IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

KENNETH WILSON, PhD Plaintiff, v. BAKER HUGHES INCORPORATED, and PRODUCTION CONCEPT DEVELOPMENT, INC. Defendants.

CIVIL ACTION NO.______________

JURY DEMANDED

PLAINTIFFS ORIGINAL COMPLAINT FOR DECLARATORY RELIEF Plaintiff, Dr. Kenneth Wilson, files this Original Complaint against Defendants, Baker Hughes Incorporated and Product Concept Development, Inc. seeking declaratory relief with regards to United States Patent Application 13/351,904 DOWNHOLE ACTIVATION SYSTEM USING MAGNETS AND METHOD THEREOF (the 904 Patent Application) any continuation divisional, continuation in-part, and any resulting patents or reissues thereof, whether domestic or international and would respectfully show as follows: I. PARTIES 1. Plaintiff, Dr. Kenneth Wilson (Wilson), is an individual with his place of

residence in Houston, Texas. 2. Defendant, Baker Hughes Incorporated (Baker Hughes) is a foreign corporation

with its principle place of business in Harris County, Texas. 3. Baker Hughes may be served with summons by serving its registered agent for

process at the following address: CT Corporation System

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1999 Bryan Street, Suite 900 Dallas, Texas 75201-3136 4. Defendant, Product Concept Development, Inc. (PCD) is a Texas corporation

with its principle place of business in Anderson County, Texas. 5. PCD may be served with summons by serving its registered agent for process at

the following address: Donna Rainone 410 Private Road 8315 Palestine, Texas 75803 II. JURISDICTION AND VENUE 6. Jurisdiction resides under 28 U.S.C. 1333, specifically under the provisions of 35

U.S.C. 261 and 35 U.S.C. 256 as this matter involves the validity of the assignment of a patent. Whether a patent has been assigned is a question of federal law. In re Supernatural Foods, LLC, 268 B.R. 759, 797-98 (Bankr. M.D. La. 2001). The validity of the assignment of a patent is a question arising under the patent laws. Crown Die & Tool CO. v. Nye Tool & Machine Works, 261 U.S. 24, 33 (U.S. 1923). 7. Venue is appropriate in this Court under the provisions of 28 U.S.C. 1391(b)

because a substantial part of the events or missions giving rise to the claim occurred in the Harris County, Texas, which is within the judicial district of this Court, the Southern District of Texas. 8. Furthermore, for purposes of venue under 28 U.S.C. 1391(b), Defendant is deemed

to reside in this district under the provisions of 28 U.S.C. 1391(c) as it subject to personal jurisdiction in this district.

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III. FACTUAL BACKGROUND a. Initial Scope of Work 9. 10. Plaintiff, Wilson is a Ph.D. in Material Sciences. He began working for PCD in January 2009 as an at-will employee, employed as a

Director of Material Sciences. 11. Prior to Wilsons employment at PCD, on September 23, 2008 Baker Hughes

contracted PCD to develop and improve a tubular electric motor for down hole application (the Motor). Some of the improvements PCD designed to improve the motors efficiency were to change the spatial relationship of coil windings of the motors electromagnet, to change the firing scheme that controlled the motor, and to replace the bearings with new bearings. 12. The previous pneumatic system used a pneumatic line system to increase the

hydraulic pressure in one chamber in a down hole line which, in turn, would create a high pressure environment at the interface of the two chambers, thereby opening a safety valve. 13. The previous pneumatic system would maintain high pressure at the interface seal

when the pneumatic valve actuating process was initiated. 14. While Wilson worked on the Baker Hughes Motor project, he learned that several

Baker Hughes engineers were concerned about the seal integrity between the pneumatic chambers. If the seal ever lost integrity, the pneumatic pressure, created by the tubular motor would be lost, and the safety valve would not actuate. 15. 16. There were multiple seals available for failure. PCD was not tasked and did not contract to remediate Baker Hughes concerns

regarding seal integrity, as evidenced by the scope of work in the contract between Baker Hughes and PCD, specifically Exhibit A to the contract entitled Deliverables.

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17. 18.

Wilson considered the issue and possible solutions on his personal time. Eventually, Wilson fully realized a possible solution while at home eliminating

the need for seals entirely, and utilizing a magnetic actuator with heavy gauss (industrial strength) magnets, aligned with similar polarity. 19. Wilson hand sketched a magnetically activated system, for a down hole activation

of the valve itself, independent of the motor, by activating a solenoid like system within a tubular chamber to open and close valves. That fully realized solution is now the subject of the 904 Patent Application at issue in this case, and the claims that will be the basis of a new patent. b. The Solution 20. Wilsons solution was novel, and addressed issues concerning significant friction

being exerted on valves which the motor exerted force on through a pusher. The original design was a pneumatic valve pushed by a rod in a tubular chamber and thousands of feet of tubular line. Pressure in the line pushed the rod which opened a valve. When the pressure was released the valve would close. 21. Wilsons idea was not within the original PCD scope of work contracted for by

Baker Hughes, as PCD was only hired to improve the efficiency of the motor output as described above. Baker Hughes did not hire PCD to reduce friction on the seals between chambers because Baker Hughes had better facilities to test seal friction created from hydraulic pressure acting on the seals. 22. However, Wilsons invention took out the need for seals between chambers by

utilizing magnets in the following manner. 23. Essentially, and as reflected in the 904 Patent Application, the motor, much like a

solenoid, pushed on rods and at the end of the two rods were two circular magnetic disks. Rather

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than have a seal like the original design, which Baker Hughes was testing, Wilson proposed including magnets in a specific polarization alignment in the second chamber such that the movement down of the magnets in the first chamber would repulse the magnets in the second chamber. The magnets in the second chamber would then be repulsed down and pushed open the valve. This design allowed the motor to act on the valve without the necessity of any seal, thereby eliminating all seal friction, and permitting all force coming from the motor to be exerted directly on the valve. c. The Patent Application 24. Wilson informally revealed his idea at a discussion during lunch on April 11, 2011

to Robert McDaniel, an employee of Baker Hughes. There was immediate interest in his initial hand drawn sketch. Wilson was told by PCD management to write down this idea more formally and send it on PCDworks letter head to Baker Hughes, which he did on April 14, 2011. Wilson noted specifically in his writing that his new magnet design is well outside Baker Hughes original design, and perhaps that it is too late to change course. 25. Wilson continued working at PCD on the motor project, and he thought interest in

his seal-less friction concept at Baker Hughes seemed to fade. 26. However, on December 13, 2011 Wilson was contacted by Baker Hughes patent

lawyers regarding whether the claims in his draft patent application accurately reflected Wilsons ideas and captured the technology he had created. 27. Wilson confirmed the document seemed to reflect his idea, but did not assign any

rights nor give the attorney permission to file on his behalf. 28. Soon thereafter, in January 2012, Wilson left PCD following an incident during

which the principal of PCD pointed a loaded gun at Wilson.

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29.

Several months later, in May 2012, Wilson was contacted by an employee of Baker

Hughes, Robert McDaniel, who asked Wilson if he had executed the appropriate paperwork to assign his rights in Wilsons conceptualized drawing. Wilson advised McDaniel that he had not, and that he would not as Wilson no longer worked for PCD and the invention was outside of the scope of his employment at PCD. 30. On or about January 17, 2012, Wilson learned that the law firm of Cantor Colburn,

LLP, at Baker Hughes behest, filed the 904 Patent Application. A true and correct copy of the original 904 Patent Application is attached as Exhibit A and incorporated herein for all purposes. 31. The claims in the Patent Application disclosed Wilsons idea, thus constructively

reducing the idea to practice. 32. 33. The 904 Patent Application listed Wilson as the Applicant and Inventor. Wilson retained counsel shortly thereafter to file a true Power of Attorney to take

control of the patent on the basis that Baker Hughes had no rights in the 904 Patent Application. 34. To rebut Wilsons filing with the Patent Office, Cantor Colburn, LLP filed

documents in August of 2012 intended to establish Baker Hughes as the assignee of all rights, title and interest in the 904 Patent Application. 35. Wilson received these documents in early September 2013. Prior to that time

Wilson had never seen either of the two documents Cantor Colburn, LLP attached to its response to Wilsons Power of Attorney. 36. The first exhibit attached to Cantor Colburn, LLPs filing was entitled the

PRODUCT CONCEPT DEVELOPMENT, INC. dba PCDworks EMPLOYEE HANDBOOK. That document at section 4.9 contained the following clause: The Company has complete ownership rights of any patentable, copyrights, discovery, or other creations developed by the employee while using Company

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time, tools, data, and facilities. This ensures that employees respect the intellectual property rights of others. This includes any articles, materials, books, software or other information an employee writes while receiving Company compensation, with the exception of written materials not Company related for which an employee has received specific written permission from the Company. 37. The document purported to be executed by Wilson on April 1, 2010. However,

Wilson never executed this document. 38. The signature on the page is similar to Wilsons but is not Wilsons ; the penmanship

and other marks/notations are not Wilsons. 39. On information and belief, Wilson believes this document was created after he

refused to execute assignment paperwork that PCD had given to him. 40. At any rate, Wilson did not execute that document nor did he authorize anyone else

to execute it on his behalf. 41. Even had Wilson executed the Employee Handbook, which he did not, by the

Employee Handbooks own terms Wilsons invention was outside of the scope of its slight reference to ownership of any patentable, copyrights, discovery, or other creations. Wilson did not utilize Company time, tools, data, or facilities to create his patentable idea. Further, the Employee Handbook does not contain any assignment language. 42. Additionally, the Employee Handbook itself states, [t]he policies and procedures

in this handbook are not intended to be contractual commitments. It also states that Wilson acknowledge[s] this handbook is neither a contract of employment nor a legal document. This alleged assignment is illusory, without consideration, and is a pure advisory document with no binding affect. 43. Cantor Colburn, LLP also attached an assignment from PCD to Baker Hughes dated

June 22, 2012 which purports to convey all of PCDs rights in the Patent to Baker Hughes.

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44.

But PCD had no right to convey Wilsons invention absent his consent , which he

never explicitly nor implicitly gave PCD. 45. Because the Patent Office does not make determinations of the validity of

assignments or ownership of patents, the filing of this suit was necessary to protect Wilsons rights in the 904 Patent Application, its claims and the eventual protected claims of the patent. 46. Baker Hughes, knowingly or otherwise, filed for and is prosecuting the 904 Patent

Application, which it does not have a right to do. IV. CAUSES OF ACTION A. Count 1 - Declaratory Relief as to Ownership Rights in Patent Application 47. 48. Paragraphs 1-46 are specifically incorporated herein for all purposes. Baker Hughes filing and prosecution of the 904 Patent Application, which claims

the right to exploit the disclosures or teachings of the patent has created a case of actual controversy which on this Court may resolve. 49. Plaintiff seeks a declaratory judgment pursuant under Fed. R. Civ. P. 57 and 28

U.S.C. 2201 which states that any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. Pursuant to such section Plaintiff requests this Court order, adjudge, and declare that: a. The purported signature of Dr. Kenneth Wilson on the PCD PRODUCT CONCEPT DEVELOPMENT, INC. dba PCDworks EMPLOYEE HANDBOOK is a forgery; b. The PCD PRODUCT CONCEPT DEVELOPMENT, INC. dba PCDworks EMPLOYEE HANDBOOK is illusory;

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c. The PCD PRODUCT CONCEPT DEVELOPMENT, INC. dba PCDworks EMPLOYEE HANDBOOK is without consideration; d. The PCD PRODUCT CONCEPT DEVELOPMENT, INC. dba PCDworks EMPLOYEE HANDBOOK is an advisory document; e. The PCD PRODUCT CONCEPT DEVELOPMENT, INC. dba PCDworks EMPLOYEE HANDBOOK is nonbinding; f. Dr. Kenneth Wilson did not use Company time to create the idea subject to the 904 Patent Application; g. Dr. Kenneth Wilson did not use Company tools to create the idea subject to the 904 Patent Application; h. Dr. Kenneth Wilson did not use Company data to create the idea subject to the 904 Patent Application; i. Dr. Kenneth Wilson did not use Company facilities to create the idea subject to the 904 Patent Application; j. There was no valid assignment from Dr. Kenneth Wilson to Product Concept Development, Inc.; k. There was no valid assignment from Product Concept Development, Inc. to Baker Hughes, Inc.; and/or l. Kenneth Wilson is the owner of and has exclusive rights to exploit all allowed claims and all possible disclosures originating from the current disclosure or in the future in Patent Application 13/351,904 DOWNHOLE ACTIVATION SYSTEM USING MAGNETS AND METHOD THEREOF, and any continuation divisional, continuation in-part, and any resulting patents or reissues thereof, whether domestic

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or international. 50. The declaration sought by Plaintiff is a federal question. Whether a patent has

been assigned is a question of federal law. In re Supernatural Foods, LLC, 268 B.R. 759, 79798 (Bankr. M.D. La. 2001). The validity of the assignment of a patent is a question arising under the patent laws. Crown Die & Tool CO. v. Nye Tool & Machine Works, 261 U.S. 24, 33 (U.S. 1923). V. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff prays this Court to grant all relief requested herein, and all such other and further relief, in law or in equity, to which Plaintiff, Dr. Kenneth Wilson, may show himself to be justly entitled. Respectfully submitted, VETHAN LAW FIRM, PC By: /s/charlesmrvethan__ Charles M.R. Vethan Attorney-in-Charge Texas Bar No: 00791852 Southern District Bar No: 19566 Of Counsel VETHAN LAW FIRM, PC 3501 Allen Parkway Houston, Texas 77019 Telephone: (713) 526-2222 Telecopier: (713) 526-2230

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