throbber
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
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`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
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Claim Construction Hearing, 6-19-2013
`
`2
`
`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
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Claim Construction Hearing, 6-19-2013
`
`3
`
`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.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`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
`
`COURT REPORTER'S CERTIFICATION
`
`PAGE
`
`9
`
`55
`
`81
`
`105
`
`116
`
`141
`
`156
`
`168
`
`169
`
`179
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`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
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`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
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Claim Construction Hearing, 6-19-2013
`
`7
`I assume the parties have received the court's
`
`preliminary constructions this morning.
`
`As the email
`
`said, the purpose of those preliminary constructions are
`
`two -- maybe it would be a catalyst to get some kind of
`
`agreement among or between the parties for some of the
`
`claim constructions which I believe it has done at least
`
`on a few, and the second is that will focus the parties'
`
`arguments perhaps as to where the court just kind of sees
`
`it now.
`
`I do want to stress, however, that these are
`
`preliminary.
`
`I haven't made up my mind.
`
`The court
`
`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
`
`have a few more speakers and a few more teams here.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

`

`Claim Construction Hearing, 6-19-2013
`
`8
`
`THE COURT:
`
`Okay.
`
`MS. SMITH:
`
`And if it pleases the court --
`
`THE COURT:
`
`Yes, ma'am.
`
`MS. SMITH:
`
`-- I'd like to introduce my team
`
`as well.
`
`THE COURT:
`
`Sure.
`
`MS. SMITH:
`
`Lead counsel for Siemens is
`
`Mr. Gregg LoCascio, and he is on my right here.
`
`We also have Mr. Sean McEldowney --
`
`THE COURT:
`
`Good morning.
`
`MS. SMITH:
`
`-- and Mr. Jim Medek for Siemens.
`
`MR. MEDEK:
`
`Good morning.
`
`THE COURT:
`
`Good morning.
`
`MS. SMITH:
`
`Siemens is also joined this
`
`morning by a client representative, Mr. Frank Nuzzi; and
`
`we're ready to proceed.
`
`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:
`
`-- lead counsel; and he'll be
`
`speaking some this morning.
`
`We also have Mr. Bryan
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Claim Construction Hearing, 6-19-2013
`
`9
`
`Jaketic.
`
`They're both from the Squire Sanders firm; and
`
`we are ready, sir.
`
`THE COURT:
`
`Okay.
`
`Thank you very much.
`
`Okay.
`
`The first proposed claim term is
`
`"motion control."
`
`I'd like to hear from the defendants
`
`first on that if I can.
`
`So, whoever wants to start that
`
`off.
`
`MR. LOCASCIO:
`
`Thank you, your Honor.
`
`Gregg
`
`LoCascio, your Honor, on behalf of the defendants on this
`
`term.
`
`Perhaps the way, if the court believes it is
`
`appropriate, I'd like to address this is given the
`
`preliminary constructions from your Honor, there are
`
`certainly two, if not three, constructions that this ties
`
`into.
`
`From the defendants' position, "motion
`
`control" was inherent in "motion control operation" and
`
`"motion control device."
`
`Given how the court has
`
`preliminarily construed it, particularly with respect to
`
`"motion control device," I think a lot of this has been
`
`dealt with.
`
`So, what I would suggest -- unless
`
`your Honor would rather I just go through, which I would
`
`expect you would not, my plan on "motion control" would
`
`be -- I think where we ought to talk about this is
`
`"motion control operation" because right now with the
`
`court's construction for "motion control," "motion
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

`

`Claim Construction Hearing, 6-19-2013
`
`10
`control operation," and "motion control device," I don't
`
`believe there is a need to construe "motion control"
`
`because right now it doesn't end up standing alone in any
`
`of the other terms.
`
`As it was proposed in the parties' agreed-upon
`
`construction for "primitive operation," there had been a
`
`use just of the term "motion control"; and in that
`
`construct we said, okay, well, we need to know what that
`
`means.
`
`And, so, not to kind of diverge from where
`
`your Honor suggested we start, if it is fine with the
`
`court, what I would suggest is if we talk about "motion
`
`control operation," the one difference, frankly, that the
`
`parties have on that limitation, as the court has
`
`identified it, can be addressed.
`
`I think in two or three
`
`moments I'll go through just "motion control."
`
`We'll
`
`look at the court's proposed construction and then figure
`
`out how it applies.
`
`THE COURT:
`
`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
`
`control device," that you don't believe -- and "primitive
`
`operation" -- that maybe perhaps you don't believe that,
`
`according to the defendants, I need to construe "motion
`
`control"?
`
`MR. LOCASCIO:
`
`I think that's correct.
`
`And if
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

`

`Claim Construction Hearing, 6-19-2013
`
`11
`
`I can annotate that, it's because I believe in "motion
`
`control device" you've essentially done that.
`
`THE COURT:
`
`Okay.
`
`MR. LOCASCIO:
`
`And, specifically, the court's
`
`preliminary construction for "motion control device" --
`
`you'll see I've boxed in that part at the end, "of moving
`
`an object in a desired manner."
`
`I'm essentially reading
`
`that, your Honor, as that is your construction of "motion
`
`control"; and this is where you've placed it.
`
`And in
`
`that regard, your Honor, I think we're fine with that.
`
`The difference, we had on a "desired path."
`
`Your Honor
`
`has used "desired manner," and I don't think we need to
`
`spend the court's time on that distinction.
`
`And, so, where this then presents itself is
`
`"motion control device" is embedded in "motion control
`
`operation" in your Honor's construction.
`
`If I can now
`
`flip you back -- of course my copy is marked up.
`
`You've
`
`included "motion control device" in "motion control
`
`operation."
`
`And given that, that definition we see in
`
`your Honor's preliminary construction of "moving an
`
`object in a desired manner" is essentially in both
`
`"motion control device" and "motion control operation" as
`
`a result.
`
`Given that, then I don't think there is a need
`
`to talk about "motion control" standing alone.
`
`Does that
`
`make sense?
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

`

`Claim Construction Hearing, 6-19-2013
`
`12
`
`THE COURT:
`
`Pretty much.
`
`So, do you want to
`
`just go ahead and move on to "motion control operation,"
`
`then?
`
`MR. LOCASCIO:
`
`That's what I was going to do
`
`if it's fine with your Honor.
`
`THE COURT:
`
`Let's do that, then.
`
`MR. LOCASCIO:
`
`Okay.
`
`Your Honor's proposed
`
`construction of "motion control operation" is "hardware
`
`independent operations that are performed on or by a
`
`motion control device."
`
`The two terms we, frankly, were
`
`going to be talking about were "hardware independent"
`
`versus "abstract"; and the second being "used to perform"
`
`or "performed on or by."
`
`So, I just want to address
`
`those as we had planned to do.
`
`So, if I might switch back -- and I apologize
`
`for the jumping around; but given we just -- which I
`
`appreciate the preliminary.
`
`It certainly makes this a
`
`lot more focused, but our slides may jump around a little
`
`bit.
`
`On "motion control operation," your Honor, the
`
`parties' original proposals on this were -- on the right
`
`being defendants', on the left being plaintiff's.
`
`The
`
`difference I want to talk about given your Honor's
`
`preliminary is "used to perform motion control" versus
`
`"performed on or by a motion control device."
`
`Other than
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

`

`Claim Construction Hearing, 6-19-2013
`
`13
`
`that, we had talked about agreeing on your Honor's
`
`preliminary construction.
`
`We said, well, we couldn't
`
`agree to "performed on or by"; so, that's where I want to
`
`focus the discussion.
`
`The specification of these patents says
`
`specifically the motion control operations are "used to
`
`perform motion control."
`
`And the only argument that the
`
`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
`
`including "on or by," I want to disabuse the court of
`
`that position.
`
`Let's start off with the terms of a patent.
`
`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
`
`history be laid open so the public can see them is so
`
`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.
`
`And, of course, the first place, you look to
`
`the claims.
`
`Then you look to the specification, and you
`
`look at the prosecution history.
`
`And in doing so, it
`
`also ought to mean the same thing everywhere.
`
`Every
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`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
`
`shouldn't be shifting.
`
`And, so, while not determinative, because the
`
`specification is what decides this issue, I think it is
`
`instructive to look at in the only other time this has
`
`come before a court, Judge Folsom's court, RGB -- same
`
`client, same counsel, same everything -- proposed not
`
`"performed on or by" but "used to perform," which is
`
`what, of course, defendants propose here.
`
`The defendant in that case came to the same
`
`conclusion.
`
`It ought to be "used to perform."
`
`So, this
`
`"used to perform" versus "performed on or by" was what
`
`two parties, when they looked at it previously,
`
`determined the construction ought to be.
`
`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."
`
`And this is from his opinion.
`
`THE COURT:
`
`But didn't Judge Folsom also adopt
`
`"abstract operations" as opposed to "hardware
`
`independent"?
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

`

`Claim Construction Hearing, 6-19-2013
`
`15
`
`MR. LOCASCIO:
`
`He did, your Honor.
`
`THE COURT:
`
`So, which part of Judge Folsom
`
`should I ignore or follow?
`
`MR. LOCASCIO:
`
`That's a good question, your
`
`Honor.
`
`I don't think the "abstract operations" versus
`
`"hardware independent" -- I don't think anybody takes a
`
`position that those mean different things.
`
`That's just a
`
`simple issue of does it make any sense in the term
`
`"abstract."
`
`And I'll show you what Judge Folsom said
`
`about that because he equated the two terms.
`
`But if I
`
`had to pick, if your Honor said, "Okay.
`
`We're living
`
`with Judge Folsom's.
`
`Do you care more about 'abstract'
`
`or 'used to perform,'" well, given that "abstract" as it
`
`is set forth in the specification is hardware independent
`
`and I don't think there is any debate between the parties
`
`about that, I would say I agree with "abstract" can be in
`
`there.
`
`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
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`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."
`
`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.
`
`I think the battle in why the change is in there
`
`is they want to make it broader by "performed on."
`
`And
`
`at a base level, okay, the system is designed to control
`
`a motion control device.
`
`These operations, motion
`
`control operations, are used to perform motion control.
`
`If you just make it "performed on a motion control
`
`device," that's anything.
`
`That's turning the power on or
`
`off.
`
`operation?
`
`THE COURT:
`
`But isn't that a motion control
`
`MR. LOCASCIO:
`
`It is not.
`
`THE COURT:
`
`ShutDown?
`
`MR. LOCASCIO:
`
`It is not.
`
`THE COURT:
`
`ShutDown is not an embodiment in a
`
`motion control operation, sending a motion control device
`
`to shut down?
`
`MR. LOCASCIO:
`
`It is not.
`
`THE COURT:
`
`What about send error status?
`
`Is
`
`that one, too.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Claim Construction Hearing, 6-19-2013
`
`17
`
`MR. LOCASCIO:
`
`Send error status --
`
`GetErrorStatus --
`
`THE COURT:
`
`GetErrorStatus.
`
`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.
`
`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."
`
`And certainly making the claim broader, sure,
`
`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.
`
`So, if we look at the difference, they take
`
`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.
`
`And
`
`they point to GetPosition.
`
`That's the first one they
`
`point to, because GetPosition is an embodiment.
`
`That's
`
`set forth in the specification as a motion control
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`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.
`
`But, first of all, it's in the court's
`
`preliminary.
`
`It's in both parties' suggested
`
`constructions of having GetPosition.
`
`And GetPosition
`
`is --
`
`THE COURT:
`
`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.
`
`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.
`
`Those are both motion control operations, and
`
`they are both used to perform motion control.
`
`Certainly
`
`it's part of the process of moving the blade from A to B,
`
`asking it where it is at any point in time, "Where are
`
`you now?"
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

`

`Claim Construction Hearing, 6-19-2013
`
`19
`
`"A."
`
`GetPosition is used to perform motion control.
`
`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
`
`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
`
`control from these claims, what you have left is any
`
`machine that's capable of moving that you send a command
`
`to from an application program.
`
`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
`
`certainly doesn't define those as motion control
`
`operations.
`
`If we look at the language of the
`
`specification -- let me actually get the correct slide on
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`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?
`
`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.
`
`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
`
`control?
`
`How do I determine what command is used for
`
`motion control and what is not?
`
`MR. LOCASCIO:
`
`Sure.
`
`Because the commands
`
`used by -- one of skill in the art would say, as
`
`your Honor has found in a motion control device, if it is
`
`used to move an object in a desired manner -- okay, our
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`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,
`
`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.
`
`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
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`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.
`
`If we think about it in some
`
`other context, there are operations your computer
`
`performs that could be defined as mathematic operations,
`
`processing operations.
`
`The machine has to be on to do
`
`all of those.
`
`That doesn't mean "turn on" is such an
`
`operation.
`
`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.
`
`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
`
`support for that.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`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.
`
`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.
`
`And if you look at that
`
`paragraph that then refers to Appendix B, there is no
`
`reference anywhere to a motion control operation.
`
`The
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`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.
`
`And 3.1.8 talks about motion control
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`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.
`
`You see at the top, "This interface
`
`consists of extra motion control functions."
`
`So, the motion control operations actually set
`
`forth in the preferred embodiment, if Exhibit A is that,
`
`what they identify in the specification, are a collection
`
`of functions that actually are used to control -- or to
`
`perform motion control.
`
`Okay?
`
`The others -- once you make it "performed on,"
`
`it becomes a whole other

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket