Case 2:14-cv-00903-JRG Document 99-9 Filed 05/29/15 Page 1 of 13 PageID #: 3336
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`CIVIL ACTION NO. 2:14-CV-903-JRG
`Jury Trial Demanded
`
`
`
`
`
`
`
`BMC SOFTWARE, INC.,
`
`
`
`
`Plaintiff,
`
`v.
`
`
`SERVICENOW, INC.,
`
`
`
`
`Defendant.
`
`
`
`
`
`DECLARATION OF DR. MARK JONES IN SUPPORT OF
`BMC’S OPENING CLAIM CONSTRUCTION BRIEF (REGARDING U.S. PATENT
`NOS. 7,617,073 AND 8,674,992)
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`CIVIL ACTION NO. 2:14-CV-903-JRG
`Jury Trial Demanded
`
`
`
`
`
`
`
`BMC SOFTWARE, INC.,
`
`
`
`
`Plaintiff,
`
`v.
`
`
`SERVICENOW, INC.,
`
`
`
`
`Defendant.
`
`
`
`
`
`DECLARATION OF DR. MARK JONES IN SUPPORT OF
`BMC’S OPENING CLAIM CONSTRUCTION BRIEF (REGARDING U.S. PATENT
`NOS. 7,617,073 AND 8,674,992)
`
`
`
`
`
`
`
`Case 2:14-cv-00903-JRG Document 99-9 Filed 05/29/15 Page 4 of 13 PageID #: 3339
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`Agency involving UCLA and USC), I was responsible for designing algorithms and software for
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`controlling and monitoring a large network of autonomous computer sensor nodes. This software
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`was integrated with software from several other teams around the country for a set of field
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`demonstrations over a three-year period.
`
`11.
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`In the TEAMDEC project for the Air Force Research Laboratory, I led an effort
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`to design and construct a collaborative, Internet-based decision making system. This Java-based
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`system provided a geographically diverse team with Internet-based tools to enable collaborative
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`decision-making. On the server side, the system architecture made extensive use of database
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`technology. This work was awarded first prize at the 2002 AOL/CIT Research Day.
`
`12.
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`Other projects have involved the close coupling of computer hardware and
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`software, including the writing of device drivers and simple operating systems, the design of
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`hardware circuits, the design of new system architectures, architectures for secure computing, the
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`modification of complex operating systems, and software for mediating between complex
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`software packages.
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`13.
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`I have reviewed U.S. Patent Nos. 7,617,073 and 8,674,992 and their prosecution
`
`histories, and their subject matter is within the scope of my education and experience.
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`14.
`
`I have been asked to provide my opinion as to the construction of certain terms
`
`and phrases in the tables below, from the standpoint of one of ordinary skill in the art at the time
`
`of the respective inventions.
`
`’073 Patent
`
`Subcomponent Terms
`
`
`Claim Term
`“subcomponent”
`
`BMC’s Construction
`plain meaning
`
`ServiceNow’s Construction
`Indefinite. Alternatively, “a
`part or portion of a component”
`
`
`
`3
`
`
`
`Case 2:14-cv-00903-JRG Document 99-9 Filed 05/29/15 Page 5 of 13 PageID #: 3340
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`“IT subcomponent”
`
`plain meaning
`
`construe “IT subcomponent.”
`Otherwise, plain meaning.
`
`“display the health status of the
`IT component by showing a
`first indicator for the IT
`component and a second
`indicator for the at least one IT
`subcomponent”
`
`Indefinite. Alternatively, “a
`part or portion of an IT
`component”
`show a first indicator for the IT
`component, and a second
`indicator for the at least one IT
`subcomponent, to display the
`health status of the IT
`component. The indicators are
`displayed via a single act of
`rendering, displaying both
`component and subcomponent
`health status indicators without
`requiring the user to perform
`any affirmative action, so that
`the first and second indicator
`are each separately visible at
`the same time on a single
`display window of a display
`unit
`
`15.
`
`ServiceNow proposes
`
`that “subcomponent” and “IT subcomponent” are
`
`indefinite. For at least the reasons given below, I disagree.
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`16.
`
`ServiceNow’s proposal that “subcomponent” and “IT subcomponent” are
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`indefinite is inconsistent with its suggestion that plain and ordinary meaning governs “IT
`
`component” or “component.” The same should apply to the “subcomponent” terms as the claim
`
`language introduces a “sub” prefix to refer its “conventional” meaning. 6/5/08 Office Action
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`Response at 13 (“The prefix ‘sub’ is used in its conventional manner. That is: ‘subcomponent
`
`used in its conventional manner.”) (quoting a dictionary definition for “sub”: “sub- 1 : under :
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`beneath : below <subsoil> <subcutaneous> <subpier> <subdominant> <subhymenial> 2 a :
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`subordinate : secondary : next lower than or inferior to <subcenter> <subfreshman> <subgenus>
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`b : subordinate portion of : subdivision of: derived from <subcommittee> <subculture>
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`<subdistrict> <sub science>.”) (citing Webster’s Ninth New Collegiate Dictionary (1984)). (Ex.
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`
`
`4
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`
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`Case 2:14-cv-00903-JRG Document 99-9 Filed 05/29/15 Page 6 of 13 PageID #: 3341
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`2.) Thus, the prosecution history describes “components” and “subcomponents” to have their
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`respective plain meaning.
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`17.
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`The patent discusses the terms “component” and subcomponent” in a similar
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`context. ’073, 7:9-10 (“a system for indicating the health status of an IT component and at least
`
`one IT subcomponent.”); 7:16-21 (noting that “a renderer” displays the health statuses of the IT
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`component and the IT subcomponent by showing a “first” indicator for the component and a
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`“second” indicator for the subcomponent); 2:24-30 (“Typically, the color of the component will
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`be determined by the highest severity among the status/alerts of the component itself and its
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`subcomponents or components it depends upon. This means that some information is lost
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`because when the component is assigned a color code, it is not possible to know if it is because
`
`of its own status/alerts or the ones from its subcomponents.”). Hence, based on my review and
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`analysis of the ’073 patent and prosecution history, “IT subcomponent” and “subcomponent” are
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`not indefinite, because, as illustrated above, the patent informs those skilled in the art about the
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`scope of “components” and “subcomponent” with reasonable certainty.
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`18.
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`It is my opinion that SN’s alternative construction also is wrong as it appears to
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`apply a restrictive definition that does not fully reflect the intrinsic evidence above.
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`19. With respect to the phrase, “display the health status of the IT component by
`
`showing a first indicator for the IT component and a second indicator for the at least one IT
`
`subcomponent,” a person of ordinary skill in the art would find SN’s construction as redundant
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`to the claim language surrounding the disputed phrase.
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`20.
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`Accordingly, a person of ordinary skill in the art at the time of the patent would
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`have understood “subcomponent” and related terms to have their plain meaning.
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`Processor Terms
`
`
`
`5
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`
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`Case 2:14-cv-00903-JRG Document 99-9 Filed 05/29/15 Page 7 of 13 PageID #: 3342
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`Claim Term
`
`“IT component processor”
`
`“IT subcomponent processor”
`
`“processor”
`
`
`
`BMC’s Construction
`
`ServiceNow’s Construction
`
`a processor that computes the
`health status of an IT
`component
`a processor that computes the
`health status of an IT
`subcomponent
`construe in the context of the
`surrounding terms
`
`plain meaning
`
`plain meaning
`
`hardware and/or software for
`processing
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`21.
`
`The claim language expressly provides that “an IT component processor” is
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`“adapted to compute a component health status of the IT component,” and that “an IT
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`subcomponent processor” is “adapted to compute a subcomponent health status for the at least
`
`one IT subcomponent.” ’073, 7:11-15. Accordingly, one of ordinary skill in the art at the time of
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`the filing of the patent would view “processor” in the context of its surrounding terms, and as a
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`result, BMC’s proposed constructions are consistent with how one of ordinary skill in the art
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`would understand the disputed terms.
`
`’992 Patent
`
`Graph and Node Terms
`
`Claim Term
`
`“graph”
`
`BMC’s Construction
`plain meaning
`
`“variable graphical image”
`
`“a variable graphical image
`positioned with the node”
`
`“node”
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`
`
`a graphical image having
`multiple attributes that can be
`varied to indicate relative status
`of a node in an IT service
`model
`construe “variable graphical
`image” and “node.” Otherwise,
`plain meaning.
`
`a representation of a
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`6
`
`ServiceNow’s Construction
`a visual representation of nodes
`and the connections between
`the nodes
`plain meaning. Alternatively: a
`graphical image that can be
`changed
`
`Indefinite. Alternatively: an
`image that can be changed and
`is displayed in addition to the
`displayed node
`a visual object connected to and
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