IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`P&RO SOLUTIONS GROUP, INC.
`
`CASE NO. 6:16-CV-00095-RWS
`
`PLAINTIFF
`
`FEBRUARY 14, 2017
`
`VS.
`
`9:11 A.M.
`
`CiM MAINTENANCE, INC.
`
`DEFENDANT
`
`MARKMAN HEARING
`BEFORE THE HONORABLE ROBERT T. SCHROEDER, III
`DISTRICT COURT JUDGE
`TEXARKANA, TEXAS
`
`APPEARANCES
`
`MR. MICHAEL C. GREENBAUM
`MR. AMEYA V. PARADKAR
`Blank & Rome, LLP
`1825 Eye Street, NW
`Washington, DC 20006
`
`MR. ABRAN JAMES KEAN
`Erise, IP, PA
`5600 Greenwood Plaza Blvd., Suite 200
`Greenwood Village, CO 80111
`
`MR. WILLIAM ROBERT LAMB
`Gillam & Smith, LLP
`303 South Washington Avenue
`Marshall, TX 75670
`
`FOR THE PLAINTIFF
`
`FOR THE DEFENDANT
`
`FOR THE DEFENDANT
`
`---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
`Prepared by:
`THERESA SAWYER, CCR
`6201 South 43 Street
`rd
`Rogers, AR 72758
`(479-866-0140)
`(tjsawyer2000@yahoo.com)
`
`
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`P&RO SOLUTIONS GROUP, INC.
`
`CASE NO. 6:16-CV-00095-RWS
`
`PLAINTIFF
`
`FEBRUARY 14, 2017
`
`VS.
`
`9:11 A.M.
`
`CiM MAINTENANCE, INC.
`
`DEFENDANT
`
`MARKMAN HEARING
`BEFORE THE HONORABLE ROBERT T. SCHROEDER, III
`DISTRICT COURT JUDGE
`TEXARKANA, TEXAS
`
`APPEARANCES
`
`MR. MICHAEL C. GREENBAUM
`MR. AMEYA V. PARADKAR
`Blank & Rome, LLP
`1825 Eye Street, NW
`Washington, DC 20006
`
`MR. ABRAN JAMES KEAN
`Erise, IP, PA
`5600 Greenwood Plaza Blvd., Suite 200
`Greenwood Village, CO 80111
`
`MR. WILLIAM ROBERT LAMB
`Gillam & Smith, LLP
`303 South Washington Avenue
`Marshall, TX 75670
`
`FOR THE PLAINTIFF
`
`FOR THE DEFENDANT
`
`FOR THE DEFENDANT
`
`---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
`Prepared by:
`THERESA SAWYER, CCR
`6201 South 43 Street
`rd
`Rogers, AR 72758
`(479-866-0140)
`(tjsawyer2000@yahoo.com)
`
`
`
`-2-
`
`PROCEEDINGS HELD FEBRUARY 14, 2017
`
`THE COURT: Mrs. Schroeder, if you would, call the
`case for us.
`MS. SCHROEDER: Docket number 6:16-CV-95, P&RO
`Solutions Group, Inc. versus CiM Maintenance, Inc.
`THE COURT: Announcements for the record?
`MR. GREENBAUM: Your Honor, Michael Greenbaum and
`Ameya Paradkar appearing for the plaintiff P&RO Solutions Group,
`Inc.
`
`THE COURT: Good morning. Welcome.
`MR. LAMB: Good morning, Your Honor. Bobby Lamb and
`Abe Kean for defendant, and we’re ready to proceed.
`THE COURT: Good morning. Welcome. Appreciate
`everyone being here today. I don’t know if the parties have
`discussed a time allotment for this morning’s Markman hearing.
`I don’t know if you think it’s necessary. I know we only have
`four terms, so the parties -- have you discussed that?
`MR. GREENBAUM: No, we have not, Your Honor.
`THE COURT: All right. Well, let’s just proceed and
`see how long it -- you’ve got me at least until noon. How about
`that? Is that fair enough?
`MR. GREENBAUM: Fair enough, Your Honor.
`THE COURT: All right. And let me also just state for
`the record that earlier this morning the court delivered to
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`counsel a set of preliminary constructions on the disputed
`terms, and obviously my purpose in giving that out in advance of
`the hearing is not to dissuade either side from making any
`arguments they want to make, but rather to allow you to, you
`know, focus your time and energy on where you think the court
`has gone most astray.
`I, obviously, do reserve the right to, and do, change
`constructions based on arguments that are received at the
`hearing, so I hope you’ll take those proposed constructions in
`that -- in that spirit. So who would like to go first on the
`first term?
`MR. KEAN: Your Honor, we agree with the preliminary
`construction on that one, so it might make the most sense for
`Mr. Greenbaum to go first.
`THE COURT: That’ll be fine. Mr. Greenbaum?
`MR. GREENBAUM: I’ll be happy to go first, Your Honor.
`Good morning, Your Honor. I’m a little troubled by
`the -- sorry, the mic is really loud. I’m really troubled by
`your preliminary construction on “plain and ordinary meaning” on
`a couple of grounds, I think primarily because the defendant
`hasn’t set forth any plain and ordinary meaning while asserting
`that that’s the plain and ordinary meaning.
`And also because I’m not sure that it adequately
`distinguishes between the phrase “dragging and dropping” and
`“dragging and dropping the work orders”. So I’d like to provide
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`a little tutorial about why plaintiff’s construction, as set
`out, supported by our expert Declaration, should be a little
`more than really plain and ordinary meaning of moving a
`graphical representation of work orders resulting in a
`recalculation of relational linked data, which I think is a
`recognition of how the system actually works and what’s
`happening in order to make the software actually manage work
`orders, which is the whole point of it.
`So as Your Honor is aware, the ‘205 patent is the
`patent at issue here. It was filed in 2004 and is directed to
`planning and scheduling tool assistant software.
`The whole point of the software is so that schedulers
`and planners and maintenance supervisors can extremely quickly
`move work orders, schedules, plan status of work to be
`performed, and manage resources. And these are resources at
`large industrial sites where there’s frequently a lot of
`maintenance, both routine and emergency, that needs to occur by
`a lot of different personnel and it’s difficult to schedule it
`all very efficiently.
`The system of the patent is directed to work with a
`computerized maintenance management system, which I’m going to
`hereafter call CMMS, a database which contains a plurality of
`work orders, hundreds or thousands, that are put into that
`database by maintenance people who are going to schedule work
`that needs to be done in the plant or plants that the CMMS
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`database is set up to take care of.
`The CMMS database is the main repository for all of
`the planning and scheduling data, and particularly the work
`orders, which kind of brings me to where I’d like to go with
`this.
`
`So each work order is not just a graphic on the screen
`as you would see in Windows, for example, but is actually a --
`represents multiple relationally associated data elements, and
`I think that’s the important distinction here.
`How the software of the patent does its manipulation
`is by uniquely interfacing with the CMMS database. Essentially,
`it creates a parallel database at each workstation and allows
`the workers to manipulate the work orders at their own
`workstation while maintaining communication with the CMMS
`database so that the CMMS database is always up to date. And
`I’m going to give you an illustration of that now.
`So in the center of the screen is the CMMS server.
`It’s essentially the master database of work orders. Once the
`PaSTA software of the patent is booted up on each workstation,
`a parallel database is downloaded into each workstation. As
`each user makes changes, those changes are uploaded to the CMMS
`server, and then the CMMS server updates its database and then
`communicates with each of the other users to update their
`parallel database. In that way, as each user is making changes,
`it’s making changes to the central database, and as the patent
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`said, the users are hardly going to notice that they’re not
`directly connected to -- into -- right into the CMMS database
`itself.
`
`And so here’s a graphical representation of each of
`the changes going back to the CMMS server. And the point here,
`Your Honor, is that the CMMS server database has to remain
`inviolate. It’s the central database. It has to always be
`correct. Otherwise, you would have users trying to schedule
`work at times where the work couldn’t be scheduled because, for
`example, all of the personnel available to do the work would
`already be assigned to other work orders.
`So as Your Honor is aware, independent claim 1 is the
`only independent claim. There are four disputed terms.
`Plaintiff is okay with the other three terms as Your Honor has
`posited with those definitions. It’s only the first term,
`“dragging and dropping the work orders” that we think needs to
`be clarified.
`THE COURT: So the first -- the other three, “short
`notice outage section,” “work week sections”, and “planned
`outage sections”, plaintiff’s in agreement that the court’s
`preliminary construction is correct?
`MR. GREENBAUM: Yes, Your Honor. Correct.
`THE COURT: Okay.
`MR. GREENBAUM: So if Your Honor would refer to figure
`2, that’s the main interface that’s designed to do the work week
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`assignments. You can see in the upper lefthand corner of that
`interface it says “work week assignment tool”. That’s what the
`workers use to drag and drop the work orders from the
`unscheduled work side, which is on the right-hand side of figure
`2, to the lefthand side, which is the work weeks. And I have a
`little graphical representation of that also, Your Honor, which
`shows how the underlying data changes as each of the work orders
`is dragged from one side to the other.
`So on this screen, you can see on the lefthand side of
`the work week assignment tool is each of the scheduled weeks.
`On the right-hand side is unscheduled work. And on the right-
`hand side of the screen is the other interface, which is called
`the work week management form, which is used by the management
`to actually perform the work.
`Once it’s all scheduled, you can see there’s gross
`available man hours, total available man hours, and net
`available man hours in a column on the right-hand side. And we
`are now going to move the pump maintenance which is scheduled
`for eight hours from the unscheduled work to the scheduled work.
`And watch what happens to the available man hours on the right-
`hand side. You can see that they were decreased.
`So that’s why the plaintiff thinks that the meaning of
`“dragging and dropping the work order” should include both the
`graphical representation -- moving the graphical representation,
`as well as a recalculation of relationally linked data because
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`that’s the only way that the system will work.
`This is just the support. It’s all in our Brief, Your
`Honor, for that term.
`Counsel, do you want to --
`MR. KEAN: Your Honor, I have some hard copies of this
`presentation of demonstratives if that would be helpful to the
`court.
`
`THE COURT: It would be, yes. Thanks.
`MR. KEAN: May I approach?
`THE COURT: You may. Thank you.
`MR. KEAN: Your Honor, on this term for “drag and
`drop”, the court’s preliminary construction is exactly right,
`and it’s right for one very simple reason. There’s no reason to
`make this claim term or make this claim more complex. It’s
`already simple in the claim and I’ll walk through why that’s the
`case very briefly.
`Here’s claim 1. We’ll step into the specific drag and
`drop concept here in a couple of -- a couple of slides. So this
`is an excerpt of claim 1. What you have here is work orders,
`wherein the work orders can be moved to and from different
`sections by dragging and dropping the work orders using the said
`user interface. That’s already describing what happens. It’s
`already a straightforward concept.
`The plaintiff’s proposed construction here introduces
`some concepts. It introduces the concept of recalculating
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`relationally linked data. One of the problems with construing
`the claim that way is, one, it makes it more complex, because
`now all of a sudden it introduces this notion of recalculating
`relationally linked data.
`Secondly, the notion of relationally linked data, that
`term is nowhere in the intrinsic record, and so it’s not clear
`what that means. And so you’re taking a concept that’s very
`simple in the claim and in the written description, and if you
`were to construe it the way that the plaintiff proposes here, it
`makes it unnecessarily complex and unnecessarily complex by
`introducing new terms that aren’t defined anywhere in the
`intrinsic record.
`And so here’s an example of the specification on this.
`It explains very simply that -- excuse me. This is an excerpt
`from the plaintiff’s expert witness. But their expert witness
`explains that dragging and dropping is the movement of a
`graphical element using a graphical user interface. So this is
`a concept that was well-known at the time. This is not a
`complicated concept that requires further definition. There is
`a generic interpretation of this term, as even their expert
`agrees.
`
`Now, their expert went on to say that it needs to be
`construed here because of some special circumstances. For
`instance, he says there’s a parallel database or a CMMS database
`that’s required and creates a need to further define drag and
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`drop, but if you look at the testimony from their expert, he
`conceded that neither of those concepts are required by claim 1.
`So claim 1, as written, doesn’t require a parallel database. It
`doesn’t require a CMMS database. And so there’s nothing in the
`claim that requires any further definition of drag and drop
`beyond what’s already described there.
`And one final thing worth noting here is, again, they
`want to introduce this concept that it changes the value in
`relationally linked data, and so Dr. Sherman, the plaintiff’s
`expert, in his Declaration and in his deposition, stated that
`dragging and dropping can, and typically does, change a value in
`relationally linked data.
`Now, what that obviously leaves open is the
`possibility that sometimes it does not. So, in other words,
`even plaintiff’s own expert does not agree that dragging and
`dropping in the context of claim 1 must always change the value
`of relationally linked data.
`So in short, the court got it right. This should be
`left plain and ordinary. It should be left plain and ordinary
`because that concept is well-understood, because that concept is
`defined in the claim, and because changing the value in
`relationally linked data only serves to make the claim more
`complex by introducing concepts that are nowhere in the
`intrinsic record.
`So unless there are any questions on that term, that’s
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`all I have there. Thank you, Your Honor.
`THE COURT: Thank you. Mr. Greenbaum?
`MR. GREENBAUM: Thank you, Your Honor. A couple of
`clarifications. I believe when our expert was referring -- he
`was referring to the code in the portion of his transcript that
`Mr. Kean referred to, he wasn’t referring to the claim itself.
`But I think, Your Honor, that the claims -- you know,
`it’s axiomatic that claims must be interpreted in light of the
`intrinsic evidence, and the intrinsic evidence here is the
`patent and the file history, which also includes the software.
`And the whole point of discussing the software is that the --
`there is in the software an explicit disclosure that when a work
`order is dragged and dropped, there is an underlying
`recalculation, and that’s how the whole invention works.
`So I think really the plaintiff’s definition, proposed
`definition, you know, accurately describes, even though it
`perhaps is more complex, as defendant’s counsel has pointed out.
`But it accurately describes what is actually happening in the
`invention. Otherwise, it wouldn’t work.
`THE COURT: Thank you. All right, does the defendant
`want to proceed on the remaining terms?
`MR. KEAN: Sure, Your Honor. Thank you, Your Honor.
`I think to your earlier question about timing, Your
`Honor, I think we can very likely make quick work of your time
`this morning, and I doubt we’ll take the full three hours.
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`We are basically in agreement with every proposed
`construction that you have here. The one thing we’d want to
`note in the short notice outage section and the planned outage
`section, I see that the preliminary construction from the court
`emphasizes that these are different sections. And that’s
`important, and we would encourage the court to maintain that
`distinction.
`Here’s why it’s important. If you look at -- again,
`this is a user interface claim, and if you look at -- this is
`figure 1 from the patent. In figure 1, the short notice outage
`section and the planned outage section are illustrated as
`different things. They’re different portions of the user
`interface. And so we’re -- the defendant is fine with the court
`noting that distinction.
`We used the terminology “visibly separate” in our
`proposed construction, and we think that would also be
`appropriate here if the court were inclined to define it that
`way. In other words, the short notice outage section and the
`planned outage section are visibly separate sections. And the
`reason we included that “visibly separate” language was to
`capture the illustrations and the descriptions in the intrinsic
`record here. So it’s always illustrated as visibly separate
`sections, the short notice outage section and the planned outage
`section. And there’s a reason for that.
`If you look at the intrinsic record -- this is from
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`the specification at column 2 -- the inventors there explain
`that it’s easy to drag and drop from one section to another. So
`you can imagine when you’re interacting with the user interface,
`if you’re going to drag and drop a graphical element from one
`section to another section, it’s important that those be visibly
`separate.
`
`And so in short, we think the court generally got it
`right in the preliminary construction, but we think it would
`also be correct and potentially helpful to the jury to note that
`those are visibly separate sections.
`One other note just on the short notice outage
`section, we note that the court embraced a definition of that
`term that’s from the file history and from the Board of Patent
`Appeals and Interferences, and I just want to state for the
`record that we proposed a different construction there, but we
`don’t disagree. We can live with the court’s acceptance of the
`Board of Patent Appeals and Interferences’ definition there.
`THE COURT: Very well. Okay.
`MR. KEAN: Thank you.
`THE COURT: Thank you very much.
`MR. GREENBAUM: Well, Your Honor, I would agree with
`Mr. Kean, we’re not going to be taking up too much of your time
`here.
`
`I think the point to be made here, Your Honor -- there
`are two points. Number one, the -- you know, plaintiff is in
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`agreement with your proposed definitions for “short notice
`outage section”, “work week sections”, and “planned outage
`section”. I don’t think there’s any rationale, legal or
`factual, for Mr. Kean’s proposal to narrow those further to
`distinct. Certainly not in the claim language.
`And I’d just note that if you look at figure 2 up on
`the screen, you can see highlighted there’s a yellow section of
`the interface. That’s just a button. So when you push any of
`those three buttons, what’s going to happen is the corresponding
`work orders are going to appear in the unscheduled work section.
`So I think it’s appropriate just to call it a portion of the
`user interface rather than having to say that they’re distinct.
`But I would like to make the point once again, Your
`Honor, that this is not just moving graphical elements as you
`would on Windows where you move one icon, you know, for example,
`into a place where it’s going to be recorded onto a thumb drive.
`This is causing a recalculation of all of the work orders and
`many or all of the data elements of the work orders so that an
`adequate schedule that can actually be executed is quickly
`arrived at.
`And that’s all I have, Your Honor.
`THE COURT: Okay. Any response?
`MR. KEAN: Nothing further from our side, Your Honor.
`I think your preliminary --
`THE COURT: This is record time.
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`MR. KEAN: I think your preliminary constructions have
`achieved basically a consensus.
`MR. GREENBAUM: Your Honor, I’ve put a lot of work
`
`into it.
`
`THE COURT: Well, I do appreciate -- obviously, I
`appreciate that quick work of these and the briefing that was
`done. I appreciate the work, obviously, of the technical
`advisor, Mr. Egan.
`I take seriously your comments, Mr. Greenbaum, with
`respect to the first term, and as I noted at the beginning, I
`can, and do, change proposed constructions from time to time
`based on the comments that are made at the hearing. So I will
`consider the comments that you had with respect to that term and
`anticipate getting an order out relatively quickly.
`I will note, I think, that -- there are three motions,
`I think, that are pending. Defendant had initially filed a 101
`motion, I think, and then more recently filed a Motion for Leave
`to File a Supplemental Brief to the Motion to Dismiss, and I
`understand the plaintiffs do no oppose that and have -- the
`parties have agreed that the plaintiff will get an eight-page
`response to that.
`Have I summarized that accurately?
`MR. KEAN: Yes, Your Honor.
`MR. GREENBAUM: Yes, Your Honor.
`THE COURT: Okay. Very well. That motion will be
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`granted. How much time does the defendant need to get that
`motion -- Supplemental Brief on file?
`MR. KEAN: Our Supplemental Brief is on file, Your
`
`Honor.
`
`THE COURT: Already on file?
`MR. KEAN: Yes. So the plaintiffs just have a
`response to do.
`THE COURT: Okay. Well, Mr. Greenbaum, how much time
`to the plaintiffs need?
`MR. GREENBAUM: A week, Your Honor?
`THE COURT: A week’s fine. Yeah.
`MR. GREENBAUM: Two weeks?
`THE COURT: Two weeks is fine. Any objection to two
`
`weeks?
`
`MR. KEAN: No objection, Your Honor.
`THE COURT: All right. We’ll give you two weeks, Mr.
`Greenbaum, from today. How about that? And if you get it in
`early, that’ll be fine.
`MR. GREENBAUM: Thank you.
`THE COURT: And then I guess the broader question on
`that is, do the parties think a short hearing on that motion
`would be helpful?
`MR. KEAN: Yes, I do think that would be helpful once
`it’s fully briefed, Your Honor.
`THE COURT: Okay.
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`MR. KEAN: I think it’s an important issue that
`potentially resolves the case. And I think to the extent
`argument would be helpful to the court on that, we’d certainly
`be happy to come here and present it.
`THE COURT: I always find argument helpful. So why
`don’t we do this. Let us look at our schedule. We’ve got a
`pretty big -- we’ve got a pretty big March, but we will come up
`with a morning or an afternoon when we can schedule a hearing on
`the 101, hopefully in March, and get that on the calendar. So
`we’ll endeavor to do that within the next -- within the next few
`days.
`
`And then likewise, I understand there’s a Motion to
`Compel which was recently filed by the plaintiff.
`MR. GREENBAUM: Yes, Your Honor.
`THE COURT: All right. Has the defendant responded to
`
`that yet?
`
`MR. KEAN: We’ve not responded via briefing, Your
`Honor. We sent a letter to the plaintiff. We think the motion
`was premature and inappropriate because we didn’t have 14 days
`to respond to their request. And so we’re hopeful that the
`parties are able to work this out. If not, we plan to respond
`later this week.
`THE COURT: Okay. Fair enough. That’ll be fine.
`Obviously, to the extent you can, you know, either work it out
`entirely or at least narrow the areas of disagreement, the court
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`always appreciates that. But to the extent you can’t, you know,
`let -- the better practice is to go ahead and let’s get it --
`let’s get the issue joined, and bring it to our attention, and
`we’ll -- if it’s necessary for a hearing, we can set that at the
`same time we do the 101 hearing. But, otherwise, we can take a
`look at it once it’s fully briefed and make a determination at
`that point about whether we can go ahead and rule on the basis
`of the papers or hold it over for a hearing.
`All right, well, thank you. Anything further?
`MR. GREENBAUM: No, Your Honor.
`MR. KEAN: Nothing further, Your Honor.
`THE COURT: All right. Safe travels to you all.
`Thanks for coming.
`(WHEREIN THE HEARING WAS CONCLUDED.)
`
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`COURT REPORTER’S CERTIFICATE
`
`I, THERESA SAWYER, do hereby certify that the foregoing is a 1true and
`
`correct transcript from the record of proceedings in the above—emitted matter.
`
`THERESA SAWYER
`
`a:
`
`%
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`CERTIFIED COURT REPORTER, #235
`
`TRANSCRIBER
`
`FEBRUARY 16, 2017
`
`(DATE)
`
`
`
`|PR2017-00516
`
`CIM Maintenance, Inc. v. P&RO Solutions Group, Inc.
`
`P&RO Ex. 2003
`
`Page 19 ofJL
`
`
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