Open Text lawyer shows up to the Juxtacomm Versus Ascential Markman Hearing

Teilhard Technologies and Open Text may have a preliminary agreement to settle a patent dispute but that did not stop Open Text lawyers from turning up to the Markman preliminary Hearing today. A settlement between the parties is not a done deal.

Quick History

In 2007 Teilhard Technologies file a lawsuit Juxtacomm versus Ascential patent infringement case covering a list of 22 parties who sold data integration software that infringed on an ETL patent from Teilhard subsidiary Juxtacomm.

In January 2009 all parties sat down with a court appointed mediator to discuss settlement of the case. Out of that mediation The Small Fish Settle in Juxtacomm versus Ascential Et Al and there were five parties that were reported to be in preliminary settlement talks:

Agreements in principle have been reached between Plaintiff and the following Defendants:
Open Text Corporation
Information Builders, Inc.
CA, Inc.
Fiorano Software, Inc.
InterSystems Corporation

Mediation has been suspended though it will continue. This week Markman Hearings started for this case. To help refresh our memories of Markman I have posted the comments from Steelhard from a previous blog post where he describes how Markman works. In Markman the parties want a decision from the judge on the definitions of terms from the original patent and the overall scope of the patent.

These are the legal teams who showed up to Markman: IBM, SAP - Business Objects, Informatica, MetaStorm, Microsoft, Open Text, Software AG - WebMethods and Sybase.

These are the legal teams who did not show up: Information Builders, CA, Fiorano and InterSystems.

Of the five parties who want a settlement three of them are little fish in that they don’t earn much revenue from data integration software, two of them were medium fish: Information Builders who have eight infringing products and the Genio ETL tool and Open Text who have the subsidiary iWay. Judging by the absence of legal representation of four of the legal teams I am guessing four of the in principle settlements are done deals. It looks like Open Text are keeping their options open or participating in Markman to help with settlement talks.

The Markman Hearing started in Texas on Thursday afternoon and will run for a few days. From the first Markman Hearing Pacer filing here are the terms from the patent that the parties agree on:

Mr. O’Neill outlined agreement on several terms, Metadata database, data bag and agreed that script processor and rule set processor is a software component.

Terms they do not agree on:

Mr. O’Neill presented term “Script” and “Script Processor”
Ms. Hunsaker responded. Mr. O’Neill responded. Ms. Hunsaker responded. Parties continued to discuss.
Mr. O’Neill moved on to the other issue in Scripts. Court asked Ms. Hunsaker to present their position. Ms. Hunsaker presented issue “One Command at a Time” dealing with Scripts.
Mr. O’Neill responded. Ms. Hunsaker responded.
Ms. Hunsaker presented the issue of “Text” dealing with Scripts.
Mr. O’Neill responded. Ms. Hunsaker responded.
Ms. Hunsaker presented term “Utlizing Metadata from a Metadata Database.”

Mr. O’Neill presented term “Rule.”
Mr. Pensabene responded.
Mr. Pensabene presented term “Rule Set Processor.”
Mr. O’Neill responded. Mr. Pensabene responded. Mr. O’Neill further responded.
Mr. O’Neill presented term “Data Transformation Rule Sets.”

Mr. Pensabene responded.
Mr. O’Neill presented term “Systems Interface.”
Mr. Pensabene responded. Mr. O’Neill responded.
Court inquired about trial setting. Court inquired about a preliminary ruling on the Markman. Parties would like a preliminary ruling.
Court and parties discussed mediation. Mr. Macon responded.
Ms. Hunsaker inquired about submitted supplemental filings. Court does not need.
Court and parties continued to discuss mediation.
3:10 pm There being nothing further, Court adjourned.

So parties want a preliminary ruling on the Markman that indicates whether this patent will be about the strict definition of an ETL tool or will cover the wider field of data integration software. There is also debate on whether the patent covers a scripting tool (any software where you write code) or a GUI development tool like DataStage and Informatica PowerCenter where you build the job as a diagram and it runs as compiled code.

The definitions of Scripts, Rule Set Processor and Script Processor could determine the level of infringement from the most popular tools in the data integration market. There are several billion dollars of revenue tied up in data integration tools that have a GUI Designer and not a script processor.

Steelhard on Markman (from the comment section of my Barack Obama on Patent Reform post:

A few comments on the Markman Hearings, since the next week will be very important. The Feb 4th 1:30 pm mtg (for 90 minutes) will serve as the pre-Markman meeting between lawyers and judge to cover "ground rules" and enter the claims construction charts. Markman Hearings will then start on Thurs, Feb 5th, and are scheduled for 3 days, so there will be a carry-over into Monday of the following week.
At MH, usually only about 10% of the overall claims are put forth by the plaintiff's attorneys in their claims construction, so it needs to be those claims that overlap all defendants (as much as possible), have a strong value and are also those you feel you can win on. The defendants' attorneys defend against the claims chosen by the plaintiffs. That is why there is great jockeying to have the perceived strong claims thrown out or weakened by the defendants with various motions prior to MH so they do not have to go up against those claims at MH (as evidenced on PACER over the past couple of months).
The goal is simple- win with your strongest claims that also reflect significant value on the infringement at MH and you have substantial wind in your sails for either ongoing settlement talks or trial. If the plaintiffs cannot win much at MH with their strongest claims, then it is extrapolated that the other approx 90% of the claims would fair no better and it is considered a significant loss or weakness. Just the opposite if the judge sides with the plaintiff's claims construction.
The judge usually renders his claims construction ruling in approx 10-14 days, so it is highly likely that it will not be out until on or around Friday, Feb 20th, at the earliest. I mention this so that many of you do not have to waste too much energy wondering about an outcome too prematurely because this will take a little time.