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Case 2:14-cv-00903-JRG Document 67 Filed 04/17/15 Page 1 of 6 PageID #: 2070
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`v.
`
`
`SERVICENOW, INC.,
`
`
`
`
`Defendant.
`
`
`
`JOINT CLAIM CONSTRUCTION AND PREHEARING STATEMENT
`
`In accordance with Patent Rule 4-3 and the Court’s Docket Control Order of February 10,
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`2015 (Dkt. 46), the parties hereby submit this Joint Claim Construction and Prehearing
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`Statement. In accordance with Patent Rule 4-2(c), the parties met and conferred on several
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`occasions for the purposes of narrowing the issues and finalizing preparation of this Joint Claim
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`Construction and Prehearing Statement.
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`A. Agreed-Upon Constructions
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`The parties conducted meet-and-confers and have been able to reach agreement regarding
`
`the construction of the following claim terms/phrases in the asserted patents. The chart below
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`provides the construction of those claim terms, phrases, or clauses on which the parties agree:
`
`U.S. Patent 7,062,683
`
`Agreed-Upon Construction
`
`“mat”
`
`“east”
`
`“impact graph”
`
`“impact policy”
`
`McKool 1084507v1
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`“root”
`
`“least”
`
`“topology or architecture of a specific fault
`model”
`“rule, or set of rules, for assessing the impact
`on a fault model node based on the status or
`
`1
`
`
`CIVIL ACTION NO. 2:14-CV-903-JRG
`Jury Trial Demanded
`
`
`
`
`
`
`
`BMC SOFTWARE, INC.,
`
`
`
`
`Plaintiff,
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`

`
`Case 2:14-cv-00903-JRG Document 67 Filed 04/17/15 Page 2 of 6 PageID #: 2071
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`
`“inference policy”
`
`
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`condition of the node’s immediately up-stream
`neighboring nodes”
`“rule, or set of rules, for inferring the status or
`condition of a fault model node based on the
`status or condition of the node’s immediately
`down-stream neighboring nodes”
`
`B. Disputed Claim Constructions
`
`Exhibits A and B, attached hereto, identify the disputed claim terms.
`
`Exhibit A provides BMC’s identification of intrinsic and extrinsic evidence supporting its
`
`proposed constructions, as required by Patent Rule 4-3(b).
`
`Exhibit B provides ServiceNow’s identification of intrinsic and extrinsic evidence
`
`supporting its proposed constructions, as required by Patent Rule 4-3(b).
`
`C. Anticipated Length of Time for the Claim Construction Hearing
`
`BMC anticipates that the Claim Construction Hearing will take no longer than two (2)
`
`hours. ServiceNow anticipates that the Claim Construction Hearing will take no longer than four
`
`(4) hours.
`
`D. Identification of Witnesses
`
`BMC may rely upon testimony (by declaration) from Dr. Hugh Smith and/or Dr. Ben
`
`Bederson and/or Dr. Mark Jones. Each may testify about their backgrounds, the background of
`
`the subject matter discussed in the patents-in-suit, and the skill level of one of ordinary skill in
`
`the art. Each may also testify in support of BMC’s proposed claim constructions, including
`
`addressing the intrinsic evidence in the patents and the prosecution histories and extrinsic
`
`evidence. See Exhibit A. In addition to the above, each may offer testimony in response or in
`
`rebuttal to any arguments or expert testimony offered by ServiceNow, including any argument
`
`that any term is indefinite or that one of ordinary skill in the art would not be able to discern the
`
`McKool 1084507v1
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`2
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`

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`Case 2:14-cv-00903-JRG Document 67 Filed 04/17/15 Page 3 of 6 PageID #: 2072
`
`
`boundaries of any term. BMC may submit its declaration with its opening Markman brief, as the
`
`parties’ have agreed.
`
`ServiceNow may rely upon testimony (by declaration) from Dr. Arthur Brody, Dr. Tal
`
`Lavian, Dr. Saul Greenberg, and/or Dr. Brad A. Myers. Each may testify about their
`
`backgrounds, the background of the subject matter discussed in the patents-in-suit, and the skill
`
`level of one of ordinary skill in the art. Each may also testify in support of ServiceNow’s
`
`proposed claim constructions and indefiniteness contentions, including addressing the intrinsic
`
`evidence in the patents and the prosecution histories and extrinsic evidence. See Exhibit B. In
`
`addition to the above, each may offer testimony in response or in rebuttal to any arguments or
`
`expert testimony offered by BMC, including any argument or opinion regarding claim
`
`construction and any argument or opinion that any term is not indefinite.
`
`E. Other Issues
`
`At present, the parties are unaware of any additional issues that would require the
`
`scheduling of a pre-hearing conference.
`
`
`
`McKool 1084507v1
`
`3
`
`

`
`Case 2:14-cv-00903-JRG Document 67 Filed 04/17/15 Page 4 of 6 PageID #: 2073
`
`
`
`
`
`
`
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`
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Sam Baxter
`
`Samuel F. Baxter
`Texas State Bar No. 01938000
`sbaxter@mckoolsmith.com
`MCKOOL SMITH, P.C.
`104 East Houston, Suite 300
`Marshall, Texas 75670
`Telephone: (903) 923-9000
`Facsimile: (903) 923-9099
`
`
`
`Holly E. Engelmann
`hengelmann@mckoolsmith.com
`McKOOL SMITH, P.C.
`300 Crescent Court, Suite 1500
`Dallas, Texas 75201
`Telephone: (214) 978-4000
`Fax: (214) 978-4044
`
`Pierre Hubert
`phubert@mckoolsmith.com
`McKOOL SMITH, P.C.
`300 W. 6th St., Suite 1700
`Austin, Texas 78701
`Telephone: (512) 692-8700
`Facsimile: (512) 692-8744
`
`
`
`Philip J. Lee
`plee@mckoolsmithhennigan.com
`McKool Smith Hennigan, P.C.
`865 South Figueroa Street, Suite 2900
`Los Angeles, CA 90017
`Telephone: (213) 694-1153
`Facsimile: (213) 694-1234
`
`ATTORNEYS FOR PLAINTIFF
`BMC SOFTWARE, INC.
`
`
`
`Dated: April 17, 2015
`
`
`
`
`
`
`
`
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`
`
`
`
`
`
`
`
`Robert A. Cote
`rcote@mckoolsmith.com
`Radu A. Lelutiu
`rlelutiu@mckoolsmith.com
`David R. Dehoney
`ddehoney@mckoolsmith.com
`Kevin Schubert
`kschubert@mckoolsmith.com
`Dana E. Vallera
`dvallera@mckoolsmith.com
`McKOOL SMITH, P.C.
`One Bryant Park, 47th Floor
`New York, New York 10036
`Telephone: (212) 402-9400
`Fax: (212) 402-9444
`
`Brandon M. Jordan
`bjordan@mckoolsmith.com
`McKOOL SMITH, P.C.
`1999 K Street, NW, Suite 600
`Washington, DC 20006
`Telephone: (202) 370-8302
`Facsimile: (202) 370-8344
`
`
`
`McKool 1084507v1
`
`4
`
`

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`Case 2:14-cv-00903-JRG Document 67 Filed 04/17/15 Page 5 of 6 PageID #: 2074
`
`
`
`
`
`
`/s/ Deron R. Dacus
`Deron R. Dacus
`Texas State Bar No. 00790553
`THE DACUS FIRM, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, TX 75701
`Telephone: (903)705-1117
`Fax: (903) 705-1117
`ddacus@dacusfirm.com
`
`Heidi L. Keefe (CA Bar 178960)
`Mark R. Weinstein (CA Bar 193043)
`COOLEY LLP
`3175 Hanover Street
`Palo Alto, CA 94304
`Telephone: (650) 843-5000
`hkeefe@cooley.com
`mweinstein@cooley.com
`
`Michael G. Rhodes (CA Bar 116127)
`COOLEY LLP
`101 California Street
`San Francisco, CA 94111
`Telephone: (415) 693-2000
`mrhodes@cooley.com
`
`Phillip E. Morton (VA Bar No. 71299)
`COOLEY LLP
`One Freedom Square
`Reston Town Center
`11951 Freedom Drive
`Reston, VA 20190-5656
`Telephone: (703) 456-8000
`pmorton@cooley.com
`
`ATTORNEYS FOR DEFENDANT
`SERVICENOW, INC.
`
`McKool 1084507v1
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`5
`
`

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`Case 2:14-cv-00903-JRG Document 67 Filed 04/17/15 Page 6 of 6 PageID #: 2075
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`
`CERTIFICATE OF CONFERENCE
`
`I hereby certify that counsel for Plaintiff and counsel for Defendant have conferred
`
`regarding the forgoing Joint Claim Construction and Prehearing Statement.
`
`
`
`/s/ Kevin Schubert
`Kevin Schubert
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that true and correct copies of the foregoing document were
`
`served via electronic mail and were thereby made available to all counsel of record.
`
`
`
`/s/ Kevin Schubert
`Kevin Schubert
`
`
`
`
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`McKool 1084507v1
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`6

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