Enerpol, LLC v. Schlumberger Technology Corp.

• Court: Court of Appeals for the Federal Circuit
• Decided: March 31, 2020
• Docket: 19-1079
• Status: Unpublished

Opinion

Case: 19-1079 Document: 71 Page: 1 Filed: 03/31/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

ENERPOL, LLC, Plaintiff-Appellant

v.

SCHLUMBERGER TECHNOLOGY CORPORATION, Defendant-Cross-Appellant ______________________

2019-1079, 2019-1120 ______________________

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

Decided: March 31, 2020 ______________________

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

MAXIMILIAN A. GRANT, Latham & Watkins LLP, Wash- ington, DC, argued for defendant-cross-appellant. Also represented by GABRIEL BELL, ROBERT J. GAJARSA; GREGORY SOBOLSKI, San Francisco, CA. Case: 19-1079 Document: 71 Page: 2 Filed: 03/31/2020

______________________

Before REYNA, TARANTO, and STOLL, Circuit Judges. STOLL, Circuit Judge. These appeals arise from an action for patent infringe- ment. 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, request- ing dismissal of EnerPol’s appeal for lack of appellate ju- risdiction. 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 fractur- ing fluid.” ’491 patent, Abstract. Specifically, the patent describes methods “for increasing flow rate of wells by in- jecting a highly viscous material, which may be a thermo- plastic 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 well- bore 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. Case: 19-1079 Document: 71 Page: 3 Filed: 03/31/2020

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Figures 2(a)–(e) “illustrate pellets of degradable poly- mer with and without proppant and before and after coa- lescence 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 pel- lets 25 becomes the continuous or external phase and car- ries proppant 26 along with dispersed carrier fluid 28 into a fracture.” Id. at col. 9 ll. 1–5. Case: 19-1079 Document: 71 Page: 4 Filed: 03/31/2020

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 for- mation around a wellbore, the formation having a fracturing pressure, comprising: (a) transporting a degradable thermoplastic poly- mer 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 for- mation. ... 24. A method for hydraulic fracturing of a for- mation penetrated by a wellbore, comprising: (a) forming a slurry comprising a degradable ther- moplastic polymer in a solid form in a carrier fluid and placing the slurry in the wellbore; (b) with a displacement fluid having a selected spe- cific gravity, displacing the slurry down the well- bore 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 continu- ous liquid phase, to inject the continuous liquid phase into the formation to form a hydraulic frac- ture. Case: 19-1079 Document: 71 Page: 5 Filed: 03/31/2020

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Id. at col. 15 ll. 51–60, col. 17 l. 1–col. 18 l. 7 (emphases added). II EnerPol accused Schlumberger of infringing independ- ent 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: “poly- mer-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 accumu- lated 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 Par- ties’ 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 Case: 19-1079 Document: 71 Page: 6 Filed: 03/31/2020

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 dis- trict 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-contin- uous 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 liq- uid phase.” Id. at *10. The district court therefore con- strued “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 for- mation.” Id. at *11. Following the district court’s claim construction deci- sion, EnerPol moved for entry of final judgment of nonin- fringement. 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 ac- cused 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 for- mation.’” J.A. 2676. Case: 19-1079 Document: 71 Page: 7 Filed: 03/31/2020

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The district court granted EnerPol’s motion and adopted, in relevant part, EnerPol’s proposed final judg- ment. 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 in- fringement of claim 1 of the ’491 patent or its de- pendent 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 dis- placing 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, Ener- Pol 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, stat- ing, 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 for- mation” and, therefore, EnerPol “cannot meet the ‘continu- ous 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 terms that had been construed by the district court. EnerPol and Schlumberger appeal. Case: 19-1079 Document: 71 Page: 8 Filed: 03/31/2020

DISCUSSION I At the outset, Schlumberger contends that this court lacks jurisdiction to review EnerPol’s appeal from the dis- trict court’s noninfringement judgment under Jang v. Bos- ton Scientific Corp., 532 F.3d 1330 (Fed. Cir. 2008). Specifically, Schlumberger argues that EnerPol’s appeal should be dismissed because the judgment does not clearly or specifically explain how the district court’s constructions led to the noninfringement judgment, thus rendering any opinion by this court modifying those constructions advi- sory only. We disagree. Section 1295 governs appeals to this court “from a final decision of a district court.” 28 U.S.C. § 1295(a)(1). We have held that “to be appealable[,] a claim construction or- der must preclude a finding of infringement—a required element of the plaintiff’s cause of action.” Princeton Dig. Image Corp. v. Office Depot Inc., 913 F.3d 1342, 1348 (Fed. Cir. 2019). We explained that “[s]uch preclusion of infringement may be established by the patent owner’s binding admission that the accused activities are not in- fringing under the adopted claim construction.” Id. “[W]here a claim construction order does not resolve the is- sue of infringement,” however, it is “not a final decision, and, accordingly, is not appealable.” Id. (citations omitted). We conclude that the district court’s noninfringement judg- ment in this case resolves the infringement issue and thus constitutes an appealable final judgment. Schlumberger’s challenge to this court’s jurisdiction re- lies primarily on Jang, in which we held that a “judgment is reviewable only if it is possible for the appellate court to ascertain the basis for the judgment challenged on appeal.” Jang, 532 F.3d at 1334–35. In Jang, we concluded that because the stipulated judgment under review suffered from two ambiguities, it was appropriate to remand to the district court for clarification. Id. at 1335–36. First, it was Case: 19-1079 Document: 71 Page: 9 Filed: 03/31/2020

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“impossible to discern from the stipulated judgment which of the district court’s claim construction rulings would ac- tually affect the issue of infringement.” Id. at 1336. This ambiguity presented a “risk [of] rendering an advisory opinion as to claim construction issues that do not actually affect the infringement controversy.” Id. Second, the “stip- ulated judgment provide[d] no factual context for the claim construction issues presented by the parties,” namely, “how the disputed claim construction rulings relate to the accused products.” Id. at 1337. This missing context made it difficult for this court to understand the issues and pro- vide meaningful review. Schlumberger argues that EnerPol’s challenge to the district court’s claim construction of “polymer-continuous liquid phase” consists of two requirements: the displaced polymer must be (1) “in a liquid state”; and (2) “greater than fifty percent (50%) by volume” of the fracturing fluid. In Schlumberger’s view, EnerPol insisted on a vague judg- ment that fails to explain how and whether each of those two requirements led to noninfringement, and now chal- lenges both requirements on appeal while refusing to con- cede that either one was dispositive. According to Schlumberger, this court thus “lacks jurisdiction to edit the district court’s construction without knowing how such al- terations would, or even could, affect noninfringement.” Appellee’s Br. 24 (citing Jang, 532 F.3d at 1336–37). We are unpersuaded that the claim construction issues that EnerPol raises on appeal are unreviewable based on Jang. Contrary to Schlumberger’s characterization of the record, the district court construed the disputed claim term—“polymer-continuous liquid phase”—“as a single phrase” with a single meaning. Decision, 2018 WL 1335191, at *6. The district court’s judgment was indisput- ably based on that single phrase, and we review the district court’s constructions as a single phrase. That EnerPol di- vided the phrase into two clauses during claim construction Case: 19-1079 Document: 71 Page: 10 Filed: 03/31/2020

and did not stipulate to noninfringement as to each clause individually does not alter the district court’s single con- struction or remove our jurisdiction. In stark contrast to the district court’s final judgment in this case, the final judgment in Jang did not include any particular claim constructions that impacted infringement. Here, the district court’s judgment—in particular, para- graphs 6 and 7—establishes “with certainty which of the claim construction disputes actually ha[d] an effect on the infringement issue.” Jang, 532 F.3d at 1336. Paragraphs 6 and 7 of the judgment also expressly cite EnerPol’s in- fringement contentions, and therefore provide enough “context with respect to how the disputed claim construc- tion rulings relate to the accused products.” Id. at 1337. Accordingly, Jang does not support Schlum- berger’s argument. Schlumberger cites SanDisk Corp. v. Kingston Tech- nology Co., 695 F.3d 1348, 1354 (Fed. Cir. 2012), as addi- tional support for the principle that where “a party’s claim construction arguments do not affect the final judgment en- tered by the court, they are not reviewable.” Schlum- berger’s reliance on SanDisk is misplaced. In SanDisk, we rejected the patent owner’s argument that the district court’s judgment of noninfringement conferred appellate jurisdiction over patent claims that the patent owner had voluntarily withdrawn from the action and were not in- cluded in the judgment. Id. at 1353–54. By contrast, this case does not concern the issue of appellate jurisdiction over claim construction arguments impacting only with- drawn patent claims. Rather, the final judgment specifi- cally identifies both the asserted patent claims and the particular claim constructions impacting those claims. None of Schlumberger’s other cited authorities sup- ports its position. In Superior Industries, Inc. v. Masaba, Inc., the district court’s “summary judgment opinion and order d[id] not explain how its construction of any term Case: 19-1079 Document: 71 Page: 11 Filed: 03/31/2020

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would affect Superior’s infringement claims.” 553 F. App’x 986, 989 (Fed. Cir. 2014) (emphasis added). Thus, it was “impossible for [this court] to determine . . . which of the thirteen contested claim constructions would ‘actually af- fect’ the infringement analysis.” Id. Here, the final judg- ment expressly identifies the two claim constructions that affect EnerPol’s infringement claims. Likewise, the stipu- lated judgment of noninfringement at issue in Massachu- setts Institute of Technology & Electronics For Imaging, Inc. v. Abacus Software, 462 F.3d 1344, 1350 (Fed. Cir. 2006), “present[ed] only the question [of] whether the claim constructions adverse to the patentee were correct.” We concluded that we would neither “consider claim construc- tion issues decided in favor of the patent holder that the accused infringers contend were incorrect,” nor “address is- sues that [we]re pertinent only to dismissed claims of inva- lidity,” because revising the district court’s constructions in those respects “would not affect the judgment of non-in- fringement.” Id. (emphasis added). EnerPol’s appeal pre- sents no such issues. At bottom, we are not persuaded by Schlumberger’s challenge to our court’s jurisdiction. The district court’s fi- nal judgment clearly identifies the claim terms affecting the infringement analysis. Accordingly, we conclude that we have jurisdiction over EnerPol’s appeal. II We next consider EnerPol’s challenge to the district court’s constructions of the two disputed claim terms: “pol- ymer-continuous liquid phase” and “continuous liquid phase.” Claim construction is a question of law that this court reviews de novo. Trustees of Columbia Univ. v. Sy- mantec Corp., 811 F.3d 1359, 1362 (Fed. Cir. 2016). “The construction of claim terms based on the claim language, the specification, and the prosecution history are legal de- terminations.” Id. Based on our review of the intrinsic Case: 19-1079 Document: 71 Page: 12 Filed: 03/31/2020

evidence, we discern no reversible error in either of the dis- trict court’s constructions. A We agree with and adopt the district court’s construc- tion of “polymer-continuous liquid phase” in claim 1 and the claims that depend therefrom. The district court held that “polymer-continuous liquid phase” requires “polymer in a liquid state that is greater than fifty percent (50%) by volume of the fluid that does the fracturing in the for- mation.” Decision, 2018 WL 1335191, at *9. The claim lan- guage, specification, and prosecution history all support this construction. The claim language recites using the polymer-continu- ous liquid phase as a fracturing fluid that is displaced into the rock formation to form a hydraulic fracture. Indeed, claim 1 recites that the “degradable thermoplastic poly- mer” is converted from “a solid bulk form” to a “polymer- continuous liquid phase” after it is transported down the wellbore. ’491 patent col. 15 ll. 51–58. The claim further states that the “polymer-continuous liquid phase” is “dis- plac[ed] . . . into the formation at a pressure greater than the fracturing pressure of the formation.” Id. at col. 15 ll. 57–60. Statements in the specification support this view of the claims and indicate that the degradable polymer begins as a solid and then becomes liquid, and that the “polymer-con- tinuous liquid phase” acts as the fracturing fluid. For in- stance, the specification states: the degradable plastic may be placed in a wellbore near a formation to be fractured as a dispersed or discontinuous phase in a carrier fluid, so as to con- trol pressure losses in the wellbore during place- ment. The degradable plastic is then converted to a continuous or external phase and used as the Case: 19-1079 Document: 71 Page: 13 Filed: 03/31/2020

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fracturing fluid to form a fracture near a wellbore, such that it has high effective viscosity in the frac- ture. Id. at col. 3 ll. 58–65 (emphasis added). The specification also teaches that the degradable polymer: may begin as a rigid solid that is placed in the well- bore where it becomes a viscous liquid . . . that can be injected through the perforations and, acting as a fracturing fluid, exert fluid pressure on the rock around the well sufficient to hydraulically fracture the formation. Id. at col. 7 ll. 15–21 (emphasis added). Moreover, the specification expressly teaches that the degradable polymer becomes “continuous” when it is greater than about fifty percent by volume of the fracturing fluid. Specifically, the specification explains that the de- gradable polymer is “placed in the wellbore in the form of pellets or particles and transported through tubulars in the wellbore while dispersed in a low-viscosity carrying fluid.” Id. at col. 7 l. 64–col. 8 l. 1. The degradable polymer is then: accumulated in the wellbore at a selected location . . . so that it becomes a continuous or external phase. Some amount of carrying fluid will then be- come dispersed (i.e., become the discontinuous phase) in the degradable polymer . . . . The frac- tional volume of degradable polymer in the carry- ing fluid-degradable polymer mixture when it is being pumped down the well should be in the range such that polymer is not the continuous phase or such that lubricated flow of the polymer occurs in the tubing until the polymer is near the depth it is to be injected . . . . When degradable polymer be- comes the continuous or external phase, the fraction of degradable polymer will have increased to greater than about 50 percent by volume. Higher Case: 19-1079 Document: 71 Page: 14 Filed: 03/31/2020

degradable polymer fractions are preferred be- cause proppant concentration in the fracturing fluid and the fracture will be increased. Id. at col. 8 ll. 1–27 (emphasis added). As demonstrated by the teachings above, the specifica- tion uses the adjectives “continuous” and “external” synon- ymously when describing the degradable polymer. This suggests that the polymer encompasses the carrier fluid and then becomes the fracturing fluid. The specification’s description of the degradable polymer as “external” thus further supports the district court’s construction that the polymer be in a liquid state and greater than fifty percent by volume of the fracturing fluid. Indeed, we cannot see how the polymer could be both “external” and not liquid while also acting as the fracturing fluid. Figures 2(a)–(e) and their accompanying written dis- closures also support the district court’s construction. These figures show that the degradable polymer begins as solid pellets dispersed in the carrier fluid (i.e., “discontinu- ous” phase), which then accumulate and degrade, convert- ing to a “continuous” liquid phase that encompasses and “carries” the carrier fluid and any solid proppants before being injected into the rock formation to perform fractur- ing. See id. Fig. 2; see also id. at col. 9 ll. 1–5. While the prosecution history is not particularly help- ful in construing the term “polymer-continuous liquid phase,” it supports the district court’s construction over EnerPol’s broad construction. For instance, one of the pro- visional applications to which the ’491 patent claims prior- ity described Figures 2(a)–(e) as depicting “pellets of degradable polymer with and without proppant and before and after coalescence of the pellets to form a polymer-con- tinuous phase.” J.A. 2228 (emphasis added). The applicant then amended the written description to insert the term “liquid” such that the description of Figures 2(a)–(e) recited a “polymer-continuous liquid phase.” J.A. 2232. In Case: 19-1079 Document: 71 Page: 15 Filed: 03/31/2020

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addition, the applicant amended the provisional applica- tion’s written description to replace “thermoplastic” with “viscous liquid” when describing the degradable polymer after it is placed in the wellbore as a “rigid solid.” J.A. 2229, 2233. Furthermore, the applicant distinguished a prior art reference on the basis of volume by weight of the fracturing fluid to overcome a rejection under 35 U.S.C. § 103. Specifically, the applicant argued that the cited refer- ence taught a polymer concentration of “only about 4 per cent by weight, which is still . . . a dilute solution or disper- sion of polymer in liquid” and not a “polymer-continuous liquid phase” as recited in the then-pending claims of the application that would issue as the ’491 patent. J.A. 2980. Reading the claim language in light of the specification, and in further view of the prosecution history, we conclude that the district court’s construction is correct. EnerPol reiterates its two-part construction on appeal, slightly modifying its definition of “liquid phase” to recite: “a phase (e.g., polymer, mixture of polymer and liquid) that takes the shape of its container and has a fixed volume.” 1 Appellant’s Br. 29 (emphasis added). EnerPol argues that the district court erroneously defined “polymer-continuous liquid phase” based on a single embodiment in the specifi- cation. In EnerPol’s view, the disputed claim term does not require “liquid polymer” but merely requires that the “en- tire mixture exhibits liquid characteristics.” Id. We disagree. As discussed above, each time the speci- fication refers to a “polymer-continuous liquid phase,” it

1 EnerPol explained that its modified construction was meant to “clarif[y] that the ‘liquid phase’ . . . cannot be a gas,” in response to the district court’s claim construction decision. Appellant’s Br. 29 n.11. Schlumberger has not challenged this modification on appeal, and we conclude that this modification does not impact our analysis. Case: 19-1079 Document: 71 Page: 16 Filed: 03/31/2020

describes the polymer converting from a solid to liquid be- fore being displaced out of the wellbore and into the rock formation. It also repeatedly uses the terms “continuous” and “external” synonymously when describing the de- gradable polymer, further supporting the district court’s construction that the polymer be in a liquid state so that the polymer can be external in the fracturing fluid. The district court’s construction interprets the claim in light of the specification and does not, as EnerPol argues, import a limitation into the claim based on a single embod- iment. By contrast, EnerPol’s proposed construction ig- nores crucial teachings in the specification and would result in a polymer-continuous liquid phase that cannot function as a fracturing fluid. We have considered Ener- Pol’s other arguments but we do not find them persuasive. B The district court construed “continuous liquid phase” in claim 24 and the claims that depend therefrom to also mean “polymer in a liquid state that is greater than fifty percent (50%) by volume of the fluid that does the fractur- ing in the formation.” Decision, 2018 WL 1335191, at *11. There was no dispute that the term “continuous liquid phase” should be interpreted to have the same meaning as “polymer-continuous liquid phase.” Id. at *10. Accord- ingly, we discern no error in the district court’s construc- tion of “continuous liquid phase.” CONCLUSION For the foregoing reasons, we affirm the district court’s judgment of noninfringement. AFFIRMED COSTS No costs.