondence: Email from Lars Olesen to Brent Noble, Bob Rodda, Trevor Holt, Josh Abbey re PD 618 // AD (PAS 20385)" ) Pason objects to Plaintiff'Exhibit 125 under FRE 402 and 403. s Plaintiff' Exhibit " s 125"evidences customers opinion regarding the performance of Pason' AutoDriller as well as other autodrillers on the market. s Additionally, this exhibit

evidence' Pason' practice of offering a " trial"to displace Plaintiff' patented automatic s s free s drilling systems currently used by the customer. Further, Plaintiff' Exhibit " s 125"evidences Pason searching for a " candidate"for its AutoDriller. That one of Plaintiff' customers s

Defendant has targeted to displace with its competing automatic drilling system. Exhibit 125 is therefore relevant to Varco' damages in both lost profits and reasonable royalty calculations. s Further, this evidence rebuts Pason' affirmative defense of non-infringement, to the extent s Pason contends that its AutoDriller does not infringe the claims of the ` Patent because is 142 somehow superior to certain Varco commercial embodiments of the ` Patent. 142 Pason has not provided any explanation as to how Plaintiff' Exhibit " s 125"unduly prejudices Pason. Therefore, Plaintiff cannot respond to a blind objection that fails to state the nature or basis that this exhibit unfairly prejudices Pason. Exhibit 134: (" 2-25-04 Correspondence: Email from Francis Dunlop to Bob Rodda and Trevor Hold re Dolezsar Affidavit2_v1.doc (PAS 1336)" ) Pason objects to Plaintiff' Exhibit " s 134"as duplicative of Plaintiff' Exhibit " . s 133" Plaintiff' exhibit " s 133"appears to be identical to Plaintiff' Exhibit " s 134"and therefore, is Plaintiff will withdraw Exhibit " . 134"

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Exhibit 141: (" 4-03-04 Letter from PetroSkills-OGCI to Barbara Laff (JFB00077)" ) Pason objects to Plaintiff'Exhibit 141 under FRE 402 and 403. s Plaintiff withdraws Exhibit " 141" from its exhibit list. Exhibit 152: (" 5-13-04 Correspondence: Emails among Terry Leier, Bob Rodda, Barbar Laff re Wildcat'Desperate Move (JFB 00507-517)" s ) Pason objects to Plaintiff'Exhibit 152 under FRE 403 and 802. s Varco' Exhibit 152 is relevant to Pason' patent counsel' understanding, or lack s s s thereof, regarding the operation of the Pason AutoDriller in preparing at least two prior noninfringement opinions relied upon by Pason relevant to willfulness. For example, in Pason' s patent counsel'two prior written opinions, Pason'counsel stated that he did not have sufficient s s information to render an opinion with respect to claim 14 of the ` Patent. See Exhibit 29 & 142 58, pages 10 & 9, respectively: (" disclosure that I have is not sufficiently detailed to the determine whether it is proposed to measure both the weight on bit and the drilling fluid pressure..." Exhibit 152 further reflects that Pason' patent counsel, whose opinion Pason is ). s relying, does not have a firm understanding of how Pason' accused AutoDriller operates. See s Exhibit 152, page 2 (" m not sure that Pason uses a differential control at all, perhaps a range I' control or proportional, integral derivative (PID) control...Of course one must look at the Pason system to determine how it operates." Further, Exhibit 152 is relevant to willful infringement ). in that it reflects Pason' patent counsel' opinion that differential control would fall within the s s scope of claim 14 of the ` Patent. See Exhibit 152, page 2 (" don'know that Pason would 142 I t obtain any benefit by going to the 36 condition that differential control falling within the scope of the changes called for in claim 14" Varco'Exhibit 152 is further relevant as it shows how ). s Pason as well as a person having ordinary skill in the art understood the claim steps " measuring weight on bit" " and changes" they are used in Claims 11 and 14 of the ` Patent--a position as 142

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Pason advocates against in its Markman brief. Pason has not provided any explanation as to how Plaintiff' Exhibit " s 152"unduly prejudices Pason. Therefore, Plaintiff cannot respond to a blind objection that fails to state the nature or basis that this exhibit unfairly prejudices Pason. Exhibit 152 does not include statements which are not hearsay pursuant to FRE 801 because it is an admission by a party-opponent. See FRE 801(d)(2). Additionally, Exhibit 152 falls within the hearsay exception number (6) records of regularly conducted activity, e.g., business records. Exhibits 153 & 154: (" 5-14-04 Correspondence: Emails among Trevor Holt, Ford Brett, Rob Rodda, Terry Leier RE: Pason AutoDriller Information ­ thanks and a bit more...(PAS 20564-20566)" and " Correspondence: Email from Ford Brett to Trevor Holt re Pason AutoDriller Information ­ thanks and a bit more...(PAS 20560)" ) Pason objects to Plaintiff' Exhibits 153 and 154 as having a typographical error with s respect to the bates numbered ranges. Plaintiff' Exhibit 153 includes bates ranges " s PAS 20564-20569"and Exhibit 154 includes bates ranges " PAS 20560-20563." Plaintiff will amend its Exhibit List to reflect the typographical error. Exhibit 155: (" 5-14-04 Correspondence: Emails among Terry Leier, Ford Brett, Trevor Hold, Bob Rodda, Barbara Laff re Wildcat'Desperate Move (JFB 00502s 506)" ) Pason objects to Plaintiff'Exhibit 155 under FRE 106, 403 and 802. Pason has failed to s identify what makes Exhibit " 155" incomplete or what specific materials are missing therefrom. Plaintiff' Exhibit " s 155"is email correspondence between Pason employees, Pason' s patent counsel, Pason' designated technical expert, and Pason'trial counsel. Exhibit " s s 155" is highly relevant to show the function and operation of the accused Pason AutoDriller system for

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the determination of infringement in this case. For example, Exhibit " 155"describes Pason' s understanding of how the ` Patent measures weight-on-bit (WOB), and that all WOB 142 measurement systems " essentially deals with the same thing."(JFB 504). Additionally, Exhibit " 155" provides a detailed description of how Pason'accused AutoDriller works as stated by the s alleged designer as follows: " am forwarding you some information that I sent to Ford Brett. I This may give more of an understanding into the workings of the Pason AutoDriller system. * * * Pason AutoDriller System Overview The Pason AutoDriller ties into the Pason EDR system for feedback of Weight on Bit, Standpipe Pressure, ROP..." This correspondence is highly relevant to show infringement in that it describes the function and operation of the accused Pason AutoDriller. Plaintiff'Exhibit 155 is not unduly prejudicial. Pason chose to waive its attorney client s privilege and rely upon the opinions of counsel as a defense to willful infringement. Once this privilege was waived the waiver extended to all opinions of this counsel. Pason cannot rely upon written opinions provided in 2000 and 2002 (Exhibits 29 & 58) and choose to ignore subsequent opinions provided by the same counsel. Further, Exhibit 155 evidences the very first opinion regarding claim 14 of the ` patent. All prior opinions contained a disclaimer that the attorney 142 did not have the requisite disclosure to analyze claim 14. Exhibit 155 does not include statements which are not hearsay pursuant to FRE 801 because it is an admission by a party-opponent. See FRE 801(d)(2). Additionally, Exhibit 155 falls within the hearsay exception number (6) records of regularly conducted activity, e.g., business records. Finally, Exhibit 155 is admissible pursuant to FRE 106. Specifically, Exhibit 155 is a

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writing which requires the introduction of other writings which ought in fairness to be considered contemporaneously with it. Specifically, Exhibit " 155" relevant to willful infringement. For is example, in Pason' patent counsel' two prior written opinions, Pason' counsel stated that he s s s did not have sufficient information to render an opinion with respect to claim 14 of the ` 142 Patent. See Exhibit 29 & 58, pages 10 & 9, respectively: (" disclosure that I have is not the sufficiently detailed to determine whether it is proposed to measure both the weight on bit and the drilling fluid pressure...Clarification of what measurements and transformations of those measurements that Pason proposes to carry out is needed for further consideration in relation to this [14] claim." However, on May 14, 2004, after receiving the detailed description of how ). Pason' accused AutoDriller operates, Pason' patent counsel finally provided his infringement s s opinion as follows: " Ford [J. Ford Brett], I got this note from Trevor Holt at Pason. Hi His understanding of claim 14 is that...Consequently, the technical explanation appears to be that Pason system operates within the parameters of claim 14...it would seem to me that the control algorithm of Pason would operate at least some of the time within the parameters of claim 14. Consequently, the technical explanation appears to be that Pason system operates within the parameters of claim 14 at least some of the time. Unless there is a basis to invalidate the claim, the operation of the Pason system appears to fall within the scope of the claim. Therefore, if there is a Markman/construction hearing that affirms the claim, there does not seem to me to be any other defense issues."(Plaintiff'Exhibit s " , JFB 502) 155" Exhibit 155 is a necessary writing that which ought in fairness be considered contemporaneously with prior written opinions of counsel (Ex. 29 & 58) in that Exhibit 155 is the first time Pason' patent counsel rendered an opinion with respect to claim 14 of the ` s 142 Patent and is also relevant with respect to the intent and willfulness of Pason' infringement in s this case.

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Exhibit 156: (" 5-15-04 Correspondence: Emails among Terry Leier, Ford Brett, Bob Rodda, Barbara Laff, others re Wildcat'Desparate Move (JFB 00496-501)" s ) Pason objects to Plaintiff'Exhibit 156 under FRE 106, 403 and 802. Pason has failed to s identify what makes Exhibit " 156" incomplete or what specific materials are missing therefrom. Plaintiff' Exhibit " s 156"is email correspondence between Pason employees, Pason' s patent counsel, Pason' designated technical expert, and Pason'trial counsel. Exhibit " s s 156" is highly relevant to show the function and operation of the accused Pason AutoDriller system for the determination of infringement in this case. For example, Exhibit " 156"describes Pason' s understanding of how the ` Patent measures weight-on-bit (WOB), and that all WOB 142 measurement systems " essentially deals with the same thing."(JFB 504). Additionally, Exhibit " 156" provides a detailed description of how Pason'accused AutoDriller works as stated by the s alleged designer as follows: " am forwarding you some information that I sent to Ford Brett. I This may give more of an understanding into the workings of the Pason AutoDriller system. * * * Pason AutoDriller System Overview The Pason AutoDriller ties into the Pason EDR system for feedback of Weight on Bit, Standpipe Pressure, ROP..." This correspondence is highly relevant to show infringement in that it describes the function and operation of the accused Pason AutoDriller. Plaintiff'Exhibit 156 is not unduly prejudicial. Pason has not provided any explanation s as to how Plaintiff'Exhibit " s 156" unduly prejudices Pason. Therefore, Plaintiff cannot respond to a blind objection that fails to state the nature or basis that this exhibit unfairly prejudices Pason. Pason chose to waive its attorney client privilege and rely upon the opinions of counsel as a defense to willful infringement. Once this privilege was waived the waiver extended to all opinions of this counsel. Pason cannot rely upon written opinions provided in 2000 and 2002

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(Exhibits 29 & 58) and choose to ignore subsequent opinions provided by the same counsel. Further, Exhibit 156 evidences the very first opinion regarding claim 14 of the ` patent. All 142 prior opinions contained a disclaimer that the attorney did not have the requisite disclosure to analyze claim 14. Exhibit 155 does not include statements which are not hearsay pursuant to FRE 801 because it is an admission by a party-opponent. See FRE 801(d)(2). Additionally, Exhibit 156 falls within the hearsay exception number (6) records of regularly conducted activity, e.g., business records. Finally, Exhibit 156 is admissible pursuant to FRE 106. Specifically, Exhibit 156 is a writing which requires the introduction of other writings which ought in fairness to be considered contemporaneously with it. Specifically, Exhibit " 156" relevant to willful infringement. For is example, in Pason' patent counsel' two prior written opinions, Pason' counsel stated that he s s s did not have sufficient information to render an opinion with respect to claim 14 of the ` 142 Patent. See Exhibit 29 & 58, pages 10 & 9, respectively: (" disclosure that I have is not the sufficiently detailed to determine whether it is proposed to measure both the weight on bit and the drilling fluid pressure...Clarification of what measurements and transformations of those measurements that Pason proposes to carry out is needed for further consideration in relation to this [14] claim." However, on May 14, 2004, after receiving the detailed description of how ). Pason' accused AutoDriller operates, Pason' patent counsel finally provided his infringement s s opinion as follows: " Ford [J. Ford Brett], I got this note from Trevor Holt at Pason. Hi His understanding of claim 14 is that...Consequently, the technical explanation appears to be that Pason system operates within the parameters of claim 14...it would seem to me that the control algorithm of Pason would operate at least some of the time within the parameters of claim 14. Consequently, the technical

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explanation appears to be that Pason system operates within the parameters of claim 14 at least some of the time. Unless there is a basis to invalidate the claim, the operation of the Pason system appears to fall within the scope of the claim. Therefore, if there is a Markman/construction hearing that affirms the claim, there does not seem to me to be any other defense issues."(Plaintiff'Exhibit s " , JFB 496-497) 156" Exhibit 156 is a necessary writing that which ought in fairness be considered contemporaneously with prior written opinions of counsel (Ex. 29 & 58) in that Exhibit 156 is the first time Pason' patent counsel rendered an opinion with respect to claim 14 of the ` s 142 Patent and is also relevant with respect to the intent and willfulness of Pason' infringement in s this case. Exhibit 157: (" 5-16-04 Correspondence: Email from Ford Brett to Terry Leier and Barbara Laff re Brett Report ­ Version 1 (JFB 00598)" ) Pason objects to Plaintiff'Exhibit " s 157" under FRE 402 and 403. Plaintiff' Exhibit 157 is an email dated May 16, 2004 from Pason' technical expert (J. s s Ford Brett) to Pason'patent counsel (Terry Leier) and trial counsel regarding Mr. Ford Brett' s s expert report. Plaintiff' Exhibit 157 is relevant to Pason' technical expert' credibility and s s s whether or not his opinion(s) are based upon his own knowledge and understanding or that of Pason' patent counsel (Mr. Terry Leier). s For example, Mr. Ford Brett states that he is

uncomfortable with his expert report because " some of the ` issues' towards the end having Terry'words and not my own." Plaintiff' Exhibit 157 is not unduly prejudicial. Exhibit 157 s s reflects a statement by Pason' technical expert that he has " s issues"with certain third party' s opinions included within his expert report. Pason has not provided any explanation as to how Plaintiff' Exhibit " s 157"unduly prejudices Pason. Therefore, Plaintiff cannot respond to a blind objection that fails to state the nature or basis that this exhibit unfairly prejudices Pason.

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Exhibit 158: (" 5-17-04 Correspondence: Emails among Terry Leier, Ford Brett and Barbara Laff re Brett Report ­ Version 1 (JFB 00494-495)" ) Pason objects to Plaintiff'Exhibit " s 158" under FRE 402 and 403. Plaintiff withdraws Exhibit " 158" from its exhibit list. Exhibit 160: (" 5-20-04 Correspondence: Emails among Ford Brett, Barbara Laff, Terry Leier, others re Expert report with one day to spare...(JFB 596-597)" ) Pason objects to Plaintiff'Exhibit " s 160" under FRE 402 and 403. Plaintiff withdraws Exhibit " 160" from its exhibit list. Exhibit 161: (" 5-20-04 Correspondence: Emails among Ford Brett, Terry Leier, Barbara Laff re Ford Brett'Opinion_Version 3 (JFB 00521-522)" s ) Pason objects to Plaintiff'Exhibit " s 161" under FRE 402 and 403. Plaintiff withdraws Exhibit " 161" from its exhibit list. Exhibit 162: (" 5-21-04 Correspondence: Emails among Ford Brett, Terry Leier, Barbara Laff re Ford Brett'Opinion Version 2 (JFB 557-558)" s ) Pason objects to Plaintiff'Exhibit " s 162" under FRE 402 and 403. Plaintiff withdraws Exhibit " 162" from its exhibit list. Exhibit 163: (" Correspondence: Emails among Ford Brett, Terry Leier, Barbara Laff re Ford Brett'Opinion Version 2 (JFB 00557-558)" s ) Pason objects to Plaintiff'Exhibit " s 163" under FRE 402 and 403. Plaintiff withdraws Exhibit " 163" from its exhibit list. Exhibit 166: (" 5-26-04 Correspondence: Emails between Barbara Laff and Ford Brett re Monday (JFB 518-519)" ) Pason objects to Plaintiff'Exhibit " s 166" under FRE 402 and 403. Plaintiff withdraws Exhibit " 166" from its exhibit list. Exhibit 277: (" 9-05-06 Correspondence: Email from Joanna Roman to Ford Brett re Varco v Pason (JFB 313)" ) Pason objects to Plaintiff'Exhibit " s 277" under FRE 402 and 403.

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Plaintiff' Exhibit " s 277"is email correspondence reflecting the date when Defendant' s expert witness J. Ford Brett was provided a copy of the LeCompte Patent. This correspondence reflects that Pason' trial counsel provided Mr. Brett with a copy of the LeCompte Patent on s September 6, 2006--two days after Mr. Brett provided an expert report allegedly relying upon the LeCompte Patent to support Pason' defense that the claims of the ` Patent are invalid. s 142 See Plaintiff'Exhibit " s 277" Mr. Brett, Per Mr. Atkinson'request, attached is the LeCompte (" s Patent." ). Pason has not provided any explanation as to how Plaintiff' Exhibit " s 277"unduly prejudices Pason. Therefore, Plaintiff cannot respond to a blind objection that fails to state the nature or basis that this exhibit unfairly prejudices Pason. Exhibit 278: (" 9-06-06 Correspondence: Email from Tim Atkinson to Ford Brett re Expert Reports (JFB 263)" ) Pason objects to Plaintiff'Exhibit " s 278" under FRE 402 and 403. Plaintiff withdraws Exhibit " 278" from its exhibit list. Exhibit 279: (" 9-26-06 Correspondence: Email from Tim Atkinson to Ford Brett re Prior Art (JFB 246)" ) Pason objects to Plaintiff'Exhibit " s 279" under FRE 402 and 403. Plaintiff withdraws Exhibit " 279" from its exhibit list. Exhibit 285: (" AutoDriller Disk Controller ­ Initial Specification & Project Plan (PAS 20148- 20152)" Pason objects to Plaintiff'Exhibit " s 285" under FRE 402 and 403. Plaintiff' Exhibit " s 285"is a document produced by Pason evidencing the projected specification and control plan for designing, building, testing and production of a pneumatic automatic drilling system for use on disk brake drawworks systems. Plaintiff' Exhibit " s 285" shows planned modifications to the accused Pason AutoDriller so that it can be manipulated or

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modified to control disk brake drawworks systems. Plaintiff' Exhibit " s 285" highly relevant is to the costs associated with the research and development of the accused AutoDriller system as well as similar products which are relevant to damages asserted in this case. Plaintiff' Exhibit s " 285" also relevant to the issue of willful infringement. is Pason has not provided any explanation as to how Plaintiff' Exhibit " s 285"unduly prejudices Pason. Therefore, Plaintiff cannot respond to a blind objection that fails to state the nature or basis that this exhibit unfairly prejudices Pason. Exhibit 307: (" 2-08-04 Chart of WOB, HL & PRS on Pason AD (PAS 20668)" ) Pason objects to Plaintiff' Exhibit " s 307" under FRE 106 and 403. Pason has failed to identify what makes Exhibit " 307" incomplete or what specific materials are missing therefrom. Plaintiff' Exhibit 307 is a strip chart type of recording produced by Pason comparing s changes in weight on bit (WOB), hookooad and standpipe pressure recorded on a rig utilizing Pason' AutoDriller. Plaintiff' Exhibit 307 is relevant to the function and operational results s s obtained using the accused Pason AutoDriller system as well as the relationship between various drilling parameters as explained by the inventor of the ` Patent during its prosecution. Pason 142 has not provided any explanation as to how Plaintiff' Exhibit " s 307" unduly prejudices Pason. Therefore, Plaintiff cannot respond to a blind objection that fails to state the nature or basis that this exhibit unfairly prejudices Pason. Plaintiff' Exhibit 307 cannot be unduly prejudicial as it s merely depicts real time data collected by Pason through one of its products on a rig utilizing the accused Pason AutoDriller system. Exhibit 366: (" Photo of Wildcat Directional-Horizontal Mud-Motor Controller (WS 1864)" ) Pason objects to Plaintiff'Exhibit " s 366" under FRE 1004 and 403. Plaintiff' Exhibit " s 366"is a copy of a photograph of one of Plaintiff' commercial s

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automatic drilling system embodying the invention of the ` Patent. Plaintiff has been unable 142 to obtain the original of this photograph as the original is either lost or destroyed. Plaintiff' s Exhibit " 366"cannot unduly prejudice Pason as it is merely a copy of a photograph of a commercial embodiment of the ` Patent. 142 Pason has not provided any explanation as to how Plaintiff' Exhibit " s 366"unduly prejudices Pason. Therefore, Plaintiff cannot respond to a blind objection that fails to state the nature or basis that this exhibit unfairly prejudices Pason. Exhibit 381: (" Brochure, OSI Hall Effect Current Sensors (PAS 21569-21575)" ) Pason objects to Plaintiff'Exhibit 381 under FRE 106 and 403. s Plaintiff withdraws Exhibit " 381" from its exhibit list. Exhibit 384: (" Unsigned engagement letter, Brett Ford" ) Pason objects to Plaintiff'Exhibit 384 under FRE 402 and 403. s Plaintiff withdraws Exhibit " 384" from its exhibit list. Exhibit 385: (" Correspondence: Email to/from Ford Brett re still to do for Pason--Other claims of the Bowden Patent" ) Pason objects to Plaintiff'Exhibit 385 under FRE 402 and 403. s Plaintiff withdraws Exhibit " 385" from its exhibit list. Exhibit 403: (" P&L Statements as of October 2003 (PAS 23438-23528)" ) Pason objects to Plaintiff' Exhibit 403 under FRE 106 and 403. Pason has failed to s identify what makes Exhibit " 403" incomplete or what specific materials are missing therefrom. Plaintiff' Exhibit " s 403"is Pason' " s Statement of Earnings" prepared by Pason for the relevant periods of infringement. Plaintiff' Exhibit 403 merely provides revenues for specific s time periods as well as the projected revenues for 2005 for its accused AutoDriller system. Pason has failed to show how such a spreadsheet unduly prejudices Pason or how the data

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contained within this Exhibit is incomplete. Pason has not provided any explanation as to how Plaintiff' Exhibit " s 403"unduly prejudices Pason. Therefore, Plaintiff cannot respond to a blind objection that fails to state the nature or basis that this exhibit unfairly prejudices Pason. Exhibit 429: (" 12-31-05 Pason (Canada) Net Income & Cashflow Projections 2004 & 2005, sch. 7-10 (PAS 3447-3450; Aberle Depo. Ex. 21" ) Pason objects to Plaintiff'Exhibit " s 429" under FRE 402 and 403. Plaintiff' Exhibit " s 429" is a spreadsheet showing total revenues for its accused AutoDriller system as well as projected revenues from 2004 through 2007. Plaintiff' Exhibit s " 429" relevant to show willful infringement in that it shows financial motivation to continue to is market, sell and use the accused Pason AutoDriller system. Plaintiff' Exhibit " s 429"is also relevant to damages pursuant to determination of a reasonable royalty. For example, the

projections as well as actual revenue provides evidence the potential market for the accused Pason AutoDriller system. Pason has failed to identify how Exhibit 429 is unduly prejudicial. Exhibit 429 is not prejudicial for several reasons including the fact that this spreadsheet was prepared by Pason based upon sales data collected by Pason and Pason'projected revenues. s Exhibit 430: (" 1-01-06 Pason Rig List (PAS 18971-18981; PAS 18990-19004; PAS 1894918963; PAS 18480-18590)" ) Pason objects to Plaintiff'Exhibit 430 under FRE 1004 and 403. s Plaintiff' Exhibit " s 430" a spreadsheet prepared by Pason showing its customers who is were renting the accused Pason AutoDriller as well as the rig number and location. Plaintiff' s Exhibit 430 is relevant to show Pason' customers who rented Pason' accused AutoDriller s s system. Plaintiff'Exhibit 430 is further relevant to damages analysis to show that Plaintiff and s Defendant are direct competitors in the identical market. Pason prepared and produced the

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spreadsheet contained within Exhibit 430 and therefore its objection under FRE 1004 is baseless. Exhibit 443: (" 12-31-06 Pason Systems Inc. Annual Report 2006" ) Pason objects to Plaintiff'Exhibit 443 under FRE 106, 403 and 901. Pason has failed to s identify what makes Exhibit " 443" incomplete or what specific materials are missing therefrom. Plaintiff'Exhibit " s 443" a copy of Pason Systems Inc. Annual Report 2006. Plaintiff' is s Exhibit 443 is highly relevant to the determination of damages and injunctive relief sought in this case. For example, Exhibit 444 discloses Pason' relevant market share, profitability, and total s revenue for Pason' accused AutoDriller system. Additionally, Plaintiff' Exhibit 443 is also s s relevant with respect to the intent and willfulness of Pason for infringement in this case. Defendant has failed to identify how Exhibit 443 is unduly prejudicial. Exhibit 443 is a necessary disclosure of a publicly traded company and was prepared by Pason or its agents to comply with certain securities regulations. Plaintiff will authenticate Exhibit 443 at trial through witnesses or else provide a certified copy of Exhibit 443 at the time of trial. Exhibit 444: (" Pason System Inc. Annual Report 2007" ) Pason objects to Plaintiff'Exhibit " s 444" under FRE 106, 403 and 901. Pason has failed to identify what makes Exhibit " 444" incomplete or what specific materials are missing therefrom. Plaintiff' Exhibit " s 444"(" Pason System Inc. Annual Report 2007" was not released ) until the end of March 2008, and therefore not available when the parties had agreed to exchange exhibits on March 18, 2008. Plaintiff promptly provided Pason a copy of this exhibit in April 2008. Plaintiff' Exhibit 444 is highly relevant to the determination of damages and injunctive s relief sought in this case. For example, Exhibit 444 discloses Pason' relevant market share, s

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profitability, and total revenue for Pason'accused AutoDriller system. Additionally, Plaintiff' s s Exhibit 444 is also relevant with respect to the intent and willfulness of Pason for infringement in this case. Defendant has failed to identify how Exhibit 443 is unduly prejudicial. Exhibit 443 is a necessary disclosure of a publicly traded company and was prepared by Pason or its agents to comply with certain securities regulations. Plaintiff will authenticate Exhibit 444 at trial through witnesses or else provide a certified copy of Exhibit 444 at the time of trial. Exhibit 446: (" Notice of Patent Infringement sent out by Bobby Bowden (PAS 863)" ) Pason objects to Plaintiff'Exhibit " s 446" under FRE 802. Plaintiff' Exhibit " s 446"was produced by Pason during discovery in this litigation and bates labeled by Pason as " PAS 863." Pursuant to the parties Amended Final Pretrial Order (Dkt. No. 174), Pason has stipulated that all documents bearing bates numbers " PAS_"such as , Plaintiff'Exhibit " , are the business records of Pason and thus an exception (FRE 803(6)) s 446" to the hearsay rule (FRE 802). Exhibit 448: (" Pason AD Algorithm (PAS 3874-4072; PAS 23570-23579; PAS73-99)" ) Pason objects to Plaintiff' Exhibit " s 448"under FRE 106. Pason has failed to identify what makes Exhibit " 448" incomplete or what specific materials are missing therefrom. Plaintiff' Exhibit " s 448"is a compilation of all computer codes relating to Pason' s AutoDriller system produced by Pason during this litigation. If Plaintiff' Exhibit " s 448"is incomplete for any reason it is due to Pason' failure to produce all lines of computer code s necessary for the Pason AutoDriller System'algorithm. s

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Exhibit 468: (" Video of Pason AutoDriller in Operation 12-1-06" ) Pason objects to Plaintiff' Exhibit " s 468" under FRE 106 and 901. Pason has failed to identify what makes Exhibit " 468" incomplete or what specific materials are missing therefrom. Plaintiff' Exhibit 468 is a video taken of an accused Pason AutoDriller which will be s authenticated by certain of Plaintiff'witnesses. s Exhibit 469: (" Video of Pason AutoDriller in Operation 7-13-06" ) Pason objects to Plaintiff'Exhibit " s 469" under FRE 106 and 901. Pason has failed to

identify what makes Exhibit " 469" incomplete or what specific materials are missing therefrom. Plaintiff' Exhibit 468 is a video taken of an accused Pason AutoDriller which will be s authenticated by certain of Plaintiff'witnesses. s

Wherefore, premises considered Plaintiff respectfully requests that the Defendant' s Objection to Plaintiff'Exhibits be overruled in all respects. s Dated: April 28, 2008 Respectfully submitted, __/s/ Robert M. Bowick__________ Robert M. Bowick Matthews, Lawson, & Bowick PLLC 2000 Bering Suite 700 Houston, Texas 77057 (713) 355-4200 (telephone) (713) 355-9689 (facsimile) John W. Raley, III Cooper & Scully, P.C. 700 Louisiana Street, Suite 3850 Houston, TX 77002 (713) 236-6801 (telephone) (713) 236-6880 (facsimile) Jane Michaels Holland & Hart, LLP 555 Seventeenth Street, Suite 3200

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Denver, Colorado 80201-8749 (303) 295-8000 (telephone) (303) 295-8261 (facsimile) C ERTIFICATE O F S ERVICE I hereby certify that on April 28, 2008, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following:

Timothy Atkinson Mark Haynes Kelley Bergelt Mark E. Lacis Ireland Stapleton Prior & Pascoe, P.C. 1675 Broadway, Suite 2600 Denver, Colorado 80202 (303) 623-2700 (telephone) (303) 623-2062 (facsimile) ___/s/ Robert M. Bowick______ Robert M. Bowick

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