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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`1
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`DOCKET 6:11CV622
`
`JUNE 19, 2013
`
`9:10 A.M.
`
`BEAUMONT, TEXAS
`
`|||||||
`
`ROY-G-BIV CORPORATION
`
`VS.
`
`ABB, LTD., ET AL
`
`--------------------------------------------------------
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`VOLUME 1 OF 1, PAGES 1 THROUGH 179
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`REPORTER'S TRANSCRIPT OF CLAIM CONSTRUCTION HEARING
`
`BEFORE THE HONORABLE ZACK HAWTHORN
`UNITED STATES MAGISTRATE JUDGE
`
`--------------------------------------------------------
`
`APPEARANCES:
`
`FOR THE PLAINTIFF:
`
`RUSSELL A. CHORUSH
`HEIM, PAYNE & CHORUSH - HOUSTON
`600 TRAVIS STREET, SUITE 6710
`HOUSTON, TEXAS
`77002
`
`H. KIP GLASSCOCK, JR.
`KIP GLASSCOCK, ATTORNEY AT LAW
`550 FANNIN, SUITE 1350
`BEAUMONT, TEXAS
`77701
`
`GREGORY PHILLIP LOVE
`STEVENS, LOVE, HILL & HOLT
`222 N. FREDONIA STREET
`LONGVIEW, TEXAS
`75601
`
`DAVID MICHAEL UNDERHILL
`PATRICK MICHAEL LAFFERTY
`RICHARD S. MEYER
`BOIES, SCHILLER & FLEXNER
`5301 WISCONSIN AVENUE NW
`8TH FLOOR
`WASHINGTON, DC
`
`20015
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Claim Construction Hearing, 6-19-2013
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`1
`
`DOCKET 6:11CV622
`
`JUNE 19, 2013
`
`9:10 A.M.
`
`BEAUMONT, TEXAS
`
`|||||||
`
`ROY-G-BIV CORPORATION
`
`VS.
`
`ABB, LTD., ET AL
`
`--------------------------------------------------------
`
`VOLUME 1 OF 1, PAGES 1 THROUGH 179
`
`REPORTER'S TRANSCRIPT OF CLAIM CONSTRUCTION HEARING
`
`BEFORE THE HONORABLE ZACK HAWTHORN
`UNITED STATES MAGISTRATE JUDGE
`
`--------------------------------------------------------
`
`APPEARANCES:
`
`FOR THE PLAINTIFF:
`
`RUSSELL A. CHORUSH
`HEIM, PAYNE & CHORUSH - HOUSTON
`600 TRAVIS STREET, SUITE 6710
`HOUSTON, TEXAS
`77002
`
`H. KIP GLASSCOCK, JR.
`KIP GLASSCOCK, ATTORNEY AT LAW
`550 FANNIN, SUITE 1350
`BEAUMONT, TEXAS
`77701
`
`GREGORY PHILLIP LOVE
`STEVENS, LOVE, HILL & HOLT
`222 N. FREDONIA STREET
`LONGVIEW, TEXAS
`75601
`
`DAVID MICHAEL UNDERHILL
`PATRICK MICHAEL LAFFERTY
`RICHARD S. MEYER
`BOIES, SCHILLER & FLEXNER
`5301 WISCONSIN AVENUE NW
`8TH FLOOR
`WASHINGTON, DC
`
`20015
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Claim Construction Hearing, 6-19-2013
`
`2
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`FOR THE PLAINTIFF (CONTINUED):
`
`DOUGLAS RON WILSON
`HEIM, PAYNE & CHORUSH - AUSTIN
`9442 CAPITAL OF TEXAS HWY NORTH
`PLAZA ONE, SUITE 500
`AUSTIN, TEXAS
`78759
`
`ADAM QUENTIN VOYLES
`LANCE LUBEL
`LUBEL VOYLES, LLP
`1300 POST OAK BLVD, SUITE 2000
`HOUSTON, TEXAS
`77056
`
`FOR DEFENDANTS ABB AND MEADWESTVACO:
`
`STEVEN M. AUVIL
`BRYAN JOSEPH JAKETIC
`SQUIRE SANDERS
`4900 KEY TOWER
`127 PUBLIC SQUARE
`CLEVELAND, OHIO
`
`44114
`
`ALLEN FRANKLIN GARDNER
`POTTER MINTON
`110 N. COLLEGE STREET, SUITE 500
`TYLER, TEXAS
`75702
`
`FOR DEFENDANTS HONEYWELL INTERNATIONAL, INC., AND MOTIVA
`ENTERPRISES, LLC:
`
`NICK GREGORY SAROS
`JENNER & BLOCK - LA
`633 W. 5TH STREET, SUITE 3600
`LOS ANGELES, CALIFORNIA
`90071
`
`J. THAD HEARTFIELD
`THE HEARTFIELD LAW FIRM
`2195 DOWLEN ROAD
`BEAUMONT, TEXAS
`
`77706
`
`PETER H. HANNA
`JENNER & BLOCK - CHICAGO
`353 N. CLARK STREET
`CHICAGO, ILLINOIS
`
`60654
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Claim Construction Hearing, 6-19-2013
`
`3
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`FOR THE SIEMENS DEFENDANTS:
`
`GREGG F. LOCASCIO
`SEAN M. MCELDOWNEY
`KIRKLAND & ELLIS - WASHINGTON DC
`655 15TH STREET NW, 12TH FLOOR
`WASHINGTON, DC
`20005
`
`JAMES BRIAN MEDEK
`KIRKLAND & ELLIS - CHICAGO
`300 N. LASALLE STREET, SUITE 2500
`CHICAGO, ILLINOIS
`60654
`
`MELISSA RICHARDS SMITH
`GILLAM & SMITH, LLP
`303 SOUTH WASHINGTON AVENUE
`MARSHALL, TEXAS
`75670
`
`COURT REPORTER:
`
`CHRISTINA L. BICKHAM, CRR, RMR
`FEDERAL OFFICIAL REPORTER
`300 WILLOW, SUITE 221
`BEAUMONT, TEXAS
`77701
`
`PROCEEDINGS REPORTED USING COMPUTERIZED STENOTYPE;
`TRANSCRIPT PRODUCED VIA COMPUTER-AIDED TRANSCRIPTION.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`INDEX
`
`4
`
`MOTION CONTROL
`
`NON-PRIMITIVE OPERATIONS
`
`INDEFINITENESS
`
`MOTION CONTROL DEVICE
`
`APPLICATION PROGRAM
`
`DRIVER FUNCTIONS
`
`CORE DRIVER FUNCTION AND EXTENDED DRIVER
`FUNCTION
`
`NETWORK
`
`MEANS-PLUS-FUNCTION ARGUMENTS
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`COURT REPORTER'S CERTIFICATION
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`PAGE
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`9
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`55
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`81
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`105
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`116
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`141
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`156
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`168
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`179
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`5
`
`(REPORTER'S NOTES ROY VS ABB, 9:10 A.M.,
`
`WEDNESDAY, JUNE 19, 2013, BEAUMONT, TEXAS, HON. ZACK
`
`HAWTHORN PRESIDING.)
`
`(OPEN COURT, ALL PARTIES PRESENT.)
`
`THE COURT:
`
`Court calls Case Number 6:11cv622
`
`styled ROY-G-BIV Corporation versus ABB Limited,
`
`MeadWestvaco Texas -- I believe there are a few, yeah,
`
`more defendants -- Honeywell International, Motiva
`
`Enterprises, and Siemens Corporation.
`
`Will the plaintiffs introduce themselves,
`
`please?
`
`MR. GLASSCOCK:
`
`Your Honor, Kip Glasscock.
`
`And can I introduce the team?
`
`THE COURT:
`
`Yes, sir.
`
`MR. GLASSCOCK:
`
`First, our inventor, Dave
`
`Brown.
`
`THE COURT:
`
`Good morning.
`
`MR. GLASSCOCK:
`
`Attorney Mike Underhill from
`
`Boies Schiller.
`
`MR. UNDERHILL:
`
`Good morning, your Honor.
`
`THE COURT:
`
`Good morning.
`
`MR. GLASSCOCK:
`
`Richard Meyer and Patrick
`
`Lafferty from Boies Schiller.
`
`THE COURT:
`
`Good morning.
`
`MR. GLASSCOCK:
`
`Dr. Russ Chorush who will take
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`6
`
`the lead today.
`
`MR. CHORUSH:
`
`Good morning, your Honor.
`
`THE COURT:
`
`Good morning.
`
`MR. GLASSCOCK:
`
`Greg Love from Longview.
`
`MR. LOVE:
`
`Good morning, your Honor.
`
`THE COURT:
`
`Good morning.
`
`MR. GLASSCOCK:
`
`And Adam Voyles and Lance
`
`Lubel, who I'm sure you know.
`
`THE COURT:
`
`Good morning.
`
`MR. GLASSCOCK:
`
`Thank you, your Honor.
`
`THE COURT:
`
`Thank you, Mr. Glasscock.
`
`Defendants?
`
`MR. HEARTFIELD:
`
`Good morning, your Honor.
`
`Thad Heartfield.
`
`I'm here for the Honeywell and Motiva
`
`defendants.
`
`I'd like to introduce our team.
`
`Mr. Nick
`
`Saros will be making the presentation on behalf of these
`
`two defendants.
`
`THE COURT:
`
`Good morning.
`
`MR. SAROS:
`
`Good morning, your Honor
`
`MR. HEARTFIELD:
`
`Also with our team is
`
`Mr. Pete Hanna; and client representatives here today are
`
`Daniel Rosenthal and Bryan Anderson.
`
`THE COURT:
`
`Good morning.
`
`MR. HEARTFIELD:
`
`And we are ready.
`
`THE COURT:
`
`All right.
`
`Thank you very much.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Claim Construction Hearing, 6-19-2013
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`7
`I assume the parties have received the court's
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`preliminary constructions this morning.
`
`As the email
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`said, the purpose of those preliminary constructions are
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`two -- maybe it would be a catalyst to get some kind of
`
`agreement among or between the parties for some of the
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`claim constructions which I believe it has done at least
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`on a few, and the second is that will focus the parties'
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`arguments perhaps as to where the court just kind of sees
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`it now.
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`I do want to stress, however, that these are
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`preliminary.
`
`I haven't made up my mind.
`
`The court
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`hasn't made up its mind; and we are definitely open to
`
`suggestions, corrections, deletions, or anything else.
`
`So, that's all they are are preliminary.
`
`I would like -- kind of the loose format I
`
`would like to take is go term by term, starting with the
`
`first one.
`
`The parties can incorporate their motion for
`
`summary judgment arguments on indefiniteness with the
`
`claim constructions if they wish.
`
`There will be two
`
`hours per side.
`
`The parties can divide that up however
`
`they see fit on their claim construction arguments.
`
`MS. SMITH:
`
`Your Honor, good morning.
`
`THE COURT:
`
`Good morning.
`
`MS. SMITH:
`
`Melissa Smith for Siemens.
`
`We
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`have a few more speakers and a few more teams here.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`
`
`Claim Construction Hearing, 6-19-2013
`
`8
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`THE COURT:
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`Okay.
`
`MS. SMITH:
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`And if it pleases the court --
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`THE COURT:
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`Yes, ma'am.
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`MS. SMITH:
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`-- I'd like to introduce my team
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`as well.
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`THE COURT:
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`Sure.
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`MS. SMITH:
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`Lead counsel for Siemens is
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`Mr. Gregg LoCascio, and he is on my right here.
`
`We also have Mr. Sean McEldowney --
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`THE COURT:
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`Good morning.
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`MS. SMITH:
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`-- and Mr. Jim Medek for Siemens.
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`MR. MEDEK:
`
`Good morning.
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`THE COURT:
`
`Good morning.
`
`MS. SMITH:
`
`Siemens is also joined this
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`morning by a client representative, Mr. Frank Nuzzi; and
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`we're ready to proceed.
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`Thank you, your Honor.
`
`THE COURT:
`
`Okay.
`
`Thank you, ma'am.
`
`MR. GARDNER:
`
`One more, your Honor.
`
`Allen
`
`Gardner here, sir, for the ABB and MeadWestvaco
`
`defendants.
`
`And with me today is Mr. Steve Auvil, your
`
`Honor --
`
`MR. AUVIL:
`
`Good morning, your Honor.
`
`THE COURT:
`
`Good morning.
`
`MR. GARDNER:
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`-- lead counsel; and he'll be
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`speaking some this morning.
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`We also have Mr. Bryan
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Claim Construction Hearing, 6-19-2013
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`9
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`Jaketic.
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`They're both from the Squire Sanders firm; and
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`we are ready, sir.
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`THE COURT:
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`Okay.
`
`Thank you very much.
`
`Okay.
`
`The first proposed claim term is
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`"motion control."
`
`I'd like to hear from the defendants
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`first on that if I can.
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`So, whoever wants to start that
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`off.
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`MR. LOCASCIO:
`
`Thank you, your Honor.
`
`Gregg
`
`LoCascio, your Honor, on behalf of the defendants on this
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`term.
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`Perhaps the way, if the court believes it is
`
`appropriate, I'd like to address this is given the
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`preliminary constructions from your Honor, there are
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`certainly two, if not three, constructions that this ties
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`into.
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`From the defendants' position, "motion
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`control" was inherent in "motion control operation" and
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`"motion control device."
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`Given how the court has
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`preliminarily construed it, particularly with respect to
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`"motion control device," I think a lot of this has been
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`dealt with.
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`So, what I would suggest -- unless
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`your Honor would rather I just go through, which I would
`
`expect you would not, my plan on "motion control" would
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`be -- I think where we ought to talk about this is
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`"motion control operation" because right now with the
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`court's construction for "motion control," "motion
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`10
`control operation," and "motion control device," I don't
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`believe there is a need to construe "motion control"
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`because right now it doesn't end up standing alone in any
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`of the other terms.
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`As it was proposed in the parties' agreed-upon
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`construction for "primitive operation," there had been a
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`use just of the term "motion control"; and in that
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`construct we said, okay, well, we need to know what that
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`means.
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`And, so, not to kind of diverge from where
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`your Honor suggested we start, if it is fine with the
`
`court, what I would suggest is if we talk about "motion
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`control operation," the one difference, frankly, that the
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`parties have on that limitation, as the court has
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`identified it, can be addressed.
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`I think in two or three
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`moments I'll go through just "motion control."
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`We'll
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`look at the court's proposed construction and then figure
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`out how it applies.
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`THE COURT:
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`So, let me make sure I have this
`
`clear.
`
`Are you saying now, in light of the preliminary
`
`constructions of "motion control operation" and "motion
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`control device," that you don't believe -- and "primitive
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`operation" -- that maybe perhaps you don't believe that,
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`according to the defendants, I need to construe "motion
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`control"?
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`MR. LOCASCIO:
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`I think that's correct.
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`And if
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`11
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`I can annotate that, it's because I believe in "motion
`
`control device" you've essentially done that.
`
`THE COURT:
`
`Okay.
`
`MR. LOCASCIO:
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`And, specifically, the court's
`
`preliminary construction for "motion control device" --
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`you'll see I've boxed in that part at the end, "of moving
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`an object in a desired manner."
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`I'm essentially reading
`
`that, your Honor, as that is your construction of "motion
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`control"; and this is where you've placed it.
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`And in
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`that regard, your Honor, I think we're fine with that.
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`The difference, we had on a "desired path."
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`Your Honor
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`has used "desired manner," and I don't think we need to
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`spend the court's time on that distinction.
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`And, so, where this then presents itself is
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`"motion control device" is embedded in "motion control
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`operation" in your Honor's construction.
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`If I can now
`
`flip you back -- of course my copy is marked up.
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`You've
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`included "motion control device" in "motion control
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`operation."
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`And given that, that definition we see in
`
`your Honor's preliminary construction of "moving an
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`object in a desired manner" is essentially in both
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`"motion control device" and "motion control operation" as
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`a result.
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`Given that, then I don't think there is a need
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`to talk about "motion control" standing alone.
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`Does that
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`make sense?
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`12
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`THE COURT:
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`Pretty much.
`
`So, do you want to
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`just go ahead and move on to "motion control operation,"
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`then?
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`MR. LOCASCIO:
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`That's what I was going to do
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`if it's fine with your Honor.
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`THE COURT:
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`Let's do that, then.
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`MR. LOCASCIO:
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`Okay.
`
`Your Honor's proposed
`
`construction of "motion control operation" is "hardware
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`independent operations that are performed on or by a
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`motion control device."
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`The two terms we, frankly, were
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`going to be talking about were "hardware independent"
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`versus "abstract"; and the second being "used to perform"
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`or "performed on or by."
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`So, I just want to address
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`those as we had planned to do.
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`So, if I might switch back -- and I apologize
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`for the jumping around; but given we just -- which I
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`appreciate the preliminary.
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`It certainly makes this a
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`lot more focused, but our slides may jump around a little
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`bit.
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`On "motion control operation," your Honor, the
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`parties' original proposals on this were -- on the right
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`being defendants', on the left being plaintiff's.
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`The
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`difference I want to talk about given your Honor's
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`preliminary is "used to perform motion control" versus
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`"performed on or by a motion control device."
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`Other than
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
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`Claim Construction Hearing, 6-19-2013
`
`13
`
`that, we had talked about agreeing on your Honor's
`
`preliminary construction.
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`We said, well, we couldn't
`
`agree to "performed on or by"; so, that's where I want to
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`focus the discussion.
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`The specification of these patents says
`
`specifically the motion control operations are "used to
`
`perform motion control."
`
`And the only argument that the
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`plaintiff made as to why we shouldn't use the language
`
`out of the patent was that we were somehow trying to read
`
`out the preferred embodiments; and I want to specifically
`
`address that because to the extent that led to your Honor
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`including "on or by," I want to disabuse the court of
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`that position.
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`Let's start off with the terms of a patent.
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`And I don't think we need to because certainly your Honor
`
`is familiar with the whole point of drafting the
`
`specification.
`
`The whole point of having the file
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`history be laid open so the public can see them is so
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`when you're in a situation like Siemens or any of the
`
`other defendants, you can look at a patent claim and know
`
`what it means.
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`And, of course, the first place, you look to
`
`the claims.
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`Then you look to the specification, and you
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`look at the prosecution history.
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`And in doing so, it
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`also ought to mean the same thing everywhere.
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`Every
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`14
`defendant that looks at it, every time RGB looks at it or
`
`anyone looks at it, they hopefully ought to come to the
`
`same construction because the premise is, like a deed to
`
`a land, we need to know where the boundaries are and they
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`shouldn't be shifting.
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`And, so, while not determinative, because the
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`specification is what decides this issue, I think it is
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`instructive to look at in the only other time this has
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`come before a court, Judge Folsom's court, RGB -- same
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`client, same counsel, same everything -- proposed not
`
`"performed on or by" but "used to perform," which is
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`what, of course, defendants propose here.
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`The defendant in that case came to the same
`
`conclusion.
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`It ought to be "used to perform."
`
`So, this
`
`"used to perform" versus "performed on or by" was what
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`two parties, when they looked at it previously,
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`determined the construction ought to be.
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`Judge Folsom looked at it as well and he
`
`looked at the same language from the specification that
`
`we'll go through here and he said the language there was
`
`motion control operations "used to perform motion
`
`control."
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`And this is from his opinion.
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`THE COURT:
`
`But didn't Judge Folsom also adopt
`
`"abstract operations" as opposed to "hardware
`
`independent"?
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`15
`
`MR. LOCASCIO:
`
`He did, your Honor.
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`THE COURT:
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`So, which part of Judge Folsom
`
`should I ignore or follow?
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`MR. LOCASCIO:
`
`That's a good question, your
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`Honor.
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`I don't think the "abstract operations" versus
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`"hardware independent" -- I don't think anybody takes a
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`position that those mean different things.
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`That's just a
`
`simple issue of does it make any sense in the term
`
`"abstract."
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`And I'll show you what Judge Folsom said
`
`about that because he equated the two terms.
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`But if I
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`had to pick, if your Honor said, "Okay.
`
`We're living
`
`with Judge Folsom's.
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`Do you care more about 'abstract'
`
`or 'used to perform,'" well, given that "abstract" as it
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`is set forth in the specification is hardware independent
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`and I don't think there is any debate between the parties
`
`about that, I would say I agree with "abstract" can be in
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`there.
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`Our proposal to change that was sheerly to make
`
`it more understandable, and I'll show you why.
`
`The definition of "abstract," to cut to the
`
`chase, is actually hard to understand; and our position
`
`is if you ask the jury, "Okay.
`
`Is this an abstract
`
`operation," they're going to say, "Well, what the heck is
`
`that?"
`
`But to the point of "used to perform motion
`
`control," the court's construction obviously in that case
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`16
`came out with that; but both parties took that position.
`
`There was no disagreement that it ought to be "used to
`
`perform."
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`Here the suggestion is, by the plaintiffs, we
`
`ought to change that to make it "performed on or by."
`
`"Performed by" is pretty close to "used to perform" in my
`
`mind.
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`I think the battle in why the change is in there
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`is they want to make it broader by "performed on."
`
`And
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`at a base level, okay, the system is designed to control
`
`a motion control device.
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`These operations, motion
`
`control operations, are used to perform motion control.
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`If you just make it "performed on a motion control
`
`device," that's anything.
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`That's turning the power on or
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`off.
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`operation?
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`THE COURT:
`
`But isn't that a motion control
`
`MR. LOCASCIO:
`
`It is not.
`
`THE COURT:
`
`ShutDown?
`
`MR. LOCASCIO:
`
`It is not.
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`THE COURT:
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`ShutDown is not an embodiment in a
`
`motion control operation, sending a motion control device
`
`to shut down?
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`MR. LOCASCIO:
`
`It is not.
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`THE COURT:
`
`What about send error status?
`
`Is
`
`that one, too.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Claim Construction Hearing, 6-19-2013
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`17
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`MR. LOCASCIO:
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`Send error status --
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`GetErrorStatus --
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`THE COURT:
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`GetErrorStatus.
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`MR. LOCASCIO:
`
`Okay.
`
`GetErrorStatus is also
`
`not a motion control operation.
`
`And also I'll show you in the specification
`
`why.
`
`That's certainly a disagreement between the
`
`parties, and I'm going to walk your Honor through that.
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`Because the preferred embodiment of actual motion control
`
`operations as used in this patent are all encompassed by
`
`"used by" -- pardon me -- "used to perform" but not
`
`"performed on."
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`And certainly making the claim broader, sure,
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`would make it easier for every plaintiff to prove patent
`
`infringement; but it also expands the scope of what they
`
`obtained from the Patent Office and only takes what was
`
`otherwise an understandable scope and now puts it into a
`
`broader region.
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`So, if we look at the difference, they take
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`the position -- and I understand from your Honor's
`
`questions the concern about this -- that we're somehow
`
`reading out or ignoring the preferred embodiment.
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`And
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`they point to GetPosition.
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`That's the first one they
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`point to, because GetPosition is an embodiment.
`
`That's
`
`set forth in the specification as a motion control
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`operation.
`
`18
`So, to be sure, GetPosition is one, a motion
`
`control operation.
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`But, first of all, it's in the court's
`
`preliminary.
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`It's in both parties' suggested
`
`constructions of having GetPosition.
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`And GetPosition
`
`is --
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`THE COURT:
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`Well, in my preliminary I take out
`
`the "(such as GETPOSITION, MOVERELATIVE or CONTOURMOVE)."
`
`MR. LOCASCIO:
`
`Pardon me.
`
`You do, your Honor.
`
`And it is obviously "such as"; so, it is not
`
`exhaustive.
`
`Those are the three set forth in that regard
`
`in the specification.
`
`That's why both parties had them
`
`in there.
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`But GetPosition is a motion control operation
`
`because if you imagine, whether it's a milling machine or
`
`some other device, you need to know where you can -- it's
`
`a read/write concept.
`
`You can read information from the
`
`machine, such as where is the blade; and you can then
`
`send a motion control operation, move the blade relative
`
`to its existing position.
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`Those are both motion control operations, and
`
`they are both used to perform motion control.
`
`Certainly
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`it's part of the process of moving the blade from A to B,
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`asking it where it is at any point in time, "Where are
`
`you now?"
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`19
`
`"A."
`
`GetPosition is used to perform motion control.
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`And we get into the battle of "performed on or
`
`by" because of points that RGB argues.
`
`They say, well
`
`Reset, Initialize, ShutDown, GetErrorStatus, those all
`
`ought to be motion control operations.
`
`Except nowhere in
`
`the specification does it ever describe those or define
`
`those or in any other way call those motion control
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`operations because at that point any system -- if we look
`
`at not including "used to performed motion control," if
`
`we take that out and we essentially read out motion
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`control from these claims, what you have left is any
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`machine that's capable of moving that you send a command
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`to from an application program.
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`And that's both far
`
`broader than the specification and certainly inconsistent
`
`with everything that was said during prosecution.
`
`And the citation to these are Exhibit A, and I
`
`want to direct your Honor's attention to that because the
`
`specification itself doesn't define everything in
`
`Appendix A as a motion control operation.
`
`It certainly
`
`doesn't -- these actually come out of Appendix B, and it
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`certainly doesn't define those as motion control
`
`operations.
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`If we look at the language of the
`
`specification -- let me actually get the correct slide on
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`20
`
`the screen.
`
`THE COURT:
`
`Okay.
`
`They argue that those are
`
`operations in RGB's preferred XMC embodiment, such as
`
`Initialize, Reset.
`
`So, are those operations in their
`
`preferred embodiment or not?
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`MR. LOCASCIO:
`
`Those are not, your Honor.
`
`They are not motion control operations in the preferred
`
`embodiment.
`
`And if I can direct your Honor specifically
`
`to the patent -- because what they are trying to do is
`
`say everything set forth in Exhibit A or Exhibit B, every
`
`reference in there, every operation or driver function at
`
`all is a motion control operation; but that's not what
`
`the specification says.
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`THE COURT:
`
`So, you argue that GetPosition is
`
`used to perform motion control.
`
`MR. LOCASCIO:
`
`Correct, your Honor.
`
`THE COURT:
`
`Are you saying that ShutDown is
`
`not used for motion control?
`
`Reset is not used for
`
`motion control?
`
`Initialize is not used for motion
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`control?
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`How do I determine what command is used for
`
`motion control and what is not?
`
`MR. LOCASCIO:
`
`Sure.
`
`Because the commands
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`used by -- one of skill in the art would say, as
`
`your Honor has found in a motion control device, if it is
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`used to move an object in a desired manner -- okay, our
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`21
`proposal had been "used to" -- that there are functions,
`
`motion control operations, your Honor, that do that.
`
`GetPosition, MoveRelative, the ones identified
`
`in the specification as motion control operations -- and
`
`that's not exhaustive; but those commands, your Honor,
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`actually are used to perform motion control.
`
`THE COURT:
`
`But wouldn't Initialize be used to
`
`perform motion control?
`
`I mean, you're initializing the
`
`motion control device.
`
`How is that different from
`
`GetPosition?
`
`MR. LOCASCIO:
`
`GetPosition is the piece of
`
`information you need to tell it where to move.
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`Initialize, turn on, turn off -- they didn't invent, your
`
`Honor, a machine that turns on a remote device.
`
`And
`
`essentially if you read in any function at all, anything
`
`you do to a machine that has a controller and a
`
`mechanical system, you've basically now taken their
`
`patent and turned it into remotely turning a machine on,
`
`turning one off; and that's not what they define motion
`
`control to be even in the specification, much less in the
`
`downstream history that followed.
`
`THE COURT:
`
`How can you perform motion control
`
`without turning it on?
`
`MR. LOCASCIO:
`
`Just because the machine needs
`
`to be on doesn't mean that that is a motion control
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`operation, your Honor.
`
`22
`Just because -- they have a term,
`
`"motion control operations"; and that is an operation
`
`that performs motion control.
`
`And, so, this comes back
`
`to, well, what does "motion control" mean; and your Honor
`
`has identified it as "moving an object in a desired
`
`manner."
`
`And just because the machine needs to be on to
`
`move an object in a desired manner doesn't make that a
`
`motion control operation.
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`If we think about it in some
`
`other context, there are operations your computer
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`performs that could be defined as mathematic operations,
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`processing operations.
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`The machine has to be on to do
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`all of those.
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`That doesn't mean "turn on" is such an
`
`operation.
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`And the support for this and why it -- we're
`
`not expecting and no one -- the process isn't, well,
`
`let's try to just guess as to where the line is.
`
`The
`
`specification defines certain things as motion control
`
`operations.
`
`It defines motion control as moving an
`
`object in a desired manner or along a desired path, and
`
`that's what we have to look at as to which are motion
`
`control operations.
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`And what they point to for these
`
`Initialize, okay, Reset, they point to something in
`
`Appendix B to try to get there; and that's the only
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`support for that.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`23
`
`If I can show your Honor the specification
`
`that actually talks about Appendix A and B, I think it
`
`would be helpful.
`
`So, this is the '236 specification;
`
`but they are obviously all the same.
`
`This is the
`
`reference to Appendix A and certainly Appendix A talks
`
`about motion control operations and it does so in this
`
`context.
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`It says -- if you look right above, there is
`
`actually examples of motion control operations that we
`
`talked about, GetPosition, MoveRelative, ContourMove.
`
`And then it says, "Given the set of motion
`
`control operations as defined above, the software system
`
`designer next defines a service provider interface" --
`
`here (indicating) is where I am.
`
`Okay?
`
`That's
`
`Appendix A.
`
`And it talks about motion control operations
`
`are linked to driver functions.
`
`And then it says this
`
`SPI, or service provider interface, is attached as
`
`Appendix A.
`
`Those four alleged motion control operations
`
`that really beg the question of "performed on" or
`
`"performed by" are not in Appendix A.
`
`They're in
`
`Appendix B.
`
`And we'll look at those two places, but
`
`Appendix B is something else.
`
`Appendix B is the next
`
`paragraph.
`
`It's the API.
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`And if you look at that
`
`paragraph that then refers to Appendix B, there is no
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`reference anywhere to a motion control operation.
`
`The
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`24
`
`specification defines "motion control" as moving an
`
`object in a desired manner.
`
`It talks about motion
`
`control operations as being things used for motion
`
`control and then identifies GetPosition, MoveRelative,
`
`ContourMove.
`
`It says, okay, there are other drivers in
`
`motion control operations; and you can go find those in
`
`Appendix A.
`
`But for Appendix B it's talking about
`
`component functions, associated driver functions.
`
`It
`
`doesn't ever use "motion control operations" with regard
`
`to Appendix B, your Honor.
`
`And, so, if we look at Appendix A -- so,
`
`Appendix A is that SPI reference; and inside
`
`Appendix A -- this is 3.1.9.
`
`The suggestion is
`
`everything in 3.1 and 3.2, core and extended functions,
`
`they're all motion control operations.
`
`That's not true,
`
`either.
`
`Appendix A says, for instance, with the servo
`
`motors -- it talks about stepper motors and servo motors.
`
`With respect to servo motors, "All motion operations" --
`
`okay, so now we're at least using the terms they use in
`
`these claims, motion operations, akin to motion control
`
`operation -- are performed not by any of these various
`
`interfaces but by one, that interface (indicating).
`
`And if we look up, that's this (indicating)
`
`one, 3.1.8.
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`And 3.1.8 talks about motion control
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`
`
`Claim Construction Hearing, 6-19-2013
`
`25
`
`functions; and what it talks about are GetPosition --
`
`okay, that's the one in the specification; so, there is
`
`consistency there -- GetCommanded, where did I tell it to
`
`go; GetActual, where is it; get its velocity, actual;
`
`SetVelocity; SetPosition; Kill, meaning stop moving;
`
`MoveAbsolute; MoveContinuous; and Stop.
`
`Those are motion control operations as set
`
`forth in the patent.
`
`They put forth a whole list of
`
`other things; and that list of other things includes
`
`Initialize, Status -- and what they look to for that is
`
`not Appendix A, your Honor.
`
`They look to Appendix B.
`
`There are other motion control functions in
`
`Appendix A in one other place.
`
`These are the core, the
`
`core functions.
`
`3.2.10, to be clear, has other examples
`
`and they identify some of them and these also are motion
`
`control functions.
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`You see at the top, "This interface
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`consists of extra motion control functions."
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`So, the motion control operations actually set
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`forth in the preferred embodiment, if Exhibit A is that,
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`what they identify in the specification, are a collection
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`of functions that actually are used to control -- or to
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`perform motion control.
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`Okay?
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`The others -- once you make it "performed on,"
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`it becomes a whole other