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Parts I, II, III, IV, V and VI have all focused on who first conceived of the device that was ultimately used to cap the blown out Macondo Well after the Deepwater Horizon disaster. While the reader may draw his or her own conclusion as to who was “first in time,” there is no question that the ultimate solution used by BP was strikingly similar to what Chris McIntyre shared with the company on May 14, 2010. There can also be no dispute that BP subsequently filed for patent protection of the device in order to profit from its development. Even the District Court seems to imply that it was McIntyre’s idea in the first place:

“…this Court finds that even if Plaintiff’s [McIntyre’s] idea inspired Defendants’ ultimate capping method, Plaintiff has failed to demonstrate that his idea was sufficiently original and novel to confer a benefit to Defendants.” – Judge Ralph Beistline, Order Granting Motion to Dismiss in Case No. 3:13-cv-149 RRB at 7.

Wait…, what? No benefit?

In March 2015, Judge Ralph Beistline of the United States District Court for the District of Alaska dismissed McIntyre’s case, saying that even if BP used McIntyre’s idea, the idea itself was of no benefit to the company, and in any event, McIntyre had failed to protect the idea by not entering into a written contract with BP or by applying for a patent prior to turning it over to the company.

Of course, we respectfully disagree with Judge Beistline’s ruling and have appealed same to the United States Court of Appeals for the Ninth Circuit in San Francisco. In our opinion, the “benefit conferred” to BP by McIntyre through revealing his unique design (connection at the flex joint above the LMRP with a ventable valve) was immense.

Tick Tock

First, each and every day that the Macondo Well spewed crude oil into the Gulf of Mexico cost BP hundreds of millions of dollars in Clean Water Act fines, natural resource damage penalties, and lost profits. The only method certain to halt the flow was the drilling of a relief well, a process that was not completed until September 19, 2010, over sixty days after BP used McIntyre’s device (or one very similar to it) to cap the well on July 15, 2010. But for this novel design, the disaster would have continued for at least another two months, with BP hemorrhaging cash each day. Simply put, if BP was “inspired” by McIntyre’s design (as Judge Beistline suggests is plausible), then McIntyre played a key role in keeping BP out of bankruptcy court.

And if McIntyre’s idea was indeed of no benefit to the company, then why has BP filed for patent protection of same? Who needs to protect a worthless idea? Fact is, this intellectual property is worth billions, as now the device is required safety equipment on offshore rigs around the world. Oil Spill Response Limited (OSRL), a company owned by several oil majors, now offers capping stacks similar to McIntyre’s design, as does another entity called the Marine Well Containment Company (MWCC). BP is a shareholder of both companies.

The Court held that when McIntyre conveyed his concept to BP he did so without providing detailed design drawings, engineering specifications and design tolerances. In essence, the Court held that McIntyre’s idea was just that, a simple idea that would require significant additional work (“embellishment” for those “in the art”) to implement. Hence, according to the Court, McIntyre had not really revealed anything of value to BP. We disagree.

In his telephone and email communications with BP, McIntyre knew that he was corresponding with seasoned oil and gas technicians and engineers. These were not folks that needed to be spoon fed the math. In fact, if BP was indeed “inspired” by McIntyre’s design, which he revealed to the company on May 14, 2010, then it only took BP four days (May 18, 2010) to fully assemble the device – proof positive that significant embellishment was not necessary to take McIntyre’s concept from design to production (this then begs the question – “What took BP so long – July 15 – to cap the Well?” – but I digress).

An idea is a protectable property interest if it is sufficiently developed to be ready for immediate use without additional embellishment. If an idea requires extensive investigation, research, and planning before it is ripe for implementation, it is not concrete (and thus not compensable). Clearly, as evidenced by the four day build time, McIntyre’s device did not require extensive investigation, research, and planning before it was ripe for implementation.

Finders Keepers?

Both BP and the Court have admonished McIntyre for not fully perfecting his design before revealing it to the company. But remember, this all took place in the midst of a national emergency of unprecedented scale. McIntyre knew that his basic design (connecting a ventable valve to the flex joint flange above the LMRP) would be understood and appreciated by those schooled in oil and gas exploration. There was no need to delay his submission in order to gussy up the presentation. The same is true with regard to McIntyre’s failure to file for a patent before contacting BP. There simply was no time for McIntyre to “lawyer up” as suggested by BP. The Gulf of Mexico was dying.

Fact is, no one in the oil and gas industry had ever contemplated the method by which McIntyre’s device would connect to the doomed well (at the flex joint flange above the LMRP). Indeed, BP’s own experts testified to same during the company’s 2013 Clean Water Act trial.

The following is trial testimony from BP’s lead employee in charge of well control, Mark Mazzella:

Attorney: “Prior to the Deepwater Horizon event, had you, in your entire career, in the well control industry, ever seen a document, paper, presentation, that suggested that a capping stack could or should be landed on the flex joint above the LMRP [McIntyre’s design]?”

Mazzella: “Absolutely not.”

Yet in his dismissal of McIntyre’s case, Judge Beistline said:

 “… [McIntyre] has failed to demonstrate that his idea [of landing on the flex joint above the LMRP] was sufficiently original and novel …”

BP’s Mark Mazzella went on to say that the technology associated with connecting at the flex joint – McIntyre’s approach – had not been explored prior to the Deepwater Horizon disaster. Piling on, BP’s employee in charge of well connections, Trevor Smith, testified that prior to the disaster no one had attempted to connect a ventable valve to the flex joint flange. As such, it is, respectfully, difficult to understand how Judge Beistline determined that McIntyre’s approach was not “sufficiently original and novel.” In our opinion, and apparently in the opinion of BP’s Mark Mazzella and Trevor Smith – both testifying under oath – McIntyre’s solution was the epitome of an “original and novel” one, as even according to BP, it had never been tried before.

Following BP’s argument, anyone who disclosed information to BP for the Deepwater Horizon Macondo Well emergency unwittingly gave up their rights to profitable ideas by virtue of their failure to demand confidentiality or apply for a patent. But neither the public nor Chris McIntyre were interested in giving BP valuable ideas so that BP could line its pockets. McIntyre disclosed valuable ideas to address the emergency at the Macondo Well and to serve the interests of the United States and the people of the Gulf. To the extent BP benefited from McIntyre’s valuable input, BP should be obligated to pay for it.

The case is Christopher McIntyre v. BP Exploration and Production, et al., Ninth Circuit Court of Appeals Docket #: 15-35234.

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