Veeam Software Corporationv.Symantec Corporation

Patent Trial and Appeal Board

Apr 23, 2015

12027574 (P.T.A.B. Apr. 23, 2015)

Trials@uspto.gov Paper 32
Tel: 571–272–7822 Entered: April 23, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
VEEAM SOFTWARE CORPORATION,
Petitioner,
v.
SYMANTEC CORPORATION,
Patent Owner.
_______________

Case IPR2014-00089
Patent 7,831,861
_______________

Before WILLIAM V. SAINDON, THOMAS L. GIANNETTI, and
TRENTON A. WARD, Administrative Patent Judges.

SAINDON, Administrative Patent Judge.

DECISION
Final Written Decision
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
Dismissing Motion to Exclude
37 C.F.R. § 42.64

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I. INTRODUCTION
We have jurisdiction under 35 U.S.C. § 6(c). This Final Written
Decision is entered pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
With respect to the grounds asserted in this trial, we have considered
the papers submitted by the parties and the evidence cited therein. For the
reasons discussed below, we determine that all of the challenged claims of
U.S. Patent No. 7,831,861 B1 (Ex. 1001, “the ’861 patent”) are
unpatentable.
We dismiss Patent Owner’s Motion to Exclude the McInnis reference,
because we do not reach the ground which relies upon McInnis.
A. Procedural History
Veeam Software Corporation (“Petitioner”) filed a corrected Petition
requesting an inter partes review of claims 1–3, 6, 7, 11–15, 18, and 19 of
the ’861 patent. Paper 4 (“Pet.”). Petitioner included a Declaration of
Dr. Prashant Shenoy. Ex. 1002. Symantec Corporation (“Patent Owner”)
filed a Preliminary Response to the Petition. Paper 8 (“Prelim. Resp.”).
In our Decision Instituting Inter Partes Review, we granted review as
to all of the challenged claims. Paper 9 (“Dec. to Inst.”). Patent Owner filed
a Response to the Petition (Paper 18, “PO Resp.”), which included a
Declaration of Dr. Jon B. Weissman (Ex. 2003). Petitioner filed a Reply to
the Response (Paper 21, “Pet. Reply”), which included a Reply Declaration
of Dr. Shenoy (Ex. 1014).
On December 18, 2014, all parties were present for an oral hearing.
Paper 31 (“Tr.”).
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Patent Owner filed a Motion to Exclude McInnis. Paper 24 (“Mot.
Excl.”). Petitioner filed an Opposition (Paper 28, “Opp. Mot. Excl.”) and
Patent Owner filed a Reply (Paper 30, “Reply Mot. Excl.”).
B. Related Matters
The ’861 patent is involved in a district court case styled Symantec
Corp. v. Veeam Software Corp., No. 3:14-cv-00700-SI (consolidated with
3:12-cv-01035 and -05443) (N.D. Cal.). Pet. 1; Paper 7, 1 (Patent Owner
Mandatory Notices).
In addition to this Petition, Petitioner previously filed petitions
challenging the patentability of certain claims of Patent Owner’s U.S. Patent
Nos. 6,931,558 B1 (IPR2013-00141, IPR2013-00142), 7,254,682 B1
(IPR2013-00144, IPR2013-00145), 7,191,299 B1 (IPR2013-00143,
IPR2013-00151). In three of those proceedings, we denied institution on
August 7, 2013. See IPR2013-00144, Paper 11; IPR2013-00145, Paper 12;
IPR2013-00151, Paper 7. We entered final decisions in the remaining
proceedings on July 29, 2014. See IPR2013-00141, Paper 50; IPR2013-
00142, Paper 51; IPR2013-00143, Paper 48. Additionally, on October 22,
2013, Petitioner filed petitions challenging the patentability of certain claims
of Patent Owner’s U.S. Patent Nos. 7,480,822 (IPR2014-00088), 7,024,527
(IPR2014-00090), and 8,117,168 (IPR2014-00091). On March 20, 2015, we
entered a final decision in IPR2015-00088 (Paper 45) and shall enter final
decisions in the other cases concurrently with this decision.
C. The ’861 Patent
The ’861 patent is titled “Techniques for Efficient Restoration of
Granular Application Data” and generally relates to a process of backing up
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and then restoring data. After an initial backup, the backup data is
virtualized into a staging area. Ex. 1001, 5:9 (backup), 5:16–18 (export of
backup data), 5:39–40 (virtualization of backup data). Then, a recovery
process begins that writes updates and transactions to recovery files. Id. at
5:55–6:3. The backup data and recovery files are then virtualized,1 and an
application can use that virtualization to recover data. Id. at 6:49–56.
D. Illustrative Claims
Of the claims challenged, claims 1, 12, and 13 are independent.
Claim 1 is illustrative and reproduced below:
1. A method for restoring one or more portions of
application data comprising:
performing a full backup;
exporting one or more backup files;
creating a specified staging area;
virtualizing the one or more backup files of the
application data into the specified staging area;
running a recovery process for the one or more
backup files wherein the recovery process
includes:
enabling recovery by writing recovery changes
to one or more recovery files, wherein
writing recovery changes to one or more
recovery files allows the one or more
backup files to remain unmodified; and
saving the one or more backup files and the one
or more recovery files;
virtualizing the one or more backup files and the
one or more recovery files

1 Virtualization involves creation of a virtual (as opposed to actual) version
of data; typically to use that data but allow it to remain unmodified.
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instantiating an instance of an application utilizing
the virtualized one or more backup files and the
virtualized one or more recovery files; and
recovering one or more portions of the application
data.

E. Asserted Grounds and Prior Art
We instituted an inter partes review on the following grounds:
Reference(s) Basis Claims Challenged
McInnis2 and Lal3 § 103(a) 1–3, 6, 7, 11–15, 18, and 19
Liu4 § 102(b) 1–3, 6, 7, 11–15, 18, and 19
Becker5 and Valiyaparambil6 § 103(a) 1–3, 6, 7, 11–15, 18, and 19

II. ANALYSIS
A. Claim Construction
We interpret the claims of an unexpired patent using the broadest
reasonable interpretation in light of the specification of the patent. 37 C.F.R.
§ 42.100(b); In re Cuozzo Speed Techs., LLC, 778 F.3d 1271, 1281–82 (Fed.
Cir. 2015). Under the broadest reasonable interpretation standard, claim
terms are given their ordinary and customary meaning, as would be

2 Dale McInnis et al., DB2 9 HADR: Build a Standby Database Using
SnapMirror ® and Create a Read/Write Copy of the Standby Using
FlexClone™ (Jan. 22, 2007) (Ex. 1004) (“McInnis”).
3 Jawahar Lal et al., DB2: Cloning a Database using NetApp FlexClone™
Technology (Apr. 30, 2006) (Ex. 1005) (“Lal”).
4 WO 2007/002397 A2, pub. Jan. 4, 2007 (Ex. 1006) (“Liu”).
5 US Pub 2004/0139128 A1, pub. July 15, 2004 (Ex. 1007) (“Becker”).
6 US Pub 2007/0276885 A1, pub. Nov. 29, 2007 (Ex. 1008)
(“Valiyaparambil”).
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understood by one of ordinary skill in the art in the context of the entire
disclosure. In re Translogic Tech. Inc., 504 F.3d 1249, 1257 (Fed. Cir.
2007). Any special definition for a claim term must be set forth with
reasonable clarity, deliberateness, and precision. In re Paulsen, 30 F.3d
1475, 1480 (Fed. Cir. 1994).
In our Decision to Institute, we construed several terms or phrases:
“performing a full backup,” “export,” “backup files,” “recovery files,” and
“recovery changes.” Dec. to Inst. 5–7. The parties contest whether we
should modify our construction of “export.” PO Resp. 13–18; Pet. Reply 2–
4. Patent Owner also proposes modifications to our constructions of
“recovery file” and “backup file” (PO Resp. 18–21) and proposes a
construction of “staging area” (id. at 55). We turn to these four contested
terms.
1. “export”
In our Decision to Institute, we construed this term, found in each
independent claim, to mean, “moving, copying, or otherwise causing data
from a source location to appear as local on a destination location.” Dec. to
Inst. 6. Petitioner proposed the construction and Patent Owner did not
oppose it, although Patent Owner argued that the term “export[ing] one or
more backup files” should be construed as additionally requiring the
exported backup files to be of application data selected from the full backup.
Id. We declined to import those additional limitations into the claim, and
adopted Petitioner’s otherwise unchallenged construction. Id.
Patent Owner now proposes that “export” should be construed as
“mak[ing] remote data accessible to clients as though it were local.” PO
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Resp. 14. In effect, Patent Owner seeks to remove the “moving” and
“copying” aspects of the proposed construction (i.e., to preclude an “export”
from being a “copy” or a “move”), and to preclude actual locality in favor of
an appearance of locality (consistent with having not copied or moved the
data). In proposing to remove the “moving” and “copying” aspects, Patent
Owner argues that the ’861 patent uses the term “copy” in operations other
than “exporting,” such that Petitioner’s construction “conflate[s] ‘exporting’
with ‘copying’ or ‘moving.’” Id. at 14–15. In proposing to limit
“exporting” to only an appearance of locality and to preclude actual locality,
Patent Owner argues that this construction gives appropriate weight to the
later-occurring “saving” limitation. Id. at 15–18. Patent Owner argues that
it is the recovery process, and specifically the “saving” step, that actually
moves or copies the data. Id. at 16–17.
Petitioner argues that the extrinsic evidence supports its construction
and that there is no clear disavowal in the ’861 patent to justify Patent
Owner’s narrower construction. Pet. Reply 2, 3. Petitioner argues that
Patent Owner’s construction “conflicts with dependent claim 7, which treats
‘exporting’ and ‘exposing . . . as a shared resource’ differently.” Pet. Reply
2–3. In response to Patent Owner’s arguments, Petitioner points out that its
construction of “export” recognizes explicitly that “copying” is a different
operation and that its construction merely acknowledges that exporting may
take the form of copying. Id. at 3–4. Further, Petitioner points out that “data
that is local also ‘appear[s] as local,’” and argues that the ’861 patent
provides examples where the act of exporting copies or moves backup files.
Id. (citing Ex. 1001, 5:39–47; Ex. 1014 ¶¶ 4, 6). Petitioner argues that its
construction does not render meaningless the “saving” step and that Patent
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Owner contended in the underlying District Court case that “‘copying of
data’ meets the ‘exporting’ step.” Id. at 4 (citing Symantec’s Infringement
Contentions, Ex. 1012, 57–59).
Reviewing the arguments and evidence before us, we determine that
Patent Owner’s newly-proposed construction is unreasonably narrow and
that Petitioner’s proposed construction is more consistent with the ’861
patent and the extrinsic evidence, for the reasons that follow. Initially, we
note that neither party proposes that the term “export” is defined in the ’861
patent, nor do we see any such definition. We now turn to several passages
in the ’861 patent that shed light on the meaning of “export.”
The ’861 patent describes backup component 115 as a device that
“redirect[s],” “split[s],” or “replicate[s]” data in order to enable “exporting
of backup data.” Ex. 1001, 3:38–43. Thus, the ’861 patent explains that a
device that transfers data enables “exporting,” implying that exporting may
be a transfer of data.
The ’861 patent further describes how backup data 145 “contain[s]
exported data” and “appear[s] as local disks to backup server 150.” Id. at
4:9–15. We understand this passage to mean that the backup data is stored
at the backup server’s location, not the application server. This passage
further supports the passage discussed in the previous paragraph, which led
us to conclude that “exporting” may be a transfer of data performed by the
backup component. In addition, we understand this passage to explain the
specification’s use of the phrase “appear as local,” which describes a
condition of actual locality because the backup data is connected to the
backup server. Id. at Figs. 1, 2.
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The ’861 patent also describes how application data “may be exported
to storage associated with a separate device for recovery, such as storage
165.” Id. at 4:15–18. This passage also indicates that “exporting” may
involve a transfer of data, because application data is originally at
application server 110 and must be transferred over network 135 in order to
be stored at storage 165 in recovery server 160. See id. at Figs. 1, 2.
In the method depicted in Figure 3 of the ’861 patent, the backup step
315 is performed by a CDP (Continuous Data Protection) service, which is a
reference to the redirector/splitter/replicator in column 3 that we discussed
above. Id. at 5:12–15; see also id. at 4:55–65 (describing CDP), 3:36–45
(describing the backup component as providing services that a CDP would
perform). The Figure 3 method then, in step 320, describes how “the backup
data may be exported to a backup server enabling the data to appear as
local.” Id. at 5:16–18. We conclude that this disclosure, like the passages in
column 4 we discussed above, explains that “appear as local” means actual
locality and the data actually is at the backup server. Thus, we determine
that this passage of the specification uses the term “export” in reference to
the actual transfer of data from the application server to the backup server,
using the CDP in the backup step 315.
In view of the above, we determine that the ’861 patent supports
Petitioner’s construction over Patent Owner’s more narrow construction.
Specifically, we determine that the ’861 patent describes “exporting” in a
manner consistent with an export being a transfer of data (e.g., copying or
moving).
In addition to this intrinsic evidence, Petitioner provides extrinsic
evidence in support of their construction. Particularly, Petitioner cites to a
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technical dictionary that defines “export” as: “vb. To move information
from one system or program to another”; and “n. In NFS, a file or folder
made available to other network computers . . . .” Ex. 1009, 202. Petitioner
offers the first definition as evidence that its construction is consistent with
the broadest reasonable interpretation as would be understood by a person of
ordinary skill in the art. We agree—the ’861 patent uses “export” as a verb
and in describing movement of information from one system to another.
We have also considered the testimony of Drs. Shenoy and Weissman.
Dr. Shenoy’s testimony provides support for “export” being a transfer of
data. See Ex. 1002 ¶ 19; Ex. 1014 ¶¶ 3–6. Dr. Weissman’s testimony
discusses at length how Patent Owner’s construction “has support in the
specification.” Ex. 2003 ¶¶ 61–76. Nevertheless, Dr. Weissman’s
testimony does not persuade us that Petitioner’s construction is not the
broadest reasonable interpretation of “export.” For instance, we are not
persuaded that Petitioner’s construction conflicts with the “saving”
limitation. From our above investigation of the ’861 patent’s treatment of
the term “export,” we determined that the exporting step encompassed a
transfer or movement of data to another location. Thus, under Petitioner’s
construction of “export,” saving can still occur, and the term is not rendered
superfluous.
We adopt a modified version of Petitioner’s proposed construction, to
alleviate any potential confusion. In conclusion, we construe “export” as
“causing data from a source location to appear as local on a destination
location.”
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2. “backup file”
In our Decision to Institute, we construed this term, found in each
independent claim, to mean, “the data resulting from a backup.” Dec. to
Inst. 7. In that Decision, we noted that the ’861 patent did not discuss
exporting backup files, but rather backup data. Id. We also noted that the
’861 patent described backup data as containing the individual items that
were backed up (e.g., application files). Id. As a consequence, we
determined that the ’861 patent described backup data as a container or store
for backed up application files, but not as a stand-alone backed-up version of
a particular application file.
Patent Owner seeks to construe “backup file” to be “a file of
application data stored as part of a backup process.” PO Resp. 19–20.
Patent Owner argues that “files” are a well-understood concept and that they
simply are claiming less than the full scope of the disclosure. PO Resp. 19.
Although Patent Owner does not point to any particular passages in the ’861
patent to support its proposed construction, it argues that its construction is
consistent with the “plain and ordinary meaning” of the term. PO Resp. 18–
19; Ex. 2003 ¶ 58.
Patent Owner’s proposed construction is not consistent with the
broadest reasonable interpretation of “backup file” in light of the
specification because (1) the ’861 patent describes a backup, recovery, and
restoration system that requires a data store, and (2) the construction Patent
Owner advocates would require a different type of system. Our reasoning
follows.
First, the ’861 patent describes the backup, recovery, and restoration
process as utilizing a container or store of backed up information (which
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may, in turn, contain files); it does not describe the creation of individually
backed up files. See, e.g., Ex. 1001, 3:29–33, 3:53–61, 4:5–20, 5:10–12,
6:19–21, 6:28–30, 6:45–51. Multiple steps described in the ’861 patent
operate on a data store or require a data store from which to pick out the
individual files stored therein. See Ex. 1001, 6:19–21, 6:31–43, 6:45–54,
Fig. 4 (items 415, 430, 435, 440, 450). Patent Owner cites to the testimony
of Dr. Weissman for support of its position, but Dr. Weissman only points to
a disclosure in the ’861 patent that states that backup data contains a file.
Ex. 2003 ¶ 60. This passage, stating that backup data contains a file, does
not persuade us that backup data is a file. Finally, we note that the term
“backup file” is found in the ’861 patent, but the term appears to be a
typographical error because the paragraph using the term starts out with
“backup data” and then switches to “backup file” as if it were still using the
term “backup data.” Id. at 5:39–47. Even if the use of this term were not a
typographical error, this one instance of the term “backup file” in the
specification does not support Patent Owner’s construction because it does
not speak to whether a “backup file” is a data store or a single application
file. Thus, this use of “backup file” in the ’861 patent specification does not
support Patent Owner’s construction. We determine that the ’861 patent
describes a system that relies on a data store to host the backed up
information (which may include files).
Second, there is a technical distinction between a backup, recovery,
and restoration system utilizing a data store to host files (as described in the
’861 patent) and a system that backs up individual files (as in Patent
Owner’s construction). This is a distinction between different types of
systems, rather than a matter of scope, for two main reasons. As we just
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discussed, systems that use data stores require steps for pulling the data out
of those stores, such as described in the ’861 patent. See Ex. 1001, 6:19–21,
6:31–43, 6:45–54, Fig. 4 (items 415, 430, 435, 440, 450). Also, Patent
Owner’s declarant, Dr. Weissman, explains that a difference between
systems that use data stores and those that use individually backed up files is
that the latter requires file-level access. Ex. 2003 ¶¶ 162–163, 181–182,
192–195. Accordingly, we determine that backup, recovery, and restoration
systems that utilize a data store are different from those that back up
individual files.
Based on our review of the record before us, we determine that the
’861 patent does not describe a restoration system that operates on the
individual file level such as to support Patent Owner’s proposed
construction. The ’861 patent does not describe the file-level access
necessary for the “backup file” of the claim to mean “a file of application
data stored as part of a backup process.” Indeed, the ’861 patent describes
gathering data using a “splitter” that replicates “transactions directed to
storage” rather than individual files. Ex. 1001, 3:38–42. Lastly, contrary to
Patent Owner’s proposed construction, the ’861 patent describes the claimed
steps as being performed on a data store, not on individual application files.
In view of the above, we construe “backup file” to mean “the data
resulting from a backup.”
3. “recovery files”
In our Decision to Institute, we construed this term, found in each
independent claim, to mean “files that store information about changes to
data.” Dec. to Inst. 7. Petitioner does not object to this construction; Patent
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Owner proposes a more narrow construction. See Pet. Reply 12–13; PO
Resp. 20–21. Specifically, Patent Owner proposes that “recovery files” are
“a file of recovery changes stored as part of a recovery process.” PO
Resp. 20.
We decline to adopt Patent Owner’s proposed construction because it
merely presents an alternative construction without persuasive explanation
as to why the prior construction is not the broadest reasonable interpretation
or why its proposed construction is the broadest reasonable interpretation.
Indeed, Patent Owner’s construction is unclear because it raises an issue of
when and whether something is “stored as part of a recovery process.” The
claims define the recovery process as the steps of enabling recovery and
saving.7 Patent Owner’s construction, on the other hand, would re-write the
claim to: “running a recovery process . . . wherein the recovery process
includes enabling recovery by writing recovery changes to one or more [files
of recovery changes stored as part of a recovery process].” Patent Owner
does not persuade us that this provides the broadest reasonable
interpretation. Thus, we decline to adopt Patent Owner’s construction and
we see no need to modify the prior construction.
In view of the above, we construe “recovery files” to be “files that
store information about changes to data.”

7 Claim 1 in part reads: “running a recovery process for the one or more
backup files wherein the recovery process includes: enabling recovery by
writing recovery changes . . .; and saving . . . .”

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4. “staging area”
We did not construe this term in our Decision to Institute. Patent
Owner contends that a “staging area” is “an allocated portion of storage.”
PO Resp. 55. Patent Owner argues that, because a staging area is storage, it
cannot be a physical system (e.g., a server). Id. Petitioner replies that Patent
Owner’s proposed construction is unduly narrow, pointing to several
passages in the ’861 patent for support. Pet. Reply 5–6. Patent Owner and
Petitioner each cite to the same portions of the ’861 patent. Compare id.,
with PO Resp. 55 (both citing Ex. 1001, 5:26–54 (“staging area 170, may be
created on a backup server or another server”); id. at 3:21–23 (“[s]torage 165
may contain staging area 170”); id. at 4:21–24 (“[s]torage 140 may host a
staging area”)).
We agree with Patent Owner that the claimed “staging area” must be a
place where data is stored. None of the passages cited by Patent Owner,
however, nor any other evidence of record, persuade us that the staging area
cannot be part of a larger system having storage (e.g., a server). Patent
Owner’s declarant, Dr. Weissman, states that the ’861 patent “clearly
identifies that the staging area is an allocated section on a storage device and
not a database server.” Ex. 2003 ¶ 173. Dr. Weissman provides no
explanation for how the ’861 patent “clearly identifies” that a staging area is
“not a database server.” In contrast, we find that the ’861 patent states that
the staging area may be a part of a server. Ex. 1001, 5:26–28 (the staging
area “may be created on a backup server or another server”) (emphasis
added). In addition, Patent Owner provides no persuasive evidence or
explanation as to why a “staging area” must be on an allocated portion of
storage, and Patent Owner provides no explanation of what “allocated”
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means.8 The ’861 patent does not describe how the staging area is created.
Ex. 2002, 59:15–16. Patent Owner cites to the testimony of Petitioner’s
declarant, Dr. Shenoy, during a deposition for support of its position (PO
Resp. 55), but Dr. Shenoy’s testimony does not support Patent Owner’s
position (Ex. 2002, 59:9–61:14 (Dr. Shenoy testifying that the ’861 patent
does not specify any particular means for creating the staging area, that it
need not be pre-allocated, and that it may reside on a server)). Accordingly,
we are not persuaded by Patent Owner’s argument that a “staging area” must
be allocated.
In view of the record before us, we construe “staging area” as
“storage,” which can be alone or as a part of another device such as a server.
Id. at 59:12.
B. Anticipation in View of Liu
Petitioner asserts that claims 1–3, 6, 7, 11–15, 18, and 19 are
anticipated by Liu. Pet. 26–42. We discuss the relevant disclosure of Liu,
Petitioner’s ground, and then Patent Owner’s arguments.
1. Liu
Liu describes backing up and restoring data. Snapshots containing a
full point-in-time backup are created on a backup server. Ex. 1006, 9,
Fig. 3. In the event of a failure, Liu describes a virtualization of the backup

8 If data are written to storage, they are “allocated” in some sense. Thus, it
appears that either Patent Owner intends a different, unexplained meaning of
the term “allocated,” or the word is superfluous and not useful to the
construction of “staging area.” In either event, we are not persuaded that the
word “allocated” is useful in the construction of “storage.”
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that is used while the primary system is being fixed. Id. at 36–37. As
explained further below, the backup file is not modified, and transactions are
stored in a separate location. Id. A virtualization of the backup and the
transactions serves to provide a fully functional backup of the failed primary
system. Id.; id. at Fig 4.
Figures 4A and 4B depict an exemplary use of the system in Liu, and
are reproduced below:

Figures 4A and 4B above of Liu depict a scenario in which instant
availability and recovery features are shown. At 11:00 a.m., data on storage
volume D: (406) is backed up and then transferred to and saved on
secondary storage 102. Id. at 36; see also id. at 21–22 (discussing in further
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detail the process of backing up and exporting data), Fig. 3. At 12:00 p.m.,
volume D: goes down, prompting, at 12:05 p.m., the secondary storage
system to provide a virtualization of backup data 413 and “live data area”
414. Id. at 36–37. “Live data area” 414 stores data writes, i.e., deltas, such
that backup file 413 is not modified. Id. This allows for normal use of the
data that was on volume D: during the recovery process. Id.
2. Petitioner’s Ground
Petitioner asserts that in Liu, a base backup is performed for all
allocated blocks and exported to secondary storage (having a staging area).
Pet. 31–33. Then, upon primary system failure, the backup is virtualized,
using a LUN (logical unit number) to provide a “just-in-time” restoration.
Id. at 33–34. At that point, a recovery process begins, using the backup. Id.
at 34–35, 38. During recovery, the backup file itself is unmodified, and any
changes resulting from the live use of the virtualized backup are written to a
live data area. Id. at 35–36. The backup file and changes (recovery files)
are saved. Id. at 36. The combination of these two is in turn virtualized in a
LUN, thus allowing an instance of an application to access the data during
the recovery process. Id. at 36–38.
3. Analysis
Patent Owner has five principal arguments regarding Liu. PO Resp.
39–45. Each argument is directed, as a whole, to “[e]ach of the independent
claims.” See, e.g., id. at 39. Each of the independent claims, i.e., claims 1,
12, and 13, are substantially similar for purposes of resolving the issues
before us. Our analysis is directed to claim 1, but is applicable to each of the
independent claims.
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We now address Patent Owner’s arguments in turn.
a. Exporting
Claim 1 recites a step of “exporting one or more backup files.”
Petitioner’s position is that Liu anticipates this feature when it describes a
source node transferring its data to a destination over a network. Pet. 32
(citing Ex. 1006, 13:25–27; Ex. 1002 ¶ 68); Pet. Reply 14–15 (citing
Ex. 1014 ¶¶ 36–37); see also Ex. 1006, Figs. 4A, 4B (at 11:00 am, the
block-level backup then transfers the data over the network to secondary
storage 102).
Patent Owner argues that Liu does not disclose “exporting one or
more backup files.” PO Resp. 39–40. Specifically, Patent Owner argues
that Liu copies data to provide actual locality and that Liu transfers raw data
blocks, not files. Id. Patent Owner’s arguments are unpersuasive in view of
our constructions of “exporting” and “backup files.” As we noted in our
constructions of those terms, a person of ordinary skill in the art would, upon
review of the specification, understand that “exporting” does not preclude a
transfer of data or actual locality, and that “backup files” need not be
individual application files. In addition, the evidence of record convinces us
that the backup file in Liu includes files. Ex. 1006, 22:6–8 (the backup on
the secondary storage “represents all the data (volume/directories/files) on
the primary”). Accordingly, we are not convinced by Patent Owner’s
arguments that Liu does not describe exporting.
b. Recovery Process
Claim 1 recites a step of “running a recovery process,” which is
defined by the claim as the steps of “enabling recovery by writing recovery
changes to one or more recovery files” and “saving the one or more backup
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files and the one or more recovery files.” Petitioner’s position is that Liu
runs a recovery process by saving the backup file in its unmodified state (in
LUN 411) and writing and saving recovery changes (i.e., modifications to
the backup file) to a “live data area” of LUN 411, called LUN file 414.
Pet. 34–36 (citing Ex. 1006, 6:21–22, 29:28–30, 36:33–35, 37:2–4; Ex. 1002
¶¶ 57, 74); see also Ex. 1006, Fig. 4B (at 11:00 am the unmodified backup
file is saved in LUN 411, at 12:05 pm backup file 413 in LUN 411 remains
unmodified while the changes are saved into LUN 414).
Patent Owner argues that Liu does not disclose “running a recovery
process for the one or more backup files.” PO Resp. 40–43. Specifically,
Patent Owner argues that the claim requires two distinct phases and also
“running a recovery process to generate recovery files before saving any
backup data.” Id. at 40–42 (emphases added). This argument is
unpersuasive because it relies on limitations not found in the claim. As we
explain below, the claim does not specify an order to the claimed steps, does
not require two distinct phases, and does not require all recovery files to be
generated before saving any backup data.
The steps in a method claim are required to be performed in a
particular order only when the grammar and logic of the claims or the
specification requires as much. Altiris Inc. v. Symantec Corp., 318 F.3d
1363, 1371 (Fed. Cir. 2003). Neither a backup file nor a recovery file can be
saved before it is created, but neither the claim nor logic would preclude, for
example, the saving of a backup file before a recovery file is created,
because they are separate files. See Ex. 1001, 5:57–60 (noting that writing
to recovery files allows the backup file to be unmodified). Thus, we are not
persuaded that the claims require the saving of the backup files before the
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writing of the recovery files. Patent Owner relies on its declarant, Dr.
Weissman, for support for its position that the claim requires “generat[ing]
[(presumably: writing)] recovery files before saving any backup data” (PO
Resp. 40–41 (citing Ex. 2003 ¶¶ 183–189)), but we have reviewed his
testimony and find it unpersuasive because he discusses the ’861 patent
disclosure and exemplary embodiments without explaining how the claim is
limited to any particular order or embodiment. Likewise, we are not
persuaded that anything in the claims or the specification would exclude
saving some recovery files before other recovery files are written.
Accordingly, we are not persuaded that the claims and specification impose
a particular order of “writing recovery changes to . . . recovery files” and
“saving the . . . backup file and the . . . recovery files” (aside from the fact
that they must exist to be saved).
Likewise, Patent Owner’s argument that the claims require two
distinct phases is unpersuasive. For example, Patent Owner argues that the
flowchart in Figure 3 of the ’861 patent must occur before the flowchart in
Figure 4. PO Resp. 40–41. Even if that were true, however, that situation
would not provide any reason to limit the particular ordering of the steps of
the claims because the limitations Patent Owner argues (enabling recovery;
saving) are only shown in Figure 3.
Patent Owner lastly argues that “Liu . . . defers any potential recovery
steps to the restoration phase.” PO Resp. 43. As we explained above in this
section, however, we are not persuaded that the claims require two distinct
phases or any particular ordering of the steps. Patent Owner similarly argues
that the ’861 patent “does not disclose that the first created staging area may
be used in the second virtualization step.” Id. Patent Owner does not
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explain how the claims prohibit the staging area from being used in the
second virtualization step, however, and as such, this argument is
unpersuasive. In view of the above, we determine that Patent Owner’s
arguments that Liu does not describe a recovery process as claimed are
unpersuasive.
c. Virtualization Steps
Claim 1 requires two virtualization steps. The first is of the backup
files into the staging area and the second is of the backup files and the
recovery files. Petitioner’s position is that the first virtualization is of
unmodified portion 413 of LUN 411 in the staging area (Liu’s secondary
storage server) and the second virtualization is of unmodified portion 413 of
LUN 411 and live data area 414 of LUN 411. Pet. 33–34, 36–37 (citing
Ex. 1006, 21:8–12, 18:20–21, 36:33–35, 37:1–7); see also Ex. 1006,
Figs. 4A, 4B (depicting the first virtualization at 11:00 am and the second as
any of 12:05 pm or later).
Patent Owner argues that Petitioner relies on the same disclosure in
Liu to show both claimed virtualization steps. PO Resp. 42. The first
claimed virtualization step is of the backup files into the staging area. The
second claimed virtualization step is of the backup file and the recovery
files. Petitioner asserts that the first virtualization is of unmodified backup
data into LUN 411. Pet. 33–34. Because this instance is yet unmodified, it
is a virtualization of the backup file and does not include any recovery files.
Petitioner then asserts that live data area 414, which also is virtualized along
with the backup file, is the “recovery file.” Id. at 35, 36–37. Accordingly,
we are persuaded that there are two distinct virtualizations happening in Liu:
one of the backup file alone, and one of the backup file and the recovery file,
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which occurs later, after the recovery file has been populated. Accordingly,
Patent Owner’s argument that Liu does not describe the virtualization steps
as claimed is unpersuasive.
d. Unmodified Backup File
Claim 1 recites that the recovery files “allow[] the one or more backup
files to remain unmodified.” Petitioner’s position is that the backup file in
Liu is “read-only and does not change” and that the changes (i.e., recovery
changes) are written separately to “live data area” 414. Pet. 35–36 (citing
Ex. 1006, 6:21–22, 37:2–4); see also Ex. 1006, Figs. 4A, 4B (item 413 is the
unmodified backup, item 414 is the live data area).
Patent Owner argues that Liu does not disclose “running a
recovery . . . wherein writing recovery changes to one or more recovery files
allows the one or more backup files to remain unmodified.” PO Resp. 43–
45. Patent Owner’s arguments rely on order-of-steps limitations not found
in the claim. See id. As we discussed with respect to the “recovery process”
limitation above, these arguments are unpersuasive. Therefore, Patent
Owner’s argument that Liu does not describe the claimed unmodified
backup file, therefore, is unpersuasive.
e. Recovery File
Claim 1 recites that the recovery process “enabl[es] recovery by
writing recovery changes to one or more recovery files.” Petitioner’s
position is that live data area 414 of LUN 411 holds the recovery changes,
and is, itself, stored in a file. Pet 35–36 (citing Ex. 1006, 6:21–22, 37:2–4);
Pet. Reply 15 (citing Ex. 1006, 18:20–24; Ex. 1014 ¶ 37).
Patent Owner argues that Liu does not disclose “recovery files”
because, according to Patent Owner, Liu’s live data area 414 is not a file.
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PO Resp. 45. As Petitioner points out, however, Liu describes live data area
414 as a “LUN file.” Pet. Reply 15 (emphasis added). Thus, Patent
Owner’s argument is unpersuasive.
4. Conclusion Regarding Liu
Reviewing the record before us, we determine that Petitioner has
shown, by a preponderance of the evidence, that claim 1 of the ’861 patent is
anticipated by Liu. Patent Owner does not argue separately the other
challenged claims. We have reviewed Petitioner’s assertions regarding
claims 2, 3, 6, 7, 11–15, 18, and 19, and the evidence cited therein, and
determine that Petitioner has shown, by a preponderance of the evidence,
that Liu also anticipates those claims. See Pet. 39–42.
C. Unpatentability in View of Becker and Valiyaparambil
Petitioner asserts that claims 1–3, 6, 7, 11–15, 18, and 19 are
unpatentable in view of Becker and Valiyaparambil. Pet. 42–60.
1. Becker
Becker describes a backup and recovery system. Ex. 1007, Abstr.
Figure 3 of Becker, is reproduced below:
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Figure 3 of Becker depicts a backup and recovery system. In general,
replicated image 356 serves as a backup to production image 326. Id. ¶ 75.
Any change to the production image 326 generates a log file, which is used
to update replicated image 356. Id. Thus, production image 326 is
replicated on replicated image 356. Snapped image 374 or cloned image
372 may be created. Id. ¶ 76. Snapped image 374 provides a read-only
point-in-time virtualization of replicated image 356. Id. Cloned image 372
provides a read/writeable point-in-time virtualization of replicated image
356. Id. Because replicated image 356 is updated as production image 326
is updated, creation of snapshot 374 or clone 372 requires use of journal 370.
Id. If data on replicated image 356 used by a clone or snapshot changes then
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journal 370 captures these changes to preserve the backup data at the point-
in-time state for the clone or snapshot. Id. ¶¶ 76–77. In addition, writes to
the clone 372 are stored in journal 370. Id.
Replicated image 356 is updated using logs. Id. ¶ 75. The logs are
stored in the backup manager in AILFCs 362 (after image log file container)
and BILFC 360 (before image log file container), which can be used to,
essentially, fast-forward or rewind replicated image 356 to any desired point
in time, by using cloned image 372 and applying the logs. Id. ¶ 114.
2. Valiyaparambil
Valiyaparambil describes a system for backing up one or more
volumes. Ex. 1008, Abstr. In relevant part to the discussion below, a
baseline copy of one or more volumes is transferred from a production
server to a backup server. Id. ¶¶ 23, 26. The baseline copy comprises “all
the data . . . for the volume, folder, file, or set of files of interest.” Id. ¶ 26.
Valiyaparambil teaches that a consistent (unmodifiable) initial backup is
made and then updates are stored as changes are made. Id. ¶ 21.
3. Petitioner’s Ground
Petitioner asserts that Becker describes performing a full backup of
replicated image 356, which is exported to archive storage device 380.
Pet. 48–49. Petitioner asserts that Becker also describes backup files in
replicated image 356, which are located in a backup storage system (i.e.,
staging area). Id. at 49–50. Petitioner asserts that, to the extent that
replicated image 356 of Becker fails to meet this limitation, Valiyaparambil
teaches creating an initial, baseline copy of all data for the “volume, folder,
file, or set of files of interest.” Id. at 49 (citing Ex. 1008 ¶ 26).
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Petitioner asserts that replicated image 356 is virtualized using
snapshot 374 or clone 372. Pet. 50–51. Using clone 372, backward or
forward increments (recovery changes) can be written to the clone to
recreate production image 326 at a particular time. Id. at 52. In addition,
clone 372 can be used in a read/write mode, in which changes are written to
journal 370 instead of replicated image 356. Id. Petitioner adds that, to the
extent this could be considered a modification of the backup file,
Valiyaparambil describes unmodifiable backup files. Id. at 52–53.
Petitioner asserts that both replicated image 356 (backup file) and journal
370 (recovery files) are saved. Pet. 53–54.
Next, Petitioner asserts that cloned image 372 is virtualized, the clone
including replicated image 356 and journal 370. Pet. 54–55. When
virtualized, the clone is usable by application 302 to read data from the
clone. Pet. 55–56.
4. Analysis
Patent Owner has five principal arguments regarding Becker and
Valiyaparambil. PO Resp. 53–60. Each argument is directed, as a whole, to
“[e]ach of the independent claims.” See, e.g., id. at 53. Each of the
independent claims, i.e., claims 1, 12, and 13, are substantially similar for
purposes of resolving the issues before us. Our analysis is directed to claim
1, but is applicable to each of the independent claims.
We now address Patent Owner’s arguments in turn.
a. Exporting
Claim 1 requires a step of “exporting one or more backup files.”
Petitioner’s position is that Becker transfers data from the production image,
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including files, such that the replicated image is a backup of the production
image. Pet. 48–49 (citing Ex. 1007 ¶¶ 33, 75, 162); Pet. Reply 4–5 (citing
Ex. 1007 ¶¶ 81, 158; Ex. 1014 ¶¶ 10–12). Petitioner’s position is also that
replicated image 356 itself is fully backed up to archive 380. Pet. 48.
Patent Owner argues that Becker and Valiyaparambil do not describe
an “export.” PO Resp. 53–54. Specifically, Patent Owner argues that
Becker relies on copying and what it copies are not files using file-level
protocols. Id. As with the similar argument made with respect to Liu, this
argument is unpersuasive because it relies on constructions of “export” and
“backup files” not commensurate with the broadest reasonable
interpretation. In addition, the record establishes that Becker exports
individual application files stored in the backup file because those files are
stored in, and accessible from, the cloned image. Ex. 1014 ¶ 12 (citing Ex.
1007 ¶ 158); Ex. 1007 ¶ 158 (the “application on the primary . . . pulls the
applicable [requested] files out of the cloned image 372”).
In view of the above, we determine that Becker describes exporting as
claimed.
b. Staging Area
Claim 1 requires “creating a specified staging area.” Petitioner’s
position is that the backup storage system of Becker is the staging area
because it is where the backup data is stored. Pet. 50 (citing Ex. 1007 ¶¶ 32,
75–76, 161–162); Pet. Reply 6–7 (citing Ex. 1007 ¶ 55; Ex. 1014 ¶¶ 13–17).
Patent Owner argues that Becker and Valiyaparambil do not describe
a “staging area.” PO Resp. 54–56. In effect, Patent Owner argues that a
“staging area” is “an allocated portion of storage” and cannot be part of a
server, and that Petitioner merely points to a computer server for the staging
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area. See id. The broadest reasonable interpretation of “staging area,”
however, does not preclude that staging area from being a part of a server, as
we determined above. The data in Becker is being stored on some storage
medium on that server. See, e.g., Ex. 1007 ¶ 76 (discussing “[t]he data
blocks in the replicated image [356]”). Thus, we determine that Becker
describes a staging area as claimed.
c. Recovery Process
Claim 1 recites a step of “running a recovery process,” which the
claim defines as the steps of “writing recovery changes to . . . recovery files”
and “saving the . . . backup files and . . . recovery files.” Petitioner’s
position is that journal 370 of Becker saves the recovery changes and that
the backup files and recovery files are saved in journal 370 and replicated
image 356. Pet. 51–54 (citing Ex. 1007 ¶¶ 37, 76–77, 105; Ex. 1002 ¶ 108).
Patent Owner argues that Becker and Valiyaparambil do not describe
“running a recovery process.” PO Resp. 56–57. Specifically, Patent Owner
argues that “the ‘861 Patent discloses two distinct phases,” that Becker
describes a “post-storage process,” and that Becker “defers any potential
recovery steps to the restoration phase.” Id. These arguments are similar to
those made above with respect to Liu, and similarly are unpersuasive for not
being commensurate in scope with the claims. Thus, we determine that
Becker describes a recovery process as claimed.
d. Virtualization Steps
Claim 1 requires two virtualization steps. The first is a virtualization
of the backup files into the staging area and the second is a virtualization of
the backup files and the recovery files. Petitioner’s position is that the first
virtualization is met when the replication image is made into a cloned image.
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Pet. 50–51 (citing Ex. 1007 ¶ 76; Ex. 1002 ¶¶ 40, 106); Pet. Reply 8–9
(citing Ex. 1007 ¶ 77; Ex. 1014 ¶ 15). Petitioner’s position is that the second
virtualization is met when the cloned image is used by applications. Pet. 54–
55 (citing Ex. 1007 ¶¶ 37, 76–77; Ex. 1002 ¶¶ 102–103, 109); Pet. Reply 9
(citing Ex. 1007 ¶ 77; Ex. 1014 ¶ 16).
Patent Owner argues that Petitioner cites to the same disclosure of
Becker for both virtualization steps. PO Resp. 57. We are not persuaded
that Patent Owner’s characterization of Petitioner’s ground is accurate. The
first claimed virtualization step is of the backup files into the staging area.
Petitioner’s position is that the first virtualization in Becker is of backup
image 356 into cloned image 372. Pet. 50–51; Pet. Reply 8–9. The second
claimed virtualization step is of the backup file and the recovery files.
Petitioner’s position is that the second virtualization in Becker is of cloned
image 372 to the application. Pet. 54–55; Pet. Reply 9. We are persuaded
that these are two different virtualizations (one of the backup, one of the
clone). Therefore, we determine that Becker’s disclosure describes the two
virtualization steps as claimed.
e. Unmodified Backup File
Claim 1 requires that the backup file “remain[s] unmodified” during
the recovery process. Petitioner has two alternative positions for this claim
limitation. Petitioner’s first position is that the backup file in Becker is
unmodified because writes are redirected to, and stored in, journal 370.
Pet. 51–52 (citing Ex. 1007 ¶ 77; Ex. 1002 ¶ 108). Petitioner’s alternative
position is that Valiyaparambil describes a backup file and recovery files
stored in the form of incremental snapshots, and that it would have been
obvious to substitute this alternative form of backup into Becker’s system.
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Pet. 52–53 (citing Ex. 1008 ¶¶ 21–23; Ex. 1002 ¶ 119); Pet. Reply 9–10
(citing Ex. 1008 ¶ 10; Ex. 1014 ¶¶ 18–19).
Patent Owner argues that the backup file in Becker is not unmodified.
PO Resp. 57–59. Patent Owner’s argument, however, focuses on whether
replicated image 356 itself is unmodified and not whether the backup file is
unmodified. As Becker explains, once read/writable clone 372 has been
created, backup manager 350 utilizes journal 370 “to maintain a copy of the
original state of the replicated image 356 when the [clone] was taken.”
Ex. 1007 ¶ 77; see id. ¶ 76. Thus, we determine that the backup file remains
unmodified, even though portions of it may be moved to journal 370 in order
to preserve that unmodified, “original state.” Ex. 1007 ¶ 77. Accordingly,
we are not persuaded by Patent Owner’s argument.
Patent Owner argues, with respect to Petitioner’s alternative position,
that one of ordinary skill in the art would not have combined Becker with
Valiyaparambil in this manner. PO Resp. 59–60. Specifically, Patent
Owner argues that “the approaches of Valiyaparambil and Becker differ in
their approach to restoration of the backed up image to a desired point-in-
time.” Id. at 60 (citing Ex. 2003 ¶¶ 210–213). Patent Owner argues that
“unlike Valiyaparambil, Becker keeps the current replicated image closely
synchronized with the primary image and free of the overhead of snapshot
management.” Id. at 59. In this manner, according to Patent Owner,
Petitioner’s proposed modification of Becker “changes Becker’s principles
of operation.” Id.
Petitioner replies that changing from one method to another would be
“trivial” and “a simple substitution that obtains predictable results.” Pet.
Reply 9 (citing Ex. 1014 ¶¶ 18–19). Petitioner disputes Patent Owner’s
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characterization of Valiyaparambil and Petitioner’s declarant, Dr. Shenoy,
testifies that Valiyaparambil, like Becker, keeps the backup closely
synchronized. Ex. 1014 ¶ 18 (citing Ex.1008 ¶ 10).
Having reviewed the testimony of Drs. Weissman and Shenoy on this
issue, as well as the other evidence before us, we are persuaded that it would
have been obvious to a person of ordinary skill in the art to substitute the
replicated image using a journal approach of Becker for the backup followed
by update snapshot approach of Valiyaparambil. We are persuaded by
Dr. Shenoy’s testimony that these are both known options for achieving the
same result. Ex. 1014 ¶ 19. Specifically, the evidence shows that both
approaches are known ways of keeping an up-to-date backup that allows for
storing incremental updates as well as for providing recovery to a prior
point-in-time. Ex. 1007 ¶¶ 34, 37; Ex. 1008 ¶¶ 10, 13. Thus, we find that
Becker keeps a replicated image with the changes stored in the journal,
whereas in Valiyaparambil, the changes are kept together. Ex. 1007 ¶¶ 34,
37; Ex. 1008 ¶¶ 10, 13. Although both approaches require some internal
processing to keep track of the various versions, ultimately, they achieve the
same outward appearance of a backup mechanism that allows provision of
data as it existed at various points in time. See Ex. 1007 ¶¶ 34, 37; Ex. 1008
¶¶ 10, 13. Accordingly, we are persuaded that it would have been obvious
to modify the system of Becker with the teachings of Valiyaparambil in the
manner Petitioner proposes.
5. Conclusion for the Becker/Valiyaparambil Combination
Reviewing the record before us, we determine that Petitioner has
shown, by a preponderance of the evidence, that claim 1 of the ’861 patent is
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unpatentable over Becker and Valiyaparambil. Patent Owner does not argue
separately the other challenged claims. We have reviewed Petitioner’s
assertions regarding claims 2, 3, 6, 7, 11–15, 18, and 19, and the evidence
cited therein, and determine that Petitioner has shown, by a preponderance
of the evidence, that those claims are unpatentable. See Pet. 47–60.
D. Unpatentability in View of McInnis and Lal
We determine that all challenged claims are unpatentable as
anticipated by Liu and as obvious in view of Becker and Valiyaparambil.
Therefore, we do not reach Petitioner’s challenge based on McInnis and Lal,
and we dismiss Patent Owner’s Motion to Exclude McInnis as moot.
III. CONCLUSION
A. Petitioner has shown by a preponderance of the evidence that claims
1–3, 6, 7, 11–15, 18, and 19 of the ’861 patent are anticipated by Liu.
B. Petitioner has shown by a preponderance of the evidence that claims
1–3, 6, 7, 11–15, 18, and 19 of the ’861 patent would have been
obvious in view of Becker and Valiyaparambil.
C. Patent Owner’s Motion to Exclude is dismissed as moot.
IV. ORDER
In view of the foregoing, it is hereby:
ORDERED that claims 1–3, 6, 7, 11–15, 18, and 19 of U.S. Patent
No. 7,831,861 are unpatentable;
FURTHER ORDERED that Patent Owner’s Motion to Exclude is
dismissed; and
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FURTHER ORDERED that this is a final written decision and that
parties to the proceeding seeking judicial review of the decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

PETITONER:

Lori Gordon
Michael Q. Lee
Jonathan Strang
Daniel Block
STERNE, KESSLER, GOLDSTEIN & FOX
Lgordon-PTAB@skgf.com
Mlee-PTAB@skgf.com
Jstrang-PTAB@skgf.com
Dblock-PTAB@skgf.com

PATENT OWNER:

Joseph Richetti
Daniel Crowe
BRYAN CAVE LLP
Joe.richetti@bryancave.com
dacrowe@bryancave.com