Case 2:14-cv-00903-JRG Document 99-19 Filed 05/29/15 Page 1 of 19 PageID #: 3422
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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` BMC Software, Inc.,
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` Plaintiff,
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`Civil Action No. 2:14-CV-00903-JRG
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`Jury Trial Demanded
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`v.
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` ServiceNow, Inc.,
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`
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` Defendant.
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`DECLARATION OF DR. HUGH SMITH IN SUPPORT OF
`BMC’S OPENING CLAIM CONSTRUCTION BRIEF
`(’683 AND ’898 PATENTS)
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`1
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`

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`Case 2:14-cv-00903-JRG Document 99-19 Filed 05/29/15 Page 2 of 19 PageID #: 3423
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`I, Hugh Smith, declare and state as follows:
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`1.
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`I am currently the Director of Computer Engineering at California Polytechnic State
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`University. I received a Ph.D. in Computer Science from Michigan State University in 1999. I
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`have been active in the Computer Science, Computer Engineering, and Information Technology
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`fields for the past 25 years. I attach a copy of my Curriculum Vitae as Exhibit 1.
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`2.
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`I have been retained to provide expert opinions on behalf of BMC Software, Inc. in this
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`matter with regard to the construction of certain terms and phrases of the 6,816,898 (the “’898
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`patent”) and 7,062,683 (the “’683 patent”) from the standpoint of the person of ordinary skill in
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`the art at the times of these respective inventions.
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`3.
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`I have authored a number of papers in the field of Information Technology and have
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`attended a number of conferences related to these subjects, as shown in my Curriculum Vitae.
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`4.
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`I hold a doctoral degree (PhD) in Computer Science, granted by Michigan State
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`University (MSU) in 1999, as well as a Master’s degree in Computer Science from MSU and a
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`Bachelor’s degree in Computer Science from Xavier University obtained in 1985.
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`5.
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`I am currently an Associate Professor at California Polytechnic State University (Cal
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`Poly) were I have been a faculty member since 2000. From 2009-2013, I was the Director of the
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`Computer Engineering program at Cal Poly. My classes have included circuit board design,
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`operating systems topics including system level programming and computer networks.
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`6.
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`Over the last 30 years I have worked on a number of hardware and software related
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`projects. During this time I worked at Procter & Gamble in their Management Systems Division.
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`I worked on development and support of large systems. This included managing a team
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`responsible for monitoring and troubleshooting a country wide networked system. I have also
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`2
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`taught computer networks at Cal Poly for the over the last 15 years. This includes two
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`undergraduate computer networking courses and a graduate computer networking course.
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`7.
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`I have reviewed U.S. Patent Nos. 6,816,898 (the “’898 patent”) and 7,062,683 (the “’683
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`patent”), including the claims, specification, prosecution history, and intrinsic references cited
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`during prosecution of these patents. It is my opinion that I am a person of ordinary skill in the
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`art regarding these patents, and I offer below my opinions regarding how a person of ordinary
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`skill in the art would have understood certain claim terms at the time of the patents.
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`’898 Patent
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`“script”
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`8.
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`A person having ordinary skill in the art at the time of the patent would have understood
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`“script,” in light of the intrinsic record, to be a “set of instructions, procedures, and/or functions
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`and related data adapted for implementation in a suitable computer language.”
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`9.
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`My opinion is supported by the intrinsic record, including a patent cited during the
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`prosecution history and on the cover of the ’898 patent to Bromberg (U.S. Patent No. 6,052,694).
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`I attach Bromberg as Exhibit 2. A portion of the Bromberg reference is cited below:
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`As used in this document, the terms ‘module’ and ‘script’ refer to a
`set of instructions, procedures, and/or functions and related
`data adapted for implementation in a suitable computer
`language such as C, C++, Java, or any other appropriate
`development language.
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`Bromberg at 2:43-50 (cited in the 9/26/2003 Office Action, attached as Exhibit 3).
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`10.
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`I understand that ServiceNow is proposing that “script” should be construed as
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`“instructions written in a plain text, interpretable language.” I disagree. ServiceNow’s
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`construction is too narrow and seeks to limit the term “script” to only a “plain text, interpretable
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`language,” language that does not appear in the ’898 patent specification. In contrast to
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`ServiceNow’s construction, the ’898 patent states that “the present invention is not described
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`3
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`with reference to any particular programming language.” ’898 patent, Col. 3:63-65. In addition,
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`the ’898 patent states, “The script in FIG. 4 is solely for llustration [sic], not to restrict the type of
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`scripts that can be accepted nor the type of data that can be defined within the scripts.” ’898
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`patent, ’898 patent, Col. 9:60-62.
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`“script-based program”
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`11.
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`A person having ordinary skill in the art at the time of the patent would have understood
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`“script-based program,” in light of the intrinsic record, to be a “program based on a script.”
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`12.
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`I understand ServiceNow’s construction is “a set of instructions written in a plain text,
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`interpretable language.” I disagree with this construction, for the reasons discussed above with
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`respect to the term “script” and also because it reads out the word “program.”
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`“service monitor”
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`13.
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`A person having ordinary skill in the art at the time of the patent would have understood
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`“service monitor,” in light of the intrinsic record, to be a “program for monitoring a device,
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`application or server in a network.”
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`14.
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`This construction is consistent with the specification which provides that the “new
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`service monitor can then be activated to monitor any applicable devices, applications or servers
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`in the network.” ’898 patent, Col. 8:52-54. The claims also recite “integrating the program to
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`the performance management system as a service monitor.” ’898 patent, Col. 13:28-29.
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`15.
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`I understand ServiceNow’s construction is “a program running on the performance
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`management system that automatically collects user-defined data from the components of the
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`network.” I disagree with this construction.
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`16.
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`A person having ordinary skill in the art at the time of the patent reviewing the intrinsic
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`record would not define a “service monitor” as “automatically collect[ing] user-defined data” or
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`4
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`by definition “running on the performance management system,” as ServiceNow has defined it.
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`To the contrary, the specification teaches, in one embodiment, that the “service monitor” may
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`appear in a list of monitors and the user must activate it before collection of data. ’898 patent,
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`Col. 10:46-11:6.
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` “periodically”
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`17.
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`To the extent a construction is necessary for this term, a person having ordinary skill in
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`the art at the time of the patent would have understood “periodically,” in light of the intrinsic
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`record, to mean “at an established interval of time.”
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`18.
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`This construction is consistent with the intrinsic evidence which provides that the data
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`collection may occur periodically at intervals such as “5 minutes” (’898 patent, Col. 8:1-2) or
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`“15 minutes” (’898 patent, Fig. 6C).
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`19.
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`I have also reviewed other intrinsic evidence and found it to be consistent with the
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`construction above. For example, U.S. Patent 5,796,633 (attached as Exhibit 4), which is cited
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`on the cover of the ’898 patent, recites “periodically . . . the periodic comprising a predetermined
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`interval.” ’633 patent, Col. 15:26-30. Another reference, U.S. Patent No. 6,405,327 (attached as
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`Exhibit 5), which is also cited on the cover of the ’898 patent, states that data is “periodically
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`gathered” (’327 patent, Col. 5:46) and states that at “a predefined period of time (by default,
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`every 15 minutes), the performance monitoring procedure ‘wakes up’ and gathers performance
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`information.” ’327 patent, Col. 5:65-67.
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`20.
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`It is my opinion that a person having ordinary skill in the art at the time of the patent
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`reading the claims of the ’898 patent, in light of the specification and prosecution history, would
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`have been informed with reasonable certainty about the scope of the invention. Further, even
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`without the description in the specification and other intrinsic evidence regarding “periodically,”
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`5
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`the term is a well-known term and would not have needed further description as to what it
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`means.
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`“meta data”
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`21.
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`A person having ordinary skill in the art at the time of the patent would have understood
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`“meta data,” in light of the intrinsic record, to mean “data that describes other data.”
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`22.
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`For example, the IEEE dictionary defines “metadata” as “data that describes other data.”
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`IEEE Authoritative Dictionary of Standard Terms, 7th Edition, 2000, at p. 688. I have attached
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`the relevant pages to this declaration with Exhibit 6. The ’898 patent also teaches “meta data” as
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`“data that describes other data.” ’898 patent, Col. 2:22-29.
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`23.
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`I understand that ServiceNow has proposed “data about other data.” In my opinion,
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`however, a person having ordinary skill in the art at the time of the patent would have understood
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`“meta data” as “data that describes other data,” consistent with the IEEE’s definition.
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`“business-oriented performance management data of the components”
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`24.
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`To the extent a construction is necessary for this term, a person having ordinary skill in
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`the art at the time of the patent would have understood “business-oriented performance
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`management data of the components,” in light of the intrinsic record, to mean “business-oriented
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`information pertaining to performance management of the components.”
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`25.
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`I understand that ServiceNow has proposed “data of the components about commercial or
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`business performance distinct from network infrastructure data and meta data.”
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`’683 Patent
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`“node” and “nodes”
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`26.
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`A person having ordinary skill in the art at the time of the patent would have understood
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`“node,” in light of the intrinsic record, to mean “operatively coupled monitored component.”
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`6
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`Likewise, a person having ordinary skill in the art at the time of the patent would have
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`understood “nodes” to mean “operatively coupled monitored components.”
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`27.
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`These constructions are consistent with the patentee’s definition in the patent:
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`[Claim] 47. An enterprise including a plurality of operatively
`coupled monitored components, hereinafter referred to as nodes,
`comprising:
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`’683 patent, Col. 14:62-64.
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`28.
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`Other passages from the intrinsic record further confirm the above construction of
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`“node.” For example, the ’683 patent claims state “receive an event notification from a first
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`node.” ’683 patent, Col. 13:16-18.
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`29.
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`I understand ServiceNow’s construction of “node” is “representation of a condition in a
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`fault model.” I disagree with ServiceNow’s construction. This is not the patentee’s definition,
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`which I provided above. I also understand ServiceNow has not provided a construction for
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`“nodes.”
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`30.
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`ServiceNow’s construction misconstrues the specification. The ’683 patent teaches an
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`embodiment where a node may “represent a ‘condition’ of a modeled component.” (=’683
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`patent, Col. 3:59-62. The nodes, however, must still be “operatively coupled monitored
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`components.” For example, the ’683 patent specification teaches “communicatively coupled
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`nodes” (’683 patent, Col. 2:53-59). In addition, the ’683 patent specification teaches a “node
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`that received the alarm.” ’683 patent, Col. 9:18-22.
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`31.
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`I further disagree with ServiceNow’s construction because it includes “in a fault model,”
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`which would be redundant of the claim language and would add confusion for the jury because
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`the construction would be circular in light of the claim language. For example, the ’683 patent
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`7
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`claims recite “node in the fault model.” ’683 patent, Col. 17:31-32. In addition, the ’683 patent
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`claims recite a “fault model having a plurality of nodes” (’683 patent, Col. 11:51; 15:64-65).
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`32.
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`I further disagree with ServiceNow’s construction because it defines “nodes” as “in the
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`fault model,” even though the ’683 patent specification does not so limit “nodes.” “Nodes,” as
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`described above, are “operatively coupled monitored components” not limited to being “in a
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`fault model.” For example, the ’683 patent describes “nodes in the enterprise whose operational
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`condition are impacted by the prior determined failed nodes.” ’683 patent, abstract. In addition,
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`the ’683 patent specification states that “nodes” may be “in an Impact Graph.” ’683 patent, Col.
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`4:9-11.
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` “fault model”
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`33.
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`A person having ordinary skill in the art at the time of the patent would have understood
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`“fault model,” in light of the intrinsic record, to mean “directed graph (aka digraph) for
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`monitoring faults.”
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`34.
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`It is my understand that ServiceNow has proposed that “fault model” means “a directed
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`graph (aka digraph) with nodes representing conditions of modeled components and arrows from
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`a node to nodes impacted by that node.”
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`35.
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`ServiceNow appears to agree that the proper construction of “fault model” should include
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`“directed graph (aka digraph).” Indeed, the ’683 patent states “a Fault Model (a directed graph
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`or digraph).” ’683 patent, Col. 3:59-62.
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`36.
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`The construction I provide above also specifies that the “fault model” claimed in the ’683
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`patent is “for monitoring faults.” This is consistent with the claim language “fault” model and
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`the ’683 patent specification. ’898 patent, Col. 1:5-52.
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`8
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`37.
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`I disagree with ServiceNow’s construction for a number of reasons. First, ServiceNow’s
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`construction limits “nodes” to “representing conditions of modeled components,” which, as
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`described above in the “nodes” section, is an incorrect interpretation of this term. “Nodes” are
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`“operatively coupled monitored components,” as the patentee has defined the term “nodes.”
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`’683 patent, Col. 14:62-64 (“An enterprise including a plurality of operatively coupled monitored
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`components, hereinafter referred to as nodes”).
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`38.
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`In addition, including “nodes” within the definition of “fault model” is redundant of the
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`claim language and, as discussed above, would add confusion because the construction would be
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`circular in light of the claim language. As described above, the claims recite, for example, a
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`“fault model having a plurality of nodes.” ’683 patent, Col. 11:51, Col. 15:64-65; 17:29-30.
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`39.
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`I further disagree with ServiceNow’s construction because it requires “arrows from a
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`node to nodes impacted by that node.” Requiring “arrows from a node to nodes impacted by that
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`node” is inconsistent with the intrinsic evidence. The claim language requires a fault model
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`implemented by a computer, where the concept of “arrows” for human readability is not
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`pertinent. For example, claim 24 requires instructions for causing a programmable control
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`device to perform an up-stream analysis of the fault model. The specification also illustrates an
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`exemplary fault model implemented in source code. Fig. 6B; ’683 patent, Col. 3:26-28. There is
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`no teaching that the source code shown below, which implements an exemplary fault model, has
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`arrows.
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`40.
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`Further, I have reviewed the prosecution history, and the Patent Examiner did not require
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`“arrows” when he applied the term “fault model.” For example, in the December 15, 2005
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`Office Action (attached as Exhibit 7), the Patent Examiner applied the claims to a reference to
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`Micromuse, “Precise Root Cause Analysis: Taking the guesswork out of solving network faults
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`and failures.” I have attached Micromuse as Exhibit 8. I have reviewed the Micromuse
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`reference, and I did not find teaching of “arrows” in that reference. I have also reviewed the file
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`history, and I did not find any place where the Patent Examiner or the Patentee required “arrows”
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`for the term “fault model,” and certainly not “arrows” in the specific configuration required by
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`ServiceNow.
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`“fault model having a plurality of nodes”
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`41.
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`A person having ordinary skill in the art at the time of the patent, in light of the intrinsic
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`record, would have understood “fault model having a plurality of nodes” to mean “directed graph
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`10
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`(aka digraph) for monitoring faults, having a plurality of operatively coupled monitored
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`components.”
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`42.
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`The above construction tracks my earlier constructions for “fault model” and “nodes.” I
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`understand that ServiceNow proposes that the Court construe “fault model” and “nodes” but that
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`the phrase should otherwise be left for plain meaning. Inserting ServiceNow’s constructions for
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`“fault model” and its believed construction of “nodes” (as described earlier, I understand
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`ServiceNow has only provided a construction for “node,” not “nodes”), yields a result that is
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`circular and confusing because it includes limitations for “fault model” and “node” that should
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`not be part of those terms and defines each circularly in relation to each other.
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`“a root cause”
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`43.
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`A person having ordinary skill in the art at the time of the patent would have understood
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`“a root cause,” in light of the intrinsic record, to mean “a fundamental source of a problem.”
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`44.
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`The intrinsic evidence is consistent with the construction above. For example, the ’683
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`patent specification provides “a router failure may generate a ‘router down’ event and a large
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`number of ‘lost connectivity’ events for components that communicate through the failed router.
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`In this scenario, the router failure is the fundamental or ‘root cause’ of the problem and the
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`lost connectivity events are ‘sympathetic’ events.” ’683 patent, Col. 1:42-47.
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`45.
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`Other evidence in the intrinsic record confirms my construction of “a root cause.” For
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`example, U.S. Patent No. 6,072,777 (attached as Exhibit 9), which appears on the cover of the
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`’683 patent, provides that “[r]oot cause analysis is generally concerned with the identification of
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`a source of a problem in the network.” ’777 patent, Col. 5:42-45.
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`46.
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`I understand that ServiceNow’s construction is “a node with no upstream nodes in the
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`fault model indicating a failed status.”
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`11
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`47.
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`ServiceNow’s construction ignores the definition provided in the specification and the
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`other intrinsic evidence noted above. ServiceNow’s construction appears to be based on a
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`passage from the specification stating, “As indicated above, the most up-stream nodes having a
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`status value indicative of a failure are identified as the ‘root cause’ of the alarm event, while
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`those nodes down-stream from the identified root cause nodes having impact values indicative of
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`impact are identified as impacted.” ’683 patent, Col. 10:34-38. A person of ordinary skill in the
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`art at the time of the patent would not have understood this passage to define the term “a root
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`cause” but rather to provide an observation about where, in one embodiment, “root causes” may
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`be identified in an impact graph. My opinion that this passage is not a definition of “a root
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`cause” is further supported by the fact that elsewhere the specification states that the observation
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`above is only generally true: “In general, those furthest up-stream nodes in the Impact Graph
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`having a status value indicative of failure are identified as ‘root causes.’” ’683 patent, Col. 4:63-
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`65.
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`“enterprise”
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`48.
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`A person having ordinary skill in the art at the time of the patent would have understood
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`“enterprise,” in light of the intrinsic record, to mean “collection of hardware and software entities
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`in a computer network.”
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`49.
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`The above construction comes from the ’683 patent specification:
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`Contemporary corporate computer networks comprise a plurality
`of different computer platforms and software applications
`interconnected through a number of different paths and various
`hardware devices such as routers, gateways and switches . . . The
`collection of such entities ─ hardware and software ─ is often
`referred to as an ‘enterprise.’
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`
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`’683 patent, Col. 1:45-50.
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`12
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`50.
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`I understand ServiceNow’s construction is “collection of components that can be
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`monitored.”
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`51.
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`I understand that ServiceNow has identified the following passage as supporting its
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`position: “[i]n still other embodiments, the system being monitored is not a computer network.
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`For example, a mechanical system comprising pumps, valves and motors may benefit from the
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`claimed fault analysis method.” ’683 patent at Col. 11:32-35. This passage does not even use
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`the term “enterprise,” and ServiceNow does not explain how this passage re-defines the term
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`“enterprise.” Further, ServiceNow does not address the teaching in the next sentence to the
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`passage above which provides that “[o]ne of ordinary skill in the art will recognize that if a
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`‘system’ comprises at least some components that are monitored and these monitored
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`components communicate (in any desired fashion) to a module that performs the analysis, such a
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`system can benefit from the claimed invention.” ’683 patent, Col. 11:35-40. One of ordinary
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`skill in the art at the time of the patent would have understood this passage to refer to computer
`
`components that can communicate with a computer module for performing an analysis. In
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`addition, the ’683 patent teaches that the claimed invention may be used to analyze fault in a
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`computer network when a router fails and a number of components that communicate through
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`the failed router report a loss of connectivity (’683 patent, Col. 1:45-50) and the ’683 patent
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`teaches an embodiment of an enterprise with ATMs (’683 patent, Col. 7:31-34), but the claimed
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`invention is not limited to any particular embodiment.
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`52.
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`I further understand that ServiceNow has asserted that references to “claimed invention”
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`in the passage at Col. 11:32-35 allegedly makes it clear that the fault analysis method is
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`applicable to other types of enterprises and not simply computer systems or networks. Again, I
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`disagree that the passage or reference to the “claimed invention” re-defines “enterprise.”
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`Moreover, I note that the term “enterprise” only appears in certain claims. For example, the term
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`“enterprise” does not appear in claims 56-90.
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`53.
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`I also understand that ServiceNow has argued that the ’683 patent teaches an exemplary
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`enterprise with ATM devices having mechanical cash dispensing devices which ServiceNow
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`believes do not qualify as the type of computer hardware or software described in the
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`background section of the ’683 patent. In the exemplary enterprise with ATM devices described
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`in the ’683 patent, however, the ATM devices are operatively coupled and communicate “via a
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`satellite communication system.” ’683 patent, Col. 7:31-34. Therefore, I disagree with
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`ServiceNow that this embodiment does not teach hardware or software.
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`“enterprise fault analysis”
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`54.
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`A person having ordinary skill in the art at the time of the patent would have understood
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`“enterprise fault analysis,” in light of the intrinsic record, to mean “fault analysis in an
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`enterprise.”
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`55.
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`This construction is consistent with the intrinsic evidence. For example, the ’683 patent
`
`specification describes “using fault models for the monitoring, diagnosis and recovery of error
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`conditions in an enterprise computing system.” ’683 patent, Col. 3:34-39.
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`56.
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`I understand that ServiceNow has not offered a competing construction.
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`“up-stream”
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`57.
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`A person having ordinary skill in the art at the time of the patent would have understood
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`“up-stream,” in light of the intrinsic record, to mean “in the direction of cause.”
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`58.
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`The construction above is consistent with claim language. For example, claim 1 recites
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`“performing an up-stream analysis” in the direction of cause and reporting a “root cause.” ’683
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`patent, Col. 11:54-67.
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`59.
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`I understand ServiceNow has proposed the construction “in the direction of nodes that
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`can impact a given node in the fault model.”
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`60.
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`To the extent ServiceNow’s construction requires “nodes” (plural), I do not find such a
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`requirement in the intrinsic record. In contrast, the claim language recites, for example,
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`“wherein the act of identifying a second node further comprises identifying one or more nodes
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`that are most up-stream from the first node.” ’683 patent, Col. 12:37-39. In addition, the ’683
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`patent abstract provides that “an up-stream analysis is performed (beginning at the node
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`generating an alarm event) to identify one or more nodes that may be in failure.” Moreover, I
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`understand ServiceNow’s proposed construction of “performing an up-stream analysis of the
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`fault model” is “conducting an analysis of one or more nodes upstream from the first node.”
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`61.
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`I further disagree with ServiceNow’s construction because it includes the language “in
`
`the fault model.” This is redundant of the claim language and would only add confusion. For
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`example, claim 1 recites “performing an up-stream analysis of the fault model” and “performing
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`a down-stream analysis of the fault model.” ’683 patent, Col. 11:54-60.
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`“down-stream”
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`62.
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`A person having ordinary skill in the art at the time of the patent would have understood
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`“down-stream,” in light of the intrinsic record, to mean “in the direction of impact.”
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`63.
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`This construction is consistent with the intrinsic evidence. For example, claim 1 recites
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`“performing a down-stream” analysis in the direction of impact and “reporting at least one of the
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`identified nodes as impacted by the root cause of the received event notification.” ’683 patent,
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`Col. 11:59 – Col. 12:3.
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`64.
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`I understand ServiceNow has proposed the construction “in the direction of nodes that
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`can be impacted by a given node in the fault model.”
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`Case 2:14-cv-00903-JRG Document 99-19 Filed 05/29/15 Page 16 of 19 PageID #: 3437
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`65.
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`To the extent ServiceNow’s construction requires “nodes” (plural), I do not find such a
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`requirement in the intrinsic record. In contrast, the ’683 patent states, for example, “[w]ith up-
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`stream and down-stream analysis completed enterprise status, including identification of one or
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`more root-cause failures and identification of sympathetic event notifications, may be reported
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`(block 120). ’683 patent, Col. 4:60-63. Moreover, I understand ServiceNow’s construction of
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`“performing a down-stream analysis of the fault model” is “conducting an analysis of one or
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`more nodes downstream of the second node.”
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`66.
`
`I further disagree with ServiceNow’s construction because it includes the language “in
`
`the fault model.” This would be redundant of the claim language and would add confusion. For
`
`example, claim 1 recites “performing an up-stream analysis of the fault model” and “performing
`
`a down-stream analysis of the fault model.” ’683 patent, Col. 11:54-60.
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`“most up-stream”
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`67.
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`A person having ordinary skill in the art at the time of the patent would have understood
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`“most up-stream,” in light of the intrinsic record, to mean “most in the direction of cause.”
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`68.
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`The construction above tracks the construction for “up-stream” with the addition of the
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`term “most,” and I refer to my reasoning in the “up-stream” section for the proper construction
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`of this term. In my opinion, a person of ordinary skill in the art at the time of the patent would
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`have understood the term “most” when used in the phrase “most up-stream.”
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`69.
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`I understand ServiceNow’s construction for “most up-stream” is “having no nodes in the
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`direction of nodes that can impact a given node in the fault model.” In my opinion, this lengthy
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`construction unnecessarily adds words, would add confusion, and is inconsistent with the
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`intrinsic record.
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`Case 2:14-cv-00903-JRG Document 99-19 Filed 05/29/15 Page 17 of 19 PageID #: 3438
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`“performing an up-stream analysis of the fault model”
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`70.
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`A person having ordinary skill in the art at the time of the patent would have understood
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`the terms “up-stream” and “fault model” as I provide elsewhere in this declaration, but otherwise
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`would have understood the other words in the phrase to have their ordinary meaning.
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`71.
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`I understand ServiceNow has proposed that this phrase means “conducting an analysis of
`
`one or more nodes upstream from the first node.”
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`“performing a down-stream analysis of the fault model”
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`72.
`
`A person having ordinary skill in the art at the time of the patent would have understood
`
`the terms “down-stream” and “fault model” as I provide elsewhere in this declaration, but
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`otherwise would have understood the other words in the phrase to have their ordinary meaning.
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`73.
`
`I understand ServiceNow has proposed that this phrase means “conducting an analysis of
`
`one or more nodes downstream of the second node.”
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`“impact value”
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`74.
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`A person having ordinary skill in the art at the time of the patent would have understood
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`“impact value,” in light of the intrinsic record, to mean “value representing the extent of impact.”
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`75.
`
`This construction is consistent with the intrinsic evidence. The ’683 patent teaches that
`
`an “impact value” may be a Boolean value or a real number. The above construction covers both
`
`a Boolean value and a real number. The ’683 patent specification states, for example, that an
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`impact value may be a “Boolean to indicate whether a node is impacted or not-impacted by its
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`up-stream neighbors, or a real number such as 0.0 to 1.0).” ’683 patent, Col. 4:27-30. The ’683
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`patent further states that an impact value may be “any real number between 0.00 and 1.00” such
`
`as 0.51. ’683 patent, Col. 10:56-59. A real number represents a more precise extent (or degree)
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`of impact.
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`Case 2:14-cv-00903-JRG Document 99-19 Filed 05/29/15 Page 18 of 19 PageID #: 3439
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`76.
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`I understand ServiceNow has proposed for construction “value indicating whether a node
`
`is impacted or not impacted by its upstream neighboring nodes.”
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`77.
`
`I disagree with this construction to the extent it limits “impact value” to the Boolean
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`embodiment (“impacted” or “not impacted”) and excludes the real number embodiment.
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`“generating a graphical display”
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`78.
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`A person having ordinary skill in the art at the time of the patent would have understood
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`this “generating a graphical display,” in light of the intrinsic record, to mean “generating
`
`graphical information for display on a display device.”
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`79.
`
`I understand ServiceNow’s construction is “generating a representation of information for
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`display on a display device.”
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`80.
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`I disagree with ServiceNow’s construction for at least the reason that it appears to remove
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`“graphical” from its construction.
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`
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`18
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`Case 2:14-cv-00903-JRG Document 99-19 Filed 05/29/15 Page 19 of 19 PageID #: 3440
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`I declare under penalty of perjury under the laws of the United States of America that the
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`foregoing are my true and honest opinions.
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`
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`Dated: May 29, 2015 in San Luis Obispo, CA
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`
`__________________
`Dr. Hugh Smi