Case 2:14-cv-00903-JRG Document 131 Filed 08/13/15 Page 1 of 123 PageID #: 6479
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Civil Action No. 2:14-CV-903-JRG
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`BMC SOFTWARE, INC.,
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`v.
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`SERVICENOW, INC.,
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`Defendant.
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`Plaintiff,
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`MEMORANDUM OPINION AND ORDER
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`On July 10, 2015, the Court held a hearing to determine the proper construction of the
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`disputed claim terms in United States Patent Nos. 5,978,594 (“the ’594 Patent”), 6,816,898 (“the
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`’898 Patent”), 6,895,586 (“the ’586 Patent”), 7,062,683 (“the ’683 Patent”), 7,617,073 (“the ’073
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`Patent”), 8,646,093 (“the ’093 Patent”), and 8,674,992 (“the ’992 Patent”) (collectively, the
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`“Asserted Patents”). After considering the arguments made by the parties at the hearing and in
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`the parties’ claim construction briefing (Dkt. Nos. 99, 106, and 108), the Court issues this Claim
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`Construction Memorandum and Order.
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`Case 2:14-cv-00903-JRG Document 131 Filed 08/13/15 Page 2 of 123 PageID #: 6480
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`TABLE OF CONTENTS
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`I.
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`II.
`III.
`IV.
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`BACKGROUND ................................................................................................................ 4
`A.
`The ’586 Patent...................................................................................................... 4
`B.
`The ’898 Patent...................................................................................................... 6
`C.
`The ’594 Patent...................................................................................................... 8
`D.
`The ’683 Patent.................................................................................................... 11
`E.
`The ’093 Patent.................................................................................................... 14
`F.
`The ’073 Patent.................................................................................................... 16
`G.
`The ’992 Patent.................................................................................................... 18
`APPLICABLE LAW ........................................................................................................ 21
`CONSTRUCTION OF AGREED TERMS ...................................................................... 23
`CONSTRUCTION OF DISPUTED TERMS ................................................................... 25
`A.
`The ’586 Patent.................................................................................................... 25
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`1. “sharing the plurality of objects with a plurality of the one or more computer
`system[s]” ............................................................................................................ 25
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`2. “hierarchical namespace” ............................................................................. 29
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`3. “dynamically inherits traits from the prototype” and “wherein the values of
`the traits inherited from the prototype change dynamically” ............................... 33
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`4. “traits” ........................................................................................................... 37
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`B.
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`The ’898 Patent.................................................................................................... 42
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`1. “periodically” ................................................................................................ 42
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`2. “script-based program” ................................................................................. 46
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`3. “service monitor” .......................................................................................... 49
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`C.
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`The ’594 Patent.................................................................................................... 55
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`1. “interpreting the instructions” ....................................................................... 55
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`2. “interpretable high-level computer programming language” ....................... 58
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`3. “uninterpreted form” and “stored on the storage device in their uninterpreted
`form” ................................................................................................................... 61
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`Case 2:14-cv-00903-JRG Document 131 Filed 08/13/15 Page 3 of 123 PageID #: 6481
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`D.
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`The ’683 Patent.................................................................................................... 65
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`1. “node” and “nodes” ...................................................................................... 65
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`2. “fault model” and “fault model having a plurality of nodes” ....................... 70
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`3. “enterprise” ................................................................................................... 73
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`4. “up-stream,” “most up-stream,” and “down-stream” .................................... 76
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`5. “a root cause” ................................................................................................ 79
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`6. “impact value” .............................................................................................. 81
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`E.
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`The ’093 Patent.................................................................................................... 84
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`1. “license certificate” ....................................................................................... 84
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`2. “exception indication” .................................................................................. 88
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`F.
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`The ’073 Patent.................................................................................................... 91
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`1. “wherein the first and second indicator are each separately visible at the
`same time on a single display window of a display unit” ................................... 91
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`2. “subcomponent” and “IT subcomponent” ..................................................... 96
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`3. “IT component processor,” “IT subcomponent processor,” and “processor” 99
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`G.
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`The ’992 Patent.................................................................................................. 101
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`1. “importance” and “importance of the corresponding service” .................... 101
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`2. “service level agreement (SLA)” and “SLA violation” ............................. 105
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`3. “graph” and “node” .................................................................................... 108
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`4. “variable graphical image,” “a variable graphical image positioned with the
`node,” “spotlight,” and “displaying a spotlight with each of the nodes of the
`plurality of nodes” ............................................................................................. 113
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`V.
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`CONCLUSION ............................................................................................................... 118
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`Case 2:14-cv-00903-JRG Document 131 Filed 08/13/15 Page 4 of 123 PageID #: 6482
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`I.
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`BACKGROUND
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`A. The ’586 Patent
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`The ’586 Patent is titled “Enterprise Management System and Method which Includes a
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`Common Enterprise-wide Namespace and Prototype-based Hierarchical Inheritance.” It was
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`filed on August 30, 2000, and issued on May 17, 2005. The ’586 Patent generally relates to an
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`improved namespace and object description system for enterprise management. See ’586 Patent
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`at Abstract.1
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`The specification states that “the term ‘namespace’ generally refers to a set of names in
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`which all names are unique,” and that “[a] namespace is typically a logical organization and not
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`a physical one.” Id. at 1:52–54; 2:12–13. The specification describes an embodiment where
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`“[t]he namespace comprises a logical arrangement of the objects, stored hierarchically.” Id. at
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`3:62–63. The specification states that “a plurality of objects may be added to the namespace,
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`wherein the objects relate to software and hardware of the one or more computer systems.” Id. at
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`3:63–65. The specification adds that “at least one of the objects is a prototype and at least one of
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`the objects is an instance.” Id. at 4:8–10.
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`The specification defines “prototype” as “an object in a namespace from which attributes,
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`values, and/or children are dynamically inherited by another object.” Id. at 14:44–46. The
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`specification further defines “instance” as “an object in a namespace which dynamically inherits
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`attributes, values, and/or children from another object in the namespace.” Id. at 14:47–49. The
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`specification states that “[t]he instance inherits from the prototype traits such as attribute values
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`                                                            
`1 The Abstract of the ’586 Patent follows:
`A system and method for providing an improved namespace and object
`description system for enterprise management are disclosed. The system and
`method employ a hierarchical namespace with objects including prototypes and
`instances where an instance inherits traits from a prototype, such as attribute
`values and/or child objects. 
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`Case 2:14-cv-00903-JRG Document 131 Filed 08/13/15 Page 5 of 123 PageID #: 6483
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`and/or child objects.” Id. at 4:8–10. The specification states that Figure 7 illustrates an example
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`of a namespace which includes a prototype-instance relationship. Id. at 14:49–51.
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`
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`Id. at Figure 7. The specification states that Figure 7 illustrates a “dynamic inheritance link from
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`object ‘b’ 456 to object ‘a’ 454; the link is shown as a dashed arrow.” Id. at 14:53–54. The
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`specification further states that “[o]bject ‘a’ 454 functions as the prototype and object ‘b’ 456
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`functions as the instance.” Id. at 14:54-55. The specification concludes that “object ‘b’ 456
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`dynamically inherits the attributes, values, and children of object ‘a’ 454.” Id. at 4:55–57. For
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`example, “object ‘b’ 456 has an attribute called ‘x’ of its own and also inherits the attribute ‘y’
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`from object ‘a’ 454.” Id. at 14:60–62.
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`Claim 1 of the ’586 Patent is representative of the asserted claims and recites the
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`Case 2:14-cv-00903-JRG Document 131 Filed 08/13/15 Page 6 of 123 PageID #: 6484
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`following elements (disputed terms in italics):
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`1. A method for managing an enterprise, wherein the enterprise
`comprises one or more networked computer systems, the
`method comprising:
`providing a hierarchical namespace;
`adding a plurality of objects to the namespace, wherein the
`objects relate to software and hardware of the one or more
`computer systems;
`sharing the plurality of objects with a plurality of the one or
`more computer system, wherein at least one of the objects
`is a prototype and at least one of the objects is an instance,
`wherein the instance dynamically inherits traits from the
`prototype; and wherein the values of the traits inherited
`from the prototype change dynamically.
`
`B. The ’898 Patent
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`
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`The ’898 Patent is titled “Interfacing External Metrics into a Performance Management
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`System.” It was filed on August 16, 2000, and issued on November 9, 2004. The ’898 Patent
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`generally relates to performing operations on performance management data, and generating
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`output data for display using collected performance management data. See ’898 Patent at
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`Abstract.2
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`The specification describes Figure 3 as illustrating “a data flow diagram of the claimed
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`invention.” Id. at 7:13–14.
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`                                                            
`2 The Abstract of the ’898 Patent follows:
`A method and apparatus for network management is described. In one
`embodiment, a method comprises collecting performance data having
`accompanying meta data including information defining the performance
`management data and information indicating operations to be performed on the
`performance management data, and generating output data for display using
`collected performance management data according to the information indicating
`the operations to be performed on the performance management data.  
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`Case 2:14-cv-00903-JRG Document 131 Filed 08/13/15 Page 7 of 123 PageID #: 6485
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`Id. at Figure 3. Referring to Figure 3, the specification states that “a user provides at least one
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`script-based program [110] to the meta API 130.” Id. at 7:14–15. The specification further states
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`that “[i]n one embodiment, the user provides the script-based program by copying the script into
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`a directory server on a server used by the network managing system (e.g., network monitor
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`150).” Id. at 7:15–18. The specification adds that “[t]he user may also provide information 120
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`to the meta API.” Id. at 7:22–23. The specification further discloses that “[i]nformation 120 may
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`comprise poling [sic] rate, IP address, names and types, and units of input and output variables.”
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`Id. at 7:23–24. “In other words, information 120 comprise user defined customized data types.”
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`Id. at 7:24–26.
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`The specification further states that “[n]etwork monitor 150 collects meta data and data
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`defined by the script-based programs from the network 160 using service monitor 140.” Id. at
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`7:28–30. The specification states that “[t]he returned data 170 is then processed by network
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`monitor 150.” Id. at 7:30–31. The specification adds that “[t]he processing by network monitor
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`150 may include generated customized graphs 181, customized records 182, and/or setting an
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`Case 2:14-cv-00903-JRG Document 131 Filed 08/13/15 Page 8 of 123 PageID #: 6486
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`alarm 183.” Id. at 7:31–34.
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`Claim 6 of the ’898 Patent is representative of the asserted claims and recites the
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`following elements (disputed terms in italics):
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`6. A method for providing an interface between a user and a
`performance management
`system,
`the performance
`management system being connected with a network, the
`network including a plurality of components coupled by a
`plurality of connections, the performance management
`system collecting data of the components, the method
`comprising:
`receiving at least one script-based program from the user, the
`script-based programs defining data types not provided by
`the performance management system;
`integrating the program to the performance management system
`as a service monitor, the performance management system
`using the service monitor to periodically collect data of
`the defined data types from the components.
`
`C. The ’594 Patent
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`
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`The ’594 Patent is titled “System for Managing Computer Resources Across a
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`Distributed Computing Environment by First Reading Discovery Information about How to
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`Determine System Resources Presence.” It was filed on March 6, 1997, and issued on
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`November 2, 1999. The ’594 Patent generally relates to method and apparatus for managing a
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`computer network. See ’594 Patent at Abstract.3
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`                                                            
`3 The Abstract of the ’594 Patent follows:
`A method and apparatus are disclosed for managing a computer network. A
`manager software system is installed on a network management computer system
`within the network, and one agent software system is installed on each of the
`server computer systems in the network. A knowledge module in the form of a
`text fie [sic] is stored on the network manager computer system so that the
`manager software system can transmit knowledge to the various agent software
`systems throughout the network, for use by the agents in monitoring and
`managing the server on which they are installed. Interpretable script language
`programs are present on all computers in the network, expanding and customizing
`the functionality of the agent software systems. A method is disclosed for using
`the high level interpretable script language programs in connection with the agent
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`Case 2:14-cv-00903-JRG Document 131 Filed 08/13/15 Page 9 of 123 PageID #: 6487
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`The Background section of the specification states that a need existed “for a network
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`management system that [would] provide an increase in automation and efficiency for network
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`management and a decrease in the complexity of such management.” Id. at 1:56–58. The
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`specification states that “FIG. 8 shows a preferred procedure, implemented according to the
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`method of the invention, for discovering resources on a server computer system 14 in the
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`network using a high-level interpretable language.” Id. at 7:45–48.
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`
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`                                                                                                                                                                                                
`software systems for discovering resources on the network, monitoring aspects of
`resources, and taking recovery actions automatically in the event of an alarm
`condition.  
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`Case 2:14-cv-00903-JRG Document 131 Filed 08/13/15 Page 10 of 123 PageID #: 6488
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`Id. at Figure 8. The specification discloses that “[t]he discovery procedure is initiated either in
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`step 116 when the timer within agent software system 36 indicates that a discovery procedure
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`stored in run queue 71 is ready to be executed, or in step 118 when manager software system 34
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`sends a message to agent software system 36 indicating that a discovery procedure should be
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`executed.” Id. at 7:48–53. The specification adds that “[w]hen the discovery procedure begins,
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`in step 120, the agent software system 36 reads knowledge database 75 to determine the name of
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`a resource class that should be searched for.” Id. at 7:56–58. The specification states that “[i]n
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`step 122, if a resource class is found that should be searched for, execution continues with step
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`124.” Id. at 7:58–59.
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`The specification continues that “[i]n step 124, the knowledge database on the server is
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`read to find the name and location of the script program that will search for the particular
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`resource in question.” Id. at 7:60–62. The specification states that “[i]n step 126, the script
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`program indicated is found,” and “[i]n step 128, agent software system 36 determines whether or
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`not the script program has yet been compiled.” Id. at 7:62–65. The specification further
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`discloses that if the script program has not been compiled, “script program compiler 64 compiles
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`the script program in step 130 and execution continues with step 132, in which the script
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`program is interpreted, thereby searching for the presence of the resource in question.” Id. at
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`7:65–8:2. The specification further states that “[t]he results of the search are stored in step 134,
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`and the process continues at step 120 once again until in step 122 no further resources are found
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`to be searched for, in which case execution continues with step 136.” Id. at 8:2–6.
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`Claim 1 of the ’594 Patent is representative of the asserted claims and recites the
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`following elements (disputed terms in italics):
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`1. A method of determining whether a resource is present on a
`computer system, comprising the steps of:
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`(a) reading, from a storage device coupled to the computer
`system, discovery information about how to determine
`whether the resource is present on the computer system;
`(b) finding, on the storage device, instructions that are referred
`to in the discovery information, that are written in an
`interpretable high-level computer programming language,
`and that are stored on the storage device in their
`uninterpreted form;
`(c) interpreting the instructions for the purpose of collecting
`data for use in determining whether the resource is present
`on the computer system; and
`(d) determining, responsive to the collected data, whether the
`resource is present on the computer system.
`
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`D. The ’683 Patent
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`The ’683 Patent is titled “Two-phase Root Cause Analysis.” It was filed on April 22,
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`2003, and issued on June 13, 2006. The ’683 Patent generally relates to a two-phase method to
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`perform root-cause analysis over an enterprise-specific fault model. See ’683 Patent at Abstract.4
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`The specification states that Figure 1 is a flowchart that illustrates an enterprise
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`monitoring and analysis method in accordance with one embodiment of the invention.
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`                                                            
`4 The Abstract of the ’683 Patent follows:
`A two-phase method to perform root-cause analysis over an enterprise-specific
`fault model is described. In the first phase, an up-stream analysis is performed
`(beginning at a node generating an alarm event) to identify one or more nodes that
`may be in failure. In the second phase, a down-stream analysis is performed to
`identify those nodes in the enterprise whose operational condition are impacted by
`the prior determined failed nodes. Nodes identified as failed as a result of the up-
`stream analysis may be reported to a user as failed. Nodes identifies [sic] as
`impacted as a result of the down-stream analysis may be reported to a user as
`impacted and, beneficially, any failure alarms associated with those impacted
`nodes may be masked. Up-stream (phase 1) analysis is driven by inference
`policies associated with various nodes in the enterprise’s fault model. An
`inference policy is a rule, or set of rules, for inferring the status or condition of a
`fault model node based on the status or condition of the node’s immediately
`down-stream neighboring nodes. Similarly, down-stream (phase 2) analysis is
`driven by impact policies associated with various nodes in the enterprise’s fault
`model. An impact policy is a rule, or set of rules, for assessing the impact on a
`fault model node based on the status or condition of the node’s immediately up-
`stream neighboring nodes. 
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`Case 2:14-cv-00903-JRG Document 131 Filed 08/13/15 Page 12 of 123 PageID #: 6490
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`’683 Patent at Figure 1. Referring to FIG. 1, the specification discloses “a model based
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`reasoning (MBR) approach 100 to enterprise monitoring and fault analysis in accordance with
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`the invention uses a combination of up-stream analysis (based on the evaluation of inference
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`policies) and down-stream analysis (based on the evaluation of impact policies) on an Impact
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`Graph to efficiently and effectively identify and isolate root cause faults from the myriad of
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`event notifications or alarms, many or most of which may be ‘sympathetic,’ that one or more
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`underlying fault conditions may trigger.” Id. at 4:31–40. The specification adds that “[o]n event
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`notification (block 105), an up-stream analysis of the Impact Graph beginning with the node
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`receiving the event notification is performed (block 110).” Id. at 4:40–43. The specification
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`states that an “[u]p-stream analysis in accordance with block 110 may modify the status value of
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`zero or more nodes in the enterprise’s Impact Graph up-stream from the node receiving the event
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`Case 2:14-cv-00903-JRG Document 131 Filed 08/13/15 Page 13 of 123 PageID #: 6491
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`notification.” Id. at 4:43–46. The specification describes the next step as “the furthest up-stream
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`node (relative to the node receiving the initial event notification) whose status value was
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`modified in accordance with block 110 is selected as a starting point from which a down-stream
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`analysis is performed (block 115).” Id. at 4:46–50. The specification further states that “[d]own-
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`stream analysis in accordance with block 115 may modify the impact value of zero or more
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`nodes in the enterprise’s Impact Graph down-stream from the down-stream analysis’ starting
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`node.” Id. at 4:50–53.
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`The specification adds that “[o]ne of ordinary skill in the art will recognize that if there is
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`more than one node equally distant from the node receiving the event notification and which has
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`had its status value modified in accordance with block 110, an arbitrary one of these nodes may
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`be selected to begin the down-stream analysis in accordance with block 115.” Id. at 4:53–59.
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`The specification further states that “[w]ith up-stream and down-stream analysis completed
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`enterprise status, including identification of one or more root-cause failures and identification of
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`sympathetic event notifications, may be reported (block 120).” Id. at 4:60–63. The specification
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`concludes that “those furthest up-stream nodes in the Impact Graph having a status value
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`indicative of failure are identified as ‘root causes.’” Id. at 4:63–65.
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`Claim 1 of the ’683 Patent is representative of the asserted claims and recites the
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`following elements (disputed terms in italics):
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`1. An enterprise fault analysis method, wherein at least a portion
`of the enterprise is represented by a enterprise-specific
`fault model having a plurality of nodes, comprising:
`receiving an event notification for a first node in the fault
`model;
`performing an up-stream analysis of the fault model beginning
`at the first node;
`identifying a second node, the second node having a status
`value modified during the up-stream analysis to indicate a
`failed status;
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`Case 2:14-cv-00903-JRG Document 131 Filed 08/13/15 Page 14 of 123 PageID #: 6492
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`performing a down-stream analysis of the fault model beginning
`at the second node;
`identifying those nodes in a contiguous path between the second
`node and the first node in the fault model whose impact
`values indicate an impacted performance condition in
`accordance with the down-stream analysis;
`reporting the second node as a root cause of the received event
`notification; and
`reporting at least one of the identified nodes as impacted by the
`root cause of the received event notification and not as
`root causes of the received event notification.
`
`
`E. The ’093 Patent
`
`The ’093 Patent is titled “Method and System for Configuration Management Database
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`Software License Compliance.” It was filed on December 9, 2009, and issued on February 4,
`
`2014. The ’093 Patent generally relates to a software license engine that allows an enterprise to
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`model software license contracts and evaluate deployment of software for compliance with the
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`software license contracts. See ’093 Patent at Abstract.5
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`The specification states that Figure 2 is “a block diagram illustrating a system 200
`
`according to one embodiment with a Configuration Management Database (“CMDB”) server
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`110 and a pair of clients 210 and 220.” Id. at 3:50–52.
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`                                                            
`5 The Abstract of the ’093 Patent follows:
`A software license engine allows an enterprise to model software license contracts
`and evaluate deployment of software for compliance with the software license
`contracts. Deployment of software products in the enterprise is modeled in a
`configuration management database. The software license engine maintains a
`license database for connecting software license contracts with software
`deployment modeled by the configuration management database. Users of the
`software license engine may use license types that are predefined in the software
`license engine or may define custom license types. The software license engine
`may indicate compliance or non-compliance with the software license contracts.  
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`Case 2:14-cv-00903-JRG Document 131 Filed 08/13/15 Page 15 of 123 PageID #: 6493
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`Id. at Figure 2. The specification states that “[t]he CMDB server 110 may comprises [sic] a
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`number of software components, including a web services component 230 for interacting with a
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`web client computer 210, and an Application Programming Interface (API) 240 for interacting
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`with an application client computer 220.” Id. at 3:53–57. The specification further states that
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`“[t]he application client computer 220 may be a computer running any application designed to
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`interact with the CMDB server 110 through the API, including, for example, a desktop computer
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`with a CMDB client application . . . that provides a graphical user interface (GUI) to the user of
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`the client computer 220.” Id. at 3:57–65. The specification adds that “[t]he CMDB server 110
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`also comprises a license engine 250” and “other software components for providing CMDB
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`functionality as desired.” Id. at 3:66–4:3.
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`The specification continues that “[d]ata for the CMDB server 110 is illustrated as stored
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`in a CMDB datastore 260 and a license datastore 270.” Id. at 4:4–5. The specification states that
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`“[t]he CMDB datastore 260 comprises the storage for the conventional CMDB data, including
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`CIs [Configuration Item].” Id. at 4:5–7. The specification further states that “[t]he license
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`datastore 270 provides storage for to model software contracts, including rules against which the
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`CIs are evaluated for software license compliance and other information necessary for processing
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`those rules.” Id. at 4:14–17.
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`Claim 1 of the ‘093 Patent is representative of the asserted claims and recites the
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`following elements (disputed terms in italics):
`
`1. A computer-implemented method, comprising:
`modeling deployment of a software product and a software
`license contract for the software product;
`storing a first model of the modeled deployment of the software
`product in a configuration management database (CMDB)
`by storing information related to the software product as a
`first configuration item in the CMDB and by storing
`information related to the software license contract as a
`second configuration item in the CMDB;
`storing a second model of the modeled software license contract
`for the software product in a license database by
`generating a license certificate corresponding to the
`software license contract and storing the license certificate
`in the license database; and
`the software product for
`evaluating
`the deployment of
`compliance with the software license contract, comprising:
`connecting and comparing the first model and the second
`model by comparing the first configuration item with the
`license certificate and connecting the license certificate
`with
`the second configuration
`item
`responsive
`to
`comparing the first configuration item with the license
`certificate; and generating an exception indication if the
`act of comparing the first model and the second model
`indicates non-compliance with
`the software
`license
`contract.
`
`
`F. The ’073 Patent
`
`The ’073 Patent is titled “System and Method for Assessing and Indicating the Health of
`
`Components.” It was filed on February 28, 2003, and issued on November 10, 2009. The ’073
`
`Patent generally relates to a system and method for visualization of the components of an
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`Case 2:14-cv-00903-JRG Document 131 Filed 08/13/15 Page 17 of 123 PageID #: 6495
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`enterprise system and the rendering of information about the health or status of the enterprise
`
`system. See ’073 Patent at Abstract.6
`
`In the Summary of the Invention section, the specification states that “[t]he invention
`
`comprises using a combination of color codes or other indicators and a combination of
`
`algorithms and/or rules-based systems to control the computation of status/severities to associate
`
`to components and setup the color codes and indicators.” Id. at 2:57–61. The specification adds
`
`that “[t]he invention remedies the disadvantages of using a single color code or indicator for
`
`providing feedback on the health/status or components in a complex Enterprise System.” Id. at
`
`2:64–67. The specification describes Figure 1 as a preferred embodiment. Id. at 3:65–67.
`
`Id. at Figure 1. The specification states that Figure 1 “illustrates the use of two color indicators
`
`in a tree presentation.” Id. at 3:66–67. The specification adds that Figure 1 “shows a
`
`
`
`                                                            
`6 The Abstract of the ’073 Patent follows:
`A system and method for visualization of the components of an enterprise system
`and the rendering of information about the health or status of the enterprise
`system, its components, and/or its subcomponents. The invention uses a
`combination of color codes or other indicators and a combination of algorithms
`and/or rules-based systems to control the computation of status/severities to
`associate to components and setup the color codes and indicators.  
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