Packet Intelligence LLCDownload PDFPatent Trials and Appeals BoardJan 12, 2021IPR2020-00485 (P.T.A.B. Jan. 12, 2021) Copy Citation Trials@uspto.gov Paper 22 571-272-7822 Date: January 12, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD JUNIPER NETWORKS, INC. and PALO ALTO NETWORKS, INC., Petitioner, v. PACKET INTELLIGENCE LLC, Patent Owner. IPR2020-00335 IPR2020-00485 Patent 6,651,099 B1 Before STACEY G. WHITE, CHARLES J. BOUDREAU, and JOHN D. HAMANN, Administrative Patent Judges. HAMANN, Administrative Patent Judge. DECISION Denying Petitioner’s Requests1 for Rehearing 35 C.F.R. § 42.71(d) 1 We exercise our discretion to issue a single Decision to be entered in each case using a joint caption in light of Petitioner’s Requests for Rehearing in both cases presenting the same substantive arguments. For efficiency, we cite to the papers filed in IPR2020-00335 unless otherwise indicated. The parties are not permitted to use this caption. IPR2020-00335 IPR2020-00485 Patent 6,651,099 B1 2 INTRODUCTION In IPR2020-00335, Juniper Networks, Inc. and Palo Alto Networks, Inc. (collectively “Petitioner”) filed a Request for Rehearing (Paper 21, “Req. Reh’g”) of our Decision denying institution of inter partes review (Paper 19, “Dec. on Inst.”) of claims 1 and 2 of U.S. Patent No. 6,651,099 B2 (“the ’099 patent”). In IPR2020-00485, Petitioner filed a Request for Rehearing (Paper 21) of our Decision denying institution of inter partes review (Paper 19) of claims 4 and 5 of the ’099 patent. For the following reasons, Petitioner’s Requests for Rehearing are denied. STANDARD OF REVIEW A party requesting rehearing bears the burden of showing that a decision should be modified. 37 C.F.R. § 42.71(d). The party must identify all matters it believes the Board misapprehended or overlooked, and the place where each matter was addressed previously in a motion, an opposition, or a reply. Id. When rehearing a decision on petition, we review the decision for an abuse of discretion. 37 C.F.R. § 42.71(c). An abuse of discretion occurs when a “decision was based on an erroneous conclusion of law or clearly erroneous factual findings, or . . . a clear error of judgment.” PPG Indus. Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565, 1567 (Fed. Cir. 1988) (citations omitted). ANALYSIS Petitioner requests that we rehear our Decisions on Institution and institute inter partes review as to the ’099 patent. Req. Reh’g. 15. In particular, Petitioner argues that we “improperly interpreted the plain and ordinary meaning of ‘state transition patterns,’ and overlooked or IPR2020-00335 IPR2020-00485 Patent 6,651,099 B1 3 misapprehended Petitioner’s testimonial evidence showing that Riddle and Yu teach that limitation.” Id. State Transition Patterns Petitioner argues that we improperly interpreted the plain and ordinary meaning of state transition patterns. Id. at 3–8. These arguments relate to claim 1’s limitation of “a set of predefined state transition patterns . . . such that traversing a particular transition pattern as a result of a particular conversational flow-sequence of packets indicates that the particular conversational flow-sequence is associated with the operation of a particular application program.” Ex. 1001, 35:31–39; Req. Reh’g 3–8. In particular, Petitioner argues that “the Board’s [D]ecision[s] interpret[] the claim term ‘state transition pattern(s)’ to require ‘state transitions across multiple packets,’ . . . [which] runs contrary to the claim language.” Req. Reh’g 1 (citing Dec. on Inst. 18–20). According to Petitioner, “[t]he claim is agnostic on whether traversal is triggered by a single packet, or by more than one packet, in a flow-sequence of packets.” Id. We disagree. Claim 1 explicitly recites that “traversing a particular transition pattern as a result of a particular conversational flow-sequence of packets indicates” the associated application program. Ex. 1001, 35:31–39 (emphases added). In other words, the claim requires “classifying a flow based on . . . a state transition pattern of a sequence of packets (i.e., across multiple packets) in the flow.” Dec. on Inst. 19. In the context of the limitation, the “particular transition pattern” is one of the “set of predefined state transition patterns.” Ex. 1001, 35:31–39. Hence, state transition patterns include state transition patterns that involve multiple packets, contrary to Petitioner’s arguments. Put differently, and as we stated in our IPR2020-00335 IPR2020-00485 Patent 6,651,099 B1 4 Decisions on Institution, “the plain and ordinary meaning of ‘state transition patterns,’ in the context of a sequence of packets, comprises state transitions across packets in a flow.” Dec. on Inst. 18 (citing Ex. 1001, 35:31–39) (emphasis added). Petitioner’s Requests for Rehearing fail to address directly that the limitation recites “of packets” (i.e., packet in the plural form or multiple packets) for the particular conversational flow-sequence that results in the traversal of the particular transition pattern. See generally Req. Reh’g. Moreover, this limitation’s plain and ordinary “meaning is consistent with the Specification’s disclosure that a current packet is ‘analyzed in the context of the sequence of previously encountered packets (the state).’” Dec. on Inst. 18 (quoting Ex. 1001, 11:16–20). The Specification is replete with support for this plain and ordinary meaning requiring patterns involving multiple packets. For example, the Specification discloses: In a complex analysis, state transitions are traversed as more and more packets are examined. Future packets that are part of the same conversational flow have their state analysis continued from a previously achieved state. When enough packets related to an application of interest have been processed, a final recognition state is ultimately reached, i.e., a set of states has been traversed by state analysis to completely characterize the conversational flow. Ex. 1001, 16:10–20; Dec. on Inst. 19 (quoting same); see also Ex. 1001, 9:14–23 (disclosing that an application program “will produce an exchange of a sequence of packets over” a network that is characteristic of the program, but “[s]uch characteristics may not be completely revealing at the individual packet level[, and] . . . may require the analyzing of many IPR2020-00335 IPR2020-00485 Patent 6,651,099 B1 5 packets . . . to have enough information needed to recognize particular application programs”); Dec. on Inst. 19 (quoting same). We are not persuaded by Petitioner’s argument that we “conflate[d] the terms ‘state transition pattern(s)’ and ‘sequence of packets.’” Req. Reh’g 4. To that end, Petitioner argues that we improperly “replace[d] the words ‘as a result of’ with ‘for’ or ‘of’ . . . [, which] altered this limitation’s meaning to require a sequence of transitions, which is contrary to the claim.” Id. at 4 (citing Dec. on Inst. 18–19). We disagree. Rather, our phrasing regarding this limitation remains consistent with requiring that state transition patterns, including at least the traversed particular transition pattern, are patterns which involve multiple packets — having one or more transitions is separate from this requirement. Ex. 1001, 35:31–39; see also id. at 34:27–32 (discussing single state transitions versus a sequence of state transitions, rather than the number of packets). Again, the limitation recites “traversing a particular transition pattern as a result of a particular conversational flow-sequence of packets.” Id. at 35:31–39 (emphases added). We also are not persuaded by Petitioner’s argument that our view of the plain and ordinary meaning of the claimed state transition patterns is incorrect because it excludes embodiments (e.g., “a single packet can provide the state transition information indicating association of a flow- sequence with operation of a particular application program”) disclosed in the Specification. Req. Reh’g 5–6 (citing SynQor, Inc. v. Artesyn Techs., Inc., 709 F.3d 1365, 1378–79 (Fed. Cir. 2013)). The Specification clearly contrasts embodiments that require patterns covering multiple packets with patterns that allow for a single packet. See, e.g., Ex. 1001, 9:14–23, 10:48– IPR2020-00335 IPR2020-00485 Patent 6,651,099 B1 6 63, 16:10–20. As we discuss above, claim 1 and its limitation requiring “a particular conversational flow-sequence of packets” clearly requires multiple packets, and thus, is directed to the former embodiment. Id. at 35:31–39. Contrary to Petitioner’s argument, it is not necessary for claim 1 to cover all disclosed embodiments, particularly when the clear language of the limitation shows that it does not. See Baran v. Med. Device Techs., 616 F.3d 1309, 1316 (Fed. Cir. 2010) (“It is not necessary that each claim read on every embodiment.”); Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1383 (Fed. Cir. 2008) (“It is often the case that different claims are directed to and cover different disclosed embodiments.”). We also are not persuaded by Petitioner’s argument that Patent Owner agrees with Petitioner’s understanding of state transition patterns because “Patent Owner has stated that . . . [certain] quotes from the ’903 Provisional [that discuss both embodiments] provide sufficient written description support for” this limitation. Req. Reh’g 6–7 (citing Ex. 1112,2 3–4); see also id. at 6 (quoting Ex. 1001, 10:51–63, 34:27–29; Ex. 1016, 16:19–25, 36:10–12). First, Petitioner bases its argument on selecting a few cites from a lengthy string cite, which we find is too speculative to establish that Patent Owner’s understanding of state transition patterns differs from our view. Req. Reh’g 6–7; Ex. 1112, 3–4. Second, Petitioner fails to address how litigation positions taken by Patent Owner as support for claim limitations can serve to contradict the plain language of the limitation (e.g., “of packets”). 2 We do not address whether Petitioner has shown good cause to admit Exhibit 1112, as we find unavailing Petitioner’s arguments based on this exhibit. IPR2020-00335 IPR2020-00485 Patent 6,651,099 B1 7 Lastly, we find inapposite Petitioner’s argument concerning Sun’s RPC (Remote Procedure Call) Bind Lookup application. Req. Reh’g 7–8. The gist of Petitioner’s argument appears to be that this application “may be identified by examining a single packet used to transmit a request.” Id. at 7. For example, Petitioner argues that “transition in state is recognized from information in the packet (including identification of a particular port) and is sufficient to identify the associated application.” Id. (citing Ex. 1001, 33:6– 55). At most, this discussion is an example of an embodiment that allows for application identification based on a single packet. Ex. 1001, 33:6–55. As we discuss above, however, claim 1 is directed to multiple packet embodiments for application identification. Additionally, we note that Petitioner’s arguments based on Sun’s RPC (Remote Procedure Call) Bind Lookup application are new, and do not appear in the Petition. See generally Pet. In light of the above, we are not persuaded that there was an erroneous conclusion of law concerning our view of the plain and ordinary meaning of state transition patterns. Alleged Obviousness over Riddle and Ferdinand Petitioner argues that we overlooked or misapprehended that “Dr. Weissman’s declaration explains that a POSITA would understand Riddle classifies a flow based on traversal of a state transition pattern across packets in the flow, rather than based solely on a single flow packet.” Req. Reh’g 9. We disagree. Our Decisions on Institution considered the arguments and testimony as presented and developed in the Petitions, and properly determined that Petitioner failed to show that Riddle discloses “a set of predefined state transition patterns . . . such that traversing a particular IPR2020-00335 IPR2020-00485 Patent 6,651,099 B1 8 transition pattern as a result of a particular conversational flow-sequence of packets indicates that the particular conversational flow-sequence is associated with the operation of a particular application program.” Dec. on Inst. 18–22. Petitioner’s Requests cite Dr. Weissman’s testimony (largely without identifying where in the Petitions this testimony was cited) to make arguments that it did not make in the Petitions. Req. Reh’g 9–13. First, for example, Petitioner’s Requests repeatedly rely on paragraph 351 of Dr. Weissman’s declaration to argue that “Riddle discloses that traversing a particular state transition pattern for a flow-sequence of packets indicates the flow’s associated application program.” Id. at 9, 12 (citing Ex. 1006 ¶ 351). In the Petitions, however, Petitioner only cites paragraph 351 in describing Riddle’s Figure 2A and arguing that “[a] POSITA would have understood that transitioning from one class to the next in this hierarchy involves predefined patterns and operations.” Pet. 66 (citing Ex. 1006 ¶ 351). Hence, Petitioner’s argument here is untimely. A request for rehearing is not a supplemental petition. Nor is it an opportunity to present new arguments or evidence that could have been presented and developed in the first instance in the Petitions. We could not have misapprehended or overlooked arguments or evidence that were not presented or developed in the Petitions. Notably, Petitioner’s Requests fail to identify any specific factual error in our factual findings concerning Riddle’s Figure 2A. Req. Reh’g 9– 10, 12 (citing Ex. 1006 ¶ 351). Put differently, Petitioner’s Requests ignore the reasoning for our factual findings about Figure 2A’s teachings, including that Figure 2A’s tree IPR2020-00335 IPR2020-00485 Patent 6,651,099 B1 9 classifies a flow based on an individual packet’s information and “multiple orthogonal classification attributes” (e.g., department and application). Ex. 1008, Fig. 2A, 9:16–18, 10:20–39. Put differently, Riddle uses the information contained in an individual packet in the flow to test for multiple traffic classes (e.g., which department and application the packet belongs, if any). Id. The application (e.g., FTP) is indicated by information within the individual packet, and an orthogonal classification attribute (i.e., application), rather than a pattern. Id. In addition, although Riddle teaches classifying multiple packets in a flow, this classification occurs serially on an individual packet by packet basis, rather than relying on state transitions across multiple packets. See generally Ex. 1008. Dec. on Inst. 19–20. Second, Petitioner argues that by finding that Riddle is limited to “‘classifying a flow based on an individual packet in a flow,’ the Board overlooked or misapprehended Dr. Weissman’s uncontested testimony,” including paragraphs 360–361 and 366–369. Req. Reh’g 10 (quoting Dec. on Inst. 19); see also id. (citing Pet. 71–72) (arguing that these paragraphs were cited in the Petition). In the Petitions, however, Petitioner cites these paragraphs only in regard to state operations. See Pet. 71–72. Hence, Petitioner’s arguments in its Rehearing Requests as they relate to state transition patterns and these paragraphs are untimely. Again, a request for rehearing is not a supplemental petition. Third, Petitioner’s Requests argue, in the context of service aggregates, that Riddle’s claim 5 supports its argument that Riddle teaches this limitation. Req. Reh’g 11 (citing Ex. 1008, 16:40–48; Pet. 62–63). In the Petitions, however, Petitioner cites Riddle’s claim 5 for a different limitation in arguing that Riddle’s Figure 4B “looks up whether a flow matches a traffic class in relation to classifying a service aggregate based on IPR2020-00335 IPR2020-00485 Patent 6,651,099 B1 10 a plurality of indicators.” Pet. 62–63 (citing Ex. Ex. 1008, 16:40–48). Hence, this argument is untimely. Moreover, like above, Petitioner’s Requests fail to identify any specific error in our factual findings concerning Riddle’s service aggregates. See Dec. on Inst. 20 (making factual findings about Riddle’s service aggregates). Not finding Dr. Weissman’s testimony (e.g., paragraphs 356–357) persuasive in light of Riddle’s teachings is not evidence of clear error. Id. Fourth, Petitioner argues that “Riddle makes clear [that] Fig[ure] 4A’s flowchart may operate on state transitions across multiple packets” because “Riddle specifies this flowchart ‘may execute on multiple instances of list 308’” and “teaches ‘a flow specification is parsed from the flow being classified.’” Req. Reh’g 11 (citing Ex. 1008, 12:42–63) & n.4 (quoting Ex. 1008, 12:37–39). These arguments are new, and hence are untimely. Compare Req. Reh’g 11–12, with Pet. 68–69. Moreover, Petitioner’s argument that “Dr. Weissman also opines that Riddle’s Fig 4A flowchart teaches examining state transitions across multiple packets to indicate a particular program” is conclusory and untethered to our specific factual findings so as to sufficiently allege error. See Req. Reh’g 12 (citing Ex. 1006 ¶¶ 120–121, 132, 299, 330, 332, 354–355, 361, 367–368). Moreover, Petitioner’s argument cites numerous paragraphs from Dr. Weissman’s declaration that were not cited in the Petitions’ discussion of Riddle’s Figure 4A for this limitation. Id.; Pet. 68–69. Again, a request for rehearing is not a supplemental petition. Lastly, Petitioner argues that Riddle’s FTP example teaches “progression from establishing a TCP connection to establishing FTP command and data channels to permit exchange of FTP data is a pattern of IPR2020-00335 IPR2020-00485 Patent 6,651,099 B1 11 state transitions that occurs across multiple packets, is predefined by the classification tree, and leads to the recognition of an FTP program associated with the flow.” Req. Reh’g 12–13 (citing Pet. 66). Petitioner, however, fails to identify any specific factual error in our findings regarding Riddle’s teachings regarding FTP. Id.; Dec. on Inst. 19–20 (finding that Riddle’s teachings regarding the FTP application fail to teach this limitation). These findings explain why Riddle’s FTP application discussion fails to teach the disputed limitation. Dec. on Inst. 19–20. Simply put, the fact that we did not find Dr. Weissman’s testimony, as developed in the Petitions, persuasive does not mean we overlooked or misapprehended his testimony, or that our Decisions were based on clearly erroneous factual findings. We are not persuaded that our Decisions were based on clearly erroneous factual findings or a clear error of judgment. Alleged Obviousness over Riddle, Ferdinand, and Yu In our Decisions on Institution, we found that “Petitioner d[id] not provide any detailed mapping of claim 1’s limitations for th[e] asserted ground[s] [based on Riddle, Ferdinand, and Yu], leaving any such mapping unclear, or worse, speculative,” and that “[f]or example, Petitioner d[id] not explain what, if anything, in Yu maps to the recited ‘set of predefined state transition patterns’ — Petitioner d[id] not even use the phrase in its showing for this ground.” Dec. on Inst. 23 (citing Pet. 80–87). Furthermore, “[w]e decline[d] to speculate as how Yu’s teachings, if at all, relate to the[] limitations of claim 1[, and] . . . we f[ound] the Petition[s] d[id] not ‘set forth . . . where each element of the claim is found in the prior art . . . relied upon,’” as required by 37 C.F.R. § 42.104(b)(4). Id. at 23–24. IPR2020-00335 IPR2020-00485 Patent 6,651,099 B1 12 Petitioner argues in its Requests that we “overlook[ed] Petitioner’s analysis of Yu and misapprehend[ed] Dr. Weissman’s testimony regarding Yu.” Req. Reh’g 13–15. More specifically, Petitioner argues that “[b]oth Petitioner and Dr. Weissman explain that a POSITA would have understood Yu teaches using a pattern across multiple packets as a flow classification criterion, as shown in” cited passages from Yu and Dr. Weissman’s declaration in the Petitions. Id. at 13–14 (citations omitted). Petitioner’s arguments now try to map, at least for some limitations, the passages from Yu and Dr. Weissman that Petitioner cited in the Petitions to limitations of claim 1. Id. This attempted mapping comes too late. A request for rehearing is not a supplemental petition. The Petitions did not set forth where each element of the claim is found in the prior art relied upon, and Petitioner’s Requests cannot cure this failing. See Pet. 80–84; 37 C.F.R. § 42.104(b)(4). We are not persuaded that this was an abuse of discretion. CONCLUSION On this record, Petitioner neither persuades us that we overlooked or misapprehended any matter, nor sufficiently shows that denying institution of an inter partes review of claims 1 and 2 of the ’099 patent in IPR2020- 00335 and denying institution of an inter partes review of claims 4 and 5 of the ’099 patent in IPR2020-00485 was an abuse of discretion. ORDER In consideration of the foregoing, it is hereby: ORDERED that the Requests for Rehearing are denied. IPR2020-00335 IPR2020-00485 Patent 6,651,099 B1 13 For PETITIONER: Joseph Edell Adam Allgood FISCH SIGLER LLP joe.edell.ipr@fischllp.com adam.allgood@fischllp.com Scott McKeown James Batchelder Mark Rowland ROPES & GRAY LLP Scott.mckeown@ropesgray.com James.batchelder@ropesgray.com Mark.rowland@ropesgray.com For PATENT OWNER: Robert Bullwinkel Michael Heim HEIM PAYNE & CHORUSH, LLP abullwinkel@hpcllp.com mheim@hpcllp.com Copy with citationCopy as parenthetical citation