Case 6:12-cv-00799-JRG Document 106-1 Filed 01/31/14 Page 1 of 6 PageID #: 2692
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`Case No. 6:12-cv-00799-LED
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`INVENSYS SYSTEMS, INC.,
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`Plaintiff,
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`vs.
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`EMERSON ELECTRIC CO. and
`MICRO MOTION INC., USA,
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`Defendants,
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`and
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`MICRO MOTION INC., USA,
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`Counterclaim-Plaintiff,
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`vs.
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`INVENSYS SYSTEMS, INC.,
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`Counterclaim-Defendant.
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`SECOND DECLARATION OF JAMES DAVIS
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`I, James Davis, do hereby declare as follows:
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`1.
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`I am the same James Davis who previously submitted a declaration in support of
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`Emerson Electric Co.’s Motion for Summary Judgment of Non-Infringement, which is
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`incorporated in its entirety by this reference.
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`Just as with my previous declaration,
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`the
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`information set forth herein is true and correct and the result of my personal knowledge and
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`collected from documents and other information maintained in the ordinary course of business.
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`If called to testify to my declarations’ content, I could do so truthfully and competently.
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`4838-6174-2360.2
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`Case 6:12-cv-00799-JRG Document 106-1 Filed 01/31/14 Page 2 of 6 PageID #: 2693
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`2.
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`As explained in my previous declaration, I am the Vice President of North
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`American Sales for Emerson Process Management LLLP, which is a Delaware limited liability
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`limited partnership that offers, among many other things, pressure, temperature, and flow
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`measurement products, control valves and valve-related instrumentation, process management
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`systems, and process control and automation software as well as provides engineering,
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`consulting, project management, and maintenance services across many industries.
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`3.
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`Also, as I previously explained, Emerson Process Management LLLP is a
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`separate legal entity from Emerson Electric Co. (“Emerson”).
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`4.
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`As I understand it, Emerson’s business is organized into five business platforms:
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`(a) Emerson Process Management (“EPM”), (b) Emerson Industrial Automation, (c) Emerson
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`Network Power,
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`(d) Emerson Climate Technologies, and (e) Emerson Commercial and
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`Residential Solutions. These business platforms are not separate legal entities. Instead, they are
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`brands that various Emerson subsidiaries identify with for the purposes of sales, marketing, and
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`other promotional efforts, among other things.
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`5.
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`Emerson Process Management LLLP is considered part of the EPM business
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`platform.
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`It is one of many separate legal entities associated with the EPM platform.
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`For
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`example, in addition to Emerson Process Management LLLP, Micro Motion, Inc. (“Micro
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`Motion”), Rosemount
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`Inc., Rosemount Nuclear
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`Instrument,
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`Inc., and Emerson Process
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`Management Power & Water Solutions, Inc. are a few of many other entities operating within
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`the EPM platform.
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`6.
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`As the EPM platform is not a legal entity, it does not have any employees.
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`Rather, individuals work for and are representatives of the various subsidiaries that operate under
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`the EPM brand.
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`Case 6:12-cv-00799-JRG Document 106-1 Filed 01/31/14 Page 3 of 6 PageID #: 2694
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`7.
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`Contrary to the representations of Invensys Systems, Inc. (“Invensys”), Jim
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`Cahill, Chief Blogger and Head of Social Media, is neither an employee of Emerson nor EPM.
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`He is employed by Emerson Process Management LLLP. As stated above, Emerson Process
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`Management LLLP is not Emerson; it is a separate legal entity.
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`8.
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`While Mr. Cahill’s blog may promote EPM-related issues and the accused Micro
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`Motion Coriolis flowmeters, the blog posts contain his personal opinions, not the opinions of
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`Emerson Process Management LLLP, Emerson, or any other Emerson subsidiaries that fall
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`within the EPM business platform. This is noted on Mr Cahill’s blog itself.
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`9.
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`Mr. Cahill’s blog has referenced certain videos that Micro Motion created and
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`published relating to Coriolis flowmeters and two-phase flow measurement. These videos are
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`narrated by Joel Weinstein, who is an Engineer employed by Micro Motion, not EPM or
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`Emerson. As I understand it, Emerson had no role in these videos.
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`10. Mr. Cahill’s blog also includes a video interview of Chris Connor, the then
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`Director of Marketing and Business Development for Micro Motion. In this video, Mr. Connor
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`discusses customer input that went into the development of certain Micro Motion Coriolis
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`flowmeters. As I understand it, Emerson had no role in this video.
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`11.
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`In his blog, Mr. Cahill also includes articles relating to the application of Coriolis
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`flowmeters in various industries, including the marine and chemical industries. Micro Motion
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`employees, Charles Bogenberger and Todd Fortman, contributed to these articles.
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`12.
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`In addition to Coriolis flowmeters, Mr. Cahill’s blog covers a variety of topics
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`relevant to the EPM business platform and related industries. For example, Mr. Cahill’s posts
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`highlight upcoming presentations being made by his colleagues that may be of interest to those
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`in process management-related industries. As pointed out by Invensys, Mr. Cahill featured a
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`Case 6:12-cv-00799-JRG Document 106-1 Filed 01/31/14 Page 4 of 6 PageID #: 2695
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`September 18, 2013 article entitled Pressure Measurement for Demanding Nuclear Power
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`Applications, which discussed an informational session being offered by Christopher Victor at
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`recent Emerson Global Users Exchange Conference. Mr. Victor is a Marketing Engineer
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`employed by Rosemount Nuclear Instrument, Inc. Rosemount Nuclear Instrument, Inc. is not
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`Emerson, but a separate legal entity.
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`13.
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`In a February 14, 2012 blog post entitled Securing Ovation Systems per NERC
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`CIP Standards, Cahill discusses a presentation by Michael DeKlavon, which related to certain
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`standards relevant to power producers. Mr. DeKlavon is a Senior Engineer with Emerson
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`Process Management Power & Water Solutions, Inc.; he is neither employed by EPM nor
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`Emerson.
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`14.
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`Cahill’s blog also featured a December 6, 2012 article entitled Inferring Aseptic
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`Valve Diaphragm Maintenance, which included an anecdotal story by Tom Holemans about a
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`pharmaceutical manufacturer’s desire to reduce aseptic valve maintenance costs, a process
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`management issue important in the pharmaceutical industry. Mr. Holemans is an Area Sales
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`Manager, Process Industry, and is employed by Joucomatic S.A.
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`Joucomatic S.A. is not
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`Emerson; it is a Belgian entity.
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`15.
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`Emerson also does not teach customers or potential customers how to use Micro
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`Motion Coriolis flowmeters. Customer education is the responsibility of Micro Motion
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`employees as well as personnel in Emerson Process Management LLLP’s distribution channel,
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`which includes third party sales representatives. For example, Emerson Process Management
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`LLLP recently offered the Emerson Global Users Exchange Conference on September 30
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`through October 4, 2013, which had several courses explaining how to use Micro Motion’s
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`flowmeters. These courses were not led by Emerson employees. Rather, employees of Micro
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`Case 6:12-cv-00799-JRG Document 106-1 Filed 01/31/14 Page 5 of 6 PageID #: 2696
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`Motion, including Anna Pishchulina and Anthony Gentile, Rosemount Inc., including Joel
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`Lemke, and other EPM-related entities,
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`including Omar Aladham, presented during this
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`conference.
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`16.
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`Emerson similarly has no role in customer demonstrations.
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`Contrary to
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`Invensys’s assertion, Emerson has not participated in any “recent” sales demonstration of the
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`accused Micro Motion Coriolis flowmeters that resulted in “Emerson” being awarded a portion
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`of that customer’s business. Emerson does not sell Micro Motion Coriolis flowmeters and has
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`never been awarded any part of that business. Consequently, Emerson would not have issued
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`any invoices for such sales.
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`17.
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`I am aware of the allegations made in the Plaintiff’s Response Brief, Exhibit A,
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`Declaration of Robert Arias, at paragraph 11.
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`I understand that those individuals who worked
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`over the years with the customer identified by Invensys were contacted. None of them recalled
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`that any demonstration occurred as described by Mr. Arias. To the extent such a demonstration
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`actually occurred,
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`it was likely handled by one of Micro Motion’s third-party sales
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`representatives. Emerson does not take part in sales demonstrations to Micro Motion customers.
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`18.
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`Emerson also does not repair or service Micro Motion Coriolis flowmeters. The
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`Certified Field Service personnel for Micro Motion Coriolis flowmeters are employees of Micro
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`Motion or other EPM-related entities. On site calibration work on Micro Motion Coriolis
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`flowmeters is performed by Micro Motion technicians or technicians employed by other EPM-
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`related entities. To contact these technicians, customers phone Micro Motion or may phone the
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`EPM North American Response Center at 1.800.654.7768, which is a hotline operated by
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`employees of Instrument and Valve Services, Inc. or employees of other EPM-related entities.
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`Case 6:12-cv-00799-JRG Document 106-1 Filed 01/31/14 Page 6 of 6 PageID #: 2697
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`I declare under penalty of perjury that the foregoing is true and correct.
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`Executed on January 30, 2014.
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`/s/ James Davis
`James Davis
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`4838-6174-2360.2
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