Case 2:08-cv-00371-TJW -CE Document 106 Filed 11/23/10 Page 1 of 141 PageID #:
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` 1 IN THE UNITED STATES DISTRICT COURT
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` 2 FOR THE EASTERN DISTRICT OF TEXAS
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` 3 MARSHALL DIVISION
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` 4 FINANCIAL SYSTEMS )(
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` 5 TECHNOLOGY, ET AL. )( CIVIL DOCKET NO.
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` 6 )( 2:08-CV-371-CE
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` 7 VS. )( MARSHALL, TEXAS
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` 8 )(
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` 9 )( OCTOBER 7, 2010
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` 10 ORACLE )( 9:00 A.M.
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` 11 CLAIM CONSTRUCTION HEARING
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` 12 BEFORE THE HONORABLE JUDGE CHAD EVERINGHAM
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` 13 UNITED STATES MAGISTRATE JUDGE
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` 14
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` 15 APPEARANCES:
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` 16
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` 17 FOR THE PLAINTIFFS: (See Attorney Sign-In Sheet)
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` 18
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` 19 FOR THE DEFENDANTS: (See Attorney Sign-In Sheet)
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` 20
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` 21 COURT REPORTER: MS. SHELLY HOLMES, CSR
` Deputy Official Court Reporter
` 22 2593 Myrtle Road
` Diana, Texas 75640
` 23 (903) 663-5082
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` 24
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` 25 (Proceedings recorded by mechanical stenography,
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`
` 5401
`
`
` 1
`
`
`
` 1 IN THE UNITED STATES DISTRICT COURT
`
` 2 FOR THE EASTERN DISTRICT OF TEXAS
`
` 3 MARSHALL DIVISION
`
` 4 FINANCIAL SYSTEMS )(
`
` 5 TECHNOLOGY, ET AL. )( CIVIL DOCKET NO.
`
` 6 )( 2:08-CV-371-CE
`
` 7 VS. )( MARSHALL, TEXAS
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` 8 )(
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` 9 )( OCTOBER 7, 2010
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` 10 ORACLE )( 9:00 A.M.
`
` 11 CLAIM CONSTRUCTION HEARING
`
` 12 BEFORE THE HONORABLE JUDGE CHAD EVERINGHAM
`
` 13 UNITED STATES MAGISTRATE JUDGE
`
` 14
`
` 15 APPEARANCES:
`
` 16
`
` 17 FOR THE PLAINTIFFS: (See Attorney Sign-In Sheet)
`
` 18
`
` 19 FOR THE DEFENDANTS: (See Attorney Sign-In Sheet)
`
` 20
`
` 21 COURT REPORTER: MS. SHELLY HOLMES, CSR
` Deputy Official Court Reporter
` 22 2593 Myrtle Road
` Diana, Texas 75640
` 23 (903) 663-5082
`
` 24
`
` 25 (Proceedings recorded by mechanical stenography,
`
`
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`Case 2:08-cv-00371-TJW -CE Document 106 Filed 11/23/10 Page 2 of 141 PageID #:
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` 1 I N D E X
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` 4 October 7, 2010
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` 6 Appearances 1
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` 7 Hearing 3
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` 8 Court Reporter's Certificate 140
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` 1 THE LAW CLERK: All rise.
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` 2 THE COURT: Please be seated.
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` 3 I have a Markman hearing set in Financial
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` 4 Systems Technology against Oracle, 2:08-CV-371.
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` 5 What says the plaintiff?
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` 6 MR. POLLINGER: Your Honor, the plaintiffs
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` 7 are ready.
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` 8 THE COURT: For the defendant?
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` 9 MR. BUFE: Good Morning, Your Honor. John
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` 10 Bufe appearing for Defendant Oracle. We're ready. With
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` 11 me is Neal Chatterjee.
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` 12 MR. CHATTERJEE: Morning, Your Honor.
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` 13 THE COURT: Morning.
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` 14 MR. BUFE: Also, Karen Johnson-McKewan.
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` 15 MS. JOHNSON-MCKEWAN: Morning, Your Honor.
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` 16 THE COURT: Morning.
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` 17 MR. BUFE: And also with us this morning is
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` 18 Ms. Peggy Bruggman, Your Honor.
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` 19 MS. BRUGGMAN: Morning.
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` 20 MR. BUFE: She's senior corporate counsel
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` 21 for Oracle, and Oracle is ready, Your Honor.
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` 22 THE COURT: All right. Well, good morning
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` 23 to all of you.
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` 24 You've got an hour and a half per side to
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` 25 argue the claim construction positions. You need to use
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` 1 at least half of your time in your opening presentation,
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` 2 all right?
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` 3 MR. POLLINGER: All right. Thank you, Your
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` 4 Honor. We'll be dividing the argument between myself,
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` 5 Scott Cole, and Geoff Smith.
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` 6 THE COURT: Do you want me to give you any
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` 7 type of time warnings?
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` 8 MR. POLLINGER: They tell me 50 minutes,
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` 9 so -- so I need a warning on 50 minutes, please.
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` 10 THE COURT: When you've used -- when you've
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` 11 used 50 minutes?
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` 12 MR. POLLINGER: Yes.
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` 13 THE COURT: I'll let you know.
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` 14 MR. POLLINGER: Yes, please, Your Honor.
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` 15 THE COURT: And, Mr. Bufe, whoever is going
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` 16 to be speaking on behalf of Oracle, I'll be happy to
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` 17 give them whatever time warnings they like, as well.
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` 18 Just let me know at the time they --
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` 19 MR. BUFE: Thank you, Your Honor.
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` 20 THE COURT: -- start their presentations.
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` 21 MR. POLLINGER: If we go to Slide 3, please.
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` 22 Your Honor, the problem we have with
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` 23 Oracle's constructions is that they seek to read in
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` 24 several low-level details into the claims.
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` 25 Here is one example. This is the relation
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` 1 definition table and the relation instance table. On
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` 2 the right-hand side, we see Oracle's constructions of
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` 3 this term where they tried to read several low-level
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` 4 details in. I'll discuss these particular terms later,
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` 5 but -- but our position is that it's incorrect to
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` 6 construe claims in this matter limiting it to low-level
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` 7 details from the specification.
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` 8 Go to the next slide.
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` 9 As the Court knows, the claims define the
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` 10 invention, not the low-level details of the specific.
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` 11 The Federal Circuit explained this in the Markman
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` 12 decision and in the Phillips decision. The Federal
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` 13 Circuit pointed out in the Phillips case that although
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` 14 the specification often describes very specific
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` 15 embodiments of the invention, we've repeatedly warned
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` 16 against confining the claims to those embodiments.
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` 17 THE COURT: What do I do in the situation,
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` 18 though, where one of skill in the art might not
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` 19 understand the meaning of a claim term?
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` 20 MR. POLLINGER: The -- the ultimate purpose
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` 21 of claim construction under Phillips is to construe the
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` 22 claims in the manner that one of ordinary skill in the
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` 23 art would using the extrinsic evidence and also taking
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` 24 into account the knowledge that one of ordinary skill in
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` 25 an art brings, including dictionaries.
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` 1 THE COURT: Well, what do I do, then, in the
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` 2 situation where a claim term does not have a well
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` 3 understood meaning to one of ordinary skill in the art?
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` 4 MR. POLLINGER: Same thing, look to the --
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` 5 the intrinsic evidence, the specification, the file
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` 6 history, take into account the knowledge of one of skill
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` 7 in the art, look to the intrinsic record, extrinsic
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` 8 evidence in terms of dictionaries, and arrive at a
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` 9 construction. That is ultimately -- so we're not saying
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` 10 that claims are construed in a vacuum; they're construed
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` 11 in light of the specification and the file history.
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` 12 The Court knows the law very well,
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` 13 obviously, but I'd like to mention briefly a few case
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` 14 law points that go to our arguments. One is that
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` 15 there's no single embodiment rule. Even if the
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` 16 specification describes only a single embodiment, that
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` 17 does not justify limiting the claims to that
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` 18 embodiment.
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` 19 The Federal Circuit made this clear in the
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` 20 Liebel-Flarsheim claim and very recently, just a few
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` 21 weeks again, in the Laryngeal case.
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` 22 Claim language should not be narrowed based
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` 23 on the specification unless you've got a very specific
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` 24 situation, that is, the claim language should be --
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` 25 should not be limited to what's in the specification
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` 1 unless the patentee has demonstrated a clear intention
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` 2 to do so using words or expressions of manifest
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` 3 exclusion or restriction. The Federal Circuit made that
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` 4 clear in the Liebel-Flarsheim case. It's made that
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` 5 clear in a litany of cases since then.
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` 6 If we go to Slide 10.
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` 7 The same is true of file history statements.
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` 8 File -- the file history needs to be looked at
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` 9 certainly, but the file history warrants narrowing the
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` 10 claims only if the disclaimer is clear and unmistakable.
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` 11 An ambiguous disavowal will not suffice. The Federal
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` 12 Circuit said that repeatedly most recently this summer
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` 13 in the Schindler Elevator case.
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` 14 If we go to Slide 17.
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` 15 Here the specification actually says the
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` 16 opposite. The specification says the claims are not to
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` 17 be limited to what's described as the preferred
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` 18 embodiments in the specification. At the beginning of
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` 19 the specification, the specification states, "It is to
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` 20 be understood that these modes are merely exemplary of
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` 21 the invention. The detailed description is not intended
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` 22 to be taken in a limiting sense." At the end of the
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` 23 specification, just before the claims, the specification
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` 24 states, "The scope of the claimed invention is
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` 25 accordingly defined not by any specified embodiment
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` 1 described herein but rather by the following claims."
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` 2 So that's what one of ordinary skill in the art would
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` 3 look at in deciding how to construe these claims.
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` 4 Turning to the terms.
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` 5 The first set of terms are what's in our
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` 6 Section A. These are the preamble terms, relational
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` 7 database and relational database processing system.
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` 8 Oracle seeks to read in extra low-level details through
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` 9 the preambles of the claims, through these relational
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` 10 database terms.
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` 11 Our point on these terms is that the
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` 12 ordinary meaning of relational database applies.
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` 13 Namely, it's data organized and accessed according to
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` 14 relations. There's no basis for reading into these
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` 15 preamble terms the explicit relations requirement that
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` 16 Oracle seeks, and there's no basis to read into these
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` 17 preamble terms a negative limitation against adding
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` 18 columns.
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` 19 Here is one of the claims where these
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` 20 preamble terms appear. It's all in the preambles. Here
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` 21 it recites a method for retrieving a desired entity of a
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` 22 desired entity type from a relational database.
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` 23 Here we see the parties' respective
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` 24 constructions. Oracle seeks to add to these preamble
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` 25 terms a requirement that you have all or only explicit
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` 1 relations and that there's this negative limitation
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` 2 against adding columns. In contrast, our construction
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` 3 follows the ordinary meaning of relational database,
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` 4 that is, a database in which the data are organized and
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` 5 accessed according to relations. We see this is the
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` 6 case for all of these preamble terms. The same issues
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` 7 apply to all.
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` 8 If we go to Slide 26, please.
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` 9 The E-Pass case from the Federal Circuit
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` 10 shows why Oracle's attempt to read these limitations
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` 11 into the preamble terms based on purported benefits of
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` 12 the invention is improper. In the E-Pass case, the
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` 13 defendants sought a narrow reading of the word card as
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` 14 limited to a credit card-sized card based on stated
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` 15 objects and benefits of the invention. The Federal
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` 16 Circuit explained this is wrong.
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` 17 Here's what the Federal Circuit said, quote,
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` 18 the Court's task is not to limit claim language to
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` 19 exclude particular devices because they do not serve a
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` 20 perceived purpose of the invention. An invention may
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` 21 possess a number of advantages or purposes, and there is
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` 22 no requirement that every claim directed to that
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` 23 invention be limited to encompass all of them. And then
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` 24 based upon that, the Court held, "Thus, the ordinary
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` 25 meaning of the word card here, as used in the phrase
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` 1 electronic multifunction card, is the proper
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` 2 construction."
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` 3 The same is seen in the Federal Circuit
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` 4 Purdue Pharma case. In Purdue Pharma, the defendant
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` 5 sought to read in an effectiveness of dosage benefit
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` 6 into the claims. The Federal Circuit explained that
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` 7 this was wrong. Stated that, "It is important to note
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` 8 that the claims contain no limitations relating to the
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` 9 effectiveness of dosages in controlling pain in
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` 10 patients, and it is the claims ultimately that define
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` 11 the invention."
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` 12 Go to Slide 31, please.
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` 13 Here the extrinsic record does not warrant
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` 14 the limitations Oracle seeks into these preamble terms.
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` 15 Oracle tries to require that all relations be explicit,
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` 16 but the specification states here that implied
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` 17 relationships are not incompatible with the explicit
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` 18 relationships that are defined by the relationship
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` 19 definition table. So the ex -- intrinsic record
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` 20 actually indicates the opposite.
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` 21 Go to Slide 34.
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` 22 Similarly, with Oracle proposed prohibition
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` 23 against adding columns, the specification does not
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` 24 contain this limit. The specification here describes
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` 25 that ease of updating is one benefit, but it does not
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` 1 tie this benefit to a prohibition against adding
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` 2 columns.
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` 3 Similarly, the file history, which is part
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` 4 of the intrinsic record, the file history also does not
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` 5 support this prohibition against adding columns. Here
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` 6 the file history describes the Kumpati reference is not
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` 7 easily updated but does not tie overcoming this prior
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` 8 art based upon a prohibition against adding columns.
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` 9 The reference Kumpati is instead distinguished based on
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` 10 expressed claim elements as seen in the body -- as seen
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` 11 in the bottom of this page of Exhibit D at
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` 12 Page 31 naming the relation type records.
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` 13 There is an ordinary meaning for relational
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` 14 database. And that's the construction that -- that we
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` 15 seek here. Again, a relational database is a database
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` 16 in which the data are organized and accessed according
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` 17 to relations. The low-level details that Oracle
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` 18 proposes are not warranted.
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` 19 If we go to Slide 40, please.
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` 20 Next, this is our Section B, the entity and
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` 21 entities terms. Here again, our position is that the
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` 22 ordinary meaning applies. There is an ordinary meaning,
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` 23 and Oracle's impossible construction and its associated
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` 24 indefiniteness argument should be rejected.
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` 25 Here is where Oracle imposes the impossible
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` 1 restriction. They worded it two different ways, but it
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` 2 boils down to one impossible requirement. That is,
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` 3 entities can only have one attribute, but they can't
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` 4 have less than two attributes, only one, but not less
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` 5 than two. An impossible requirement.
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` 6 THE COURT: You need to focus your argument
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` 7 on why the patent doesn't draw a clear distinction
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` 8 between entities and relationships. Your dictionary
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` 9 definition suggests one thing, but you need to explain
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` 10 to me why the patent doesn't draw a clear distinction
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` 11 between entities and relationships.
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` 12 MR. POLLINGER: The patent -- yes, yes, Your
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` 13 Honor. The patent certainly describes entities and
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` 14 certainly describes relations. And they certainly
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` 15 describe that an entity has to have certain properties
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` 16 and a relation has to have certain properties, and those
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` 17 properties are required by one or not required by
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` 18 others -- by the other.
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` 19 And in -- I think that's reflected in our
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` 20 constructions. We have different constructions for
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` 21 entities and different constructions for relations.
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` 22 They're not -- they're not mutually -- they're not fully
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` 23 overlapping. They're not one in the same. So the
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` 24 patent does draw a distinction, but the patent does not
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` 25 say that an entity cannot have relationship information,
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` 1 and the patent does not say that a relationship can have
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` 2 no entity information. A relationship has to have
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` 3 certain properties, namely, it has to link entities, and
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` 4 an entity has to have certain properties, namely, it has
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` 5 to have information concerning an entity, has to have
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` 6 some data, but there's no restriction in the patent that
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` 7 an entity can have no relationship information and that
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` 8 a relationship can have no entity information.
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` 9 What Oracle seeks to do here is add -- seeks
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` 10 to add a confusing real-world requirement on -- on
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` 11 entities, and, again, they also seek the negative
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` 12 limitation against relationship information, which --
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` 13 which I just addressed.
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` 14 If we could turn to Slide 43.
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` 15 Here we see the parties' respective
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` 16 constructions. We propose an ordinary meaning, that is,
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` 17 information about anything that can be stored in a
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` 18 database table, whereas FST -- or, excuse me, whereas
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` 19 Oracle seeks to read in a host of low-level details.
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` 20 There's some red lining here. The red lining reflects
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` 21 the changes that Oracle made after the briefing. We --
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` 22 we don't agree to the changes. We think they're --
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` 23 they're untimely, but, regardless, substantively,
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` 24 they -- they say the same thing, whether it's go with
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` 25 the original wording or their newly-proposed wording, it
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` 1 still has this impossible requirement of only one but
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` 2 not less than two.
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` 3 In terms of ordinary meaning, there is an
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` 4 ordinary meaning for entities and there's an ordinary
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` 5 meaning specifically in this context of databases. We
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` 6 see that in the IBM dictionary definitions where an
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` 7 entity is defined as in a database anything about which
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` 8 information can be stored.
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` 9 And another later dictionary from --
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` 10 definition from IBM, IBM dictionary definition, entity
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` 11 is defined as "any concrete or abstract thing of
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` 12 interest including associations among things."
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` 13 If we go to Slide 47.
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` 14 Going into your -- your question, Your
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` 15 Honor, regarding the distinction between entities and
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` 16 relations and their proposed real-world requirements, if
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` 17 we look at the ordinary meaning of entity, in the
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` 18 context of relational database, there is no requirement
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` 19 that the entity be limited to real-world information,
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` 20 whatever that is.
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` 21 Oracle argues that this is needed to
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` 22 distinguish entities from relations, but, again, our --
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` 23 our proposed constructions are already different.
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` 24 Relation has to link entities, entity has to contain
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` 25 information regarding entities.
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` 1 There is nothing in the intrinsic record
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` 2 that requires that entities be limited to real-world
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` 3 data. The specification does refer to real data and
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` 4 ancillary data, but it doesn't limit entities to real
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` 5 data, and it never uses the term real-world. Oracle
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` 6 points to the file history regarding this, and I'll go
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` 7 over those --
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` 8 THE COURT: Is there anything in the patent
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` 9 that you can point me to that refers to an entity as
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` 10 including relational data?
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` 11 MR. POLLINGER: In the patent itself?
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` 12 THE COURT: Yes.
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` 13 MR. POLLINGER: The -- well, every --
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` 14 THE COURT: An example that, for instance,
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` 15 would fall within the second definition that you've put
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` 16 up on the screen.
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` 17 MR. POLLINGER: The -- the entities -- the
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` 18 entity instance tables containing the rows which are the
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` 19 entities, they have an actual data field as well as a
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` 20 key, keys for accessing those entities. That is
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` 21 relationship type of information. That is what the
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` 22 relationships are using to link together the entities.
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` 23 That's an example. I think there's further examples in
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` 24 the -- the tables in the -- in the source code that was
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` 25 attached to the patents regarding various fields in
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` 1 those tables.
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` 2 And I think the most important thing is that
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` 3 the specification never says that entities cannot
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` 4 contain relationship information. There's -- there's
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` 5 never a clear disavowal of the ordinary meaning of
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` 6 entities.
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` 7 Now, Oracle points to the file history, but
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` 8 the file history statement they point to was rejected by
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` 9 the examiner, and then the claims were ultimately
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` 10 amended and allowed on entirely different grounds.
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` 11 I'll show that in the next slides here.
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` 12 Here is the file history they point to.
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` 13 It's an interim file history statement. It doesn't even
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` 14 refer to Oracle's proposed real-world requirement.
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` 15 There's no mention of real-world. And, again, it was
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` 16 rejected by the examiner. Here is the examiner's
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` 17 rejection after this. And at the bottom here, we see
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` 18 where the examiner wrote, "The examiner disagrees with
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` 19 the applicant where the applicant was trying to
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` 20 distinguish the tables in Green as not being entities."
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` 21 And what the examiner did -- did in the
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` 22 interview is suggested that the claims were allowable on
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` 23 an entirely different ground, namely, the definitional
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` 24 tables. Here are the examiner's summary of the
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` 25 interview. He wrote that "It is suggested that
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` 1 applicant amend claims to recite the context -- the
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` 2 contents of the entity definition table and the way it
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` 3 was used which would overcome the art of record."
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` 4 And that's exactly what the applicant ultimately did.
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` 5 Here we see that, it's Exhibit H. They amended the
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` 6 claims, for example, Claim 69, to specify more
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` 7 particulars of what the relational definition table
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` 8 includes. After that amendment, the claims were then
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` 9 allowed.
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` 10 If we go to Slide 54.
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` 11 Next, I'd like to address Oracle's proposal
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` 12 of impossible construction. This is where they propose
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` 13 only one but not less than two. The specification
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` 14 doesn't require this impossible limitation. The file
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` 15 history doesn't require this impossible limitation. One
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` 16 of skill in the art would not arrive at this possible
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` 17 construction. Persons of ordinary skill in the art
`
` 18 reading the entire intrinsic record would not arrive at
`
` 19 an impossible construction. Instead they would arrive
`
` 20 at a construction that makes sense.
`
` 21 And the Federal Circuit has explained this
`
` 22 in the Becton Dickinson case from as recent as this
`
` 23 summer in July where the Court stated, "A claim
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` 24 construction that renders asserted claims facially
`
` 25 nonsensical cannot be correct. Additionally, the claims
`
`
`
`
`
`Case 2:08-cv-00371-TJW -CE Document 106 Filed 11/23/10 Page 19 of 141 PageID #:
` 5419
`
` 18
`
`
`
` 1 should be construed to preserve their validity, not to
`
` 2 set up an invalidity argument by an impossible
`
` 3 construction and then argue indefiniteness. The Modine
`
` 4 case from the Federal Circuit bears that out.
`
` 5 As does the Federal Circuit's case in --
`
` 6 decision in Exxon where the Court explained that "A
`
` 7 claim that is amenable to construction, however
`
` 8 difficult the task may be, is not indefinite. By
`
` 9 finding claims indefinite, only if reasonable efforts at
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` 10 claim construction prove futile, we accord respect to
`
` 11 the statutory presumption of validity."
`
` 12 If we go to Slide 56, please.
`
` 13 Also, the file history does not warrant this
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` 14 impossible construction. Again, the file history
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` 15 doesn't warrant a narrowing claim construction unless
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` 16 the file history is clear and unmistakable. An
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` 17 ambiguous disavowal will not suffice. You see this most
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` 18 recently from the Federal Circuit's decision in the
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` 19 Schindler case.
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` 20 Oracle points to bits and pieces in the file
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` 21 history, but the file history must be viewed as a whole
`
` 22 not individual bits and pieces. The Federal Circuit has
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` 23 made this clear, and this Court has made this clear.
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` 24 The Federal Circuit explained this in the Ethicon case
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` 25 where the Fed
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