KOM Software, Inc.

Patent Trials and Appeals Board

Jul 27, 2020

IPR2019-00591 (P.T.A.B. Jul. 27, 2020)

Trials@uspto.gov Paper 33
571-272-7822 Date: July 27, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

NETAPP, INC.,
Petitioner,
v.
KOM SOFTWARE, INC.,
Patent Owner.

IPR2019-00591
Patent 6,438,642 B1

Before KIMBERLY McGRAW, DANIEL J. GALLIGAN, and
BRENT M. DOUGAL, Administrative Patent Judges.
GALLIGAN, Administrative Patent Judge.

JUDGMENT
Final Written Decision
Determining All Challenged Claims Unpatentable
35 U.S.C. § 318(a)

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I. INTRODUCTION
In this inter partes review, NetApp, Inc. (“Petitioner”)1 challenges the
patentability of claims 1–7, 10, 16, 17, and 20 of U.S. Patent No. 6,438,642
B1 (“the ’642 patent,” Ex. 1001), which is assigned to KOM Software, Inc.
(“Patent Owner”).
We have jurisdiction under 35 U.S.C. § 6. This Final Written
Decision, issued pursuant to 35 U.S.C. § 318(a), addresses issues and
arguments raised during the trial in this inter partes review. For the reasons
discussed below, we determine that Petitioner has proven by a
preponderance of the evidence that claims 1–7, 10, 16, 17, and 20 of the
’642 patent are unpatentable. See 35 U.S.C. § 316(e) (“In an inter partes
review instituted under this chapter, the petitioner shall have the burden of
proving a proposition of unpatentability by a preponderance of the
evidence.”).
A. Procedural History
On January 24, 2019, Petitioner requested inter partes review of
claims 1–7, 10, 16, 17, and 20 of the ’642 patent on the following grounds:
Claim(s) Challenged 35 U.S.C. §2 Reference(s)/Basis
1–6, 16 103(a) Carter3
5 103(a) Carter, Frey4

1 Hewlett Packard Enterprise Company (“HPE”) was a petitioner on the
original Petition, but this inter partes review has since been terminated as to
HPE. See Paper 26.
2 The Leahy-Smith America Invents Act (“AIA”) included revisions to
35 U.S.C. §§ 102 and 103 that became effective after the filing of the
application for the ’642 patent. Therefore, we apply the pre-AIA versions of
these sections.
3 US 5,987,506, filed May 2, 1997, issued Nov. 16, 1999 (Ex. 1005).
4 US 6,029,168, filed Jan. 23, 1998, issued Feb. 22, 2000 (Ex. 1006).
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Claim(s) Challenged 35 U.S.C. §2 Reference(s)/Basis
3–5 103(a) Carter, Mutalik5
5 103(a) Carter, Frey, Mutalik
7, 10, 17, 20 103(a) Carter, Cannon6
Paper 3 (“Pet.”), 11. Patent Owner filed a Preliminary Response. Paper 9.
We instituted trial on all grounds of unpatentability. Paper 10 (“Dec. on
Inst.”), 18.
During the trial, Patent Owner filed a Response (Paper 13,
“PO Resp.”), Petitioner filed a Reply (Paper 15, “Pet. Reply”), and Patent
Owner filed a Sur-reply (Paper 19, “PO Sur-reply”).
An oral hearing was held on May 6, 2020, a transcript of which
appears in the record. Paper 32.
B. Related Matters
As required by 37 C.F.R. § 42.8(b)(2), the parties identify various
related matters. Pet. 69–70; Paper 5, 2–3; Paper 8, 2–3; Paper 29, 1–2.
Petitioner also challenges claims of the ’642 patent in IPR2019-00592, in
which a final written decision is issuing concurrently with this Decision.
C. Real Parties in Interest
The parties identify themselves as the real parties in interest. Pet. 69;
Paper 5, 2; Paper 8, 2; Paper 29, 1.
D. The ’642 Patent and Illustrative Claim
The ’642 patent relates to computer storage and characterizes the art
as having certain drawbacks. Ex. 1001, 1:14–65. For example, the ’642
patent explains that computers have limited storage in their hard drives and

5 US 6,161,111, filed Mar. 31, 1998, issued Dec. 12, 2000 (Ex. 1007).
6 US 5,983,239, filed Oct. 29, 1997, issued Nov. 9, 1999 (Ex. 1008).
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that increasing storage may require adding a hard drive, which can be costly
and inconvenient. Ex. 1001, 1:14–45. To address this and other drawbacks
of the art, the ’642 patent discloses providing a virtual storage medium that
is made up of physical storage media and that can be upgraded without
affecting users. Ex. 1001, 1:66–2:1. Figures 2 and 3 of the ’642 patent are
reproduced below.

Figure 2, reproduced above on the left, depicts a virtual storage device
having an index data area and having a data storage area made up of three
hard disk drives, denoted 11a, 11b, and 11c. Ex. 1001, 3:26–40. The index
data area stores information used to locate data stored in the virtual storage
medium. Ex. 1001, 3:41–54. Figure 3, reproduced above on the right,
shows “the virtual storage device of FIG. 2 in a network configuration.”
Ex. 1001, 4:7–9. Figure 3 depicts a network of three computers, 10a, 10b,
and 10c, having disk drives 11a, 11b, and 11c that are used to form a single
virtual storage medium. Ex. 1001, 3:57–62. The ’642 patent explains that
each of the disk drives has an area for local file storage for the user of that
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computer and another area that forms part of the virtual storage medium.
Ex. 1001, 3:62–64.
Of the challenged claims, claims 1 and 16 are independent. Claim 1 is
illustrative and is reproduced below.
1. A method of providing automated file management
comprising the steps of storing data in a virtual file-based non-
volatile storage medium comprising:
providing said virtual file-based non-volatile storage
medium having a file-based automated file management file
system interfacing with a plurality of file system storage
partitions of a plurality of corresponding physical non-volatile
storage media associated therewith, locations within each
physical non-volatile storage medium of said plurality of
corresponding physical non-volatile storage media
corresponding to locations within said virtual file-based non-
volatile storage medium;
providing data for storage in said virtual file-based non-
volatile storage medium using said file-based automated file
management file system;
determining any free space at said locations within said
virtual file-based non-volatile storage medium, said free space
sufficient for storing the provided data, locations having said any
free space corresponding to said locations within said plurality
of corresponding physical non-volatile storage media having
available non-volatile storage space therein;
storing the provided data at said locations having said any
free space; and
storing index information for the stored data.

II. ANALYSIS
A. Level of Ordinary Skill in the Art
Petitioner contends a person of ordinary skill at the time of the
invention of the ’642 patent (a “POSITA”) would have held either “a
bachelor’s degree in computer engineering or computer science with two
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years of experience in the field of data storage management or a master’s
degree in either discipline with an emphasis on data storage
management.” Pet. 11 (citing Ex. 1002 ¶ 30). Patent Owner provides a
similar definition, stating “a POSITA should have a bachelor’s degree in
electrical engineering, computer science, or equivalent with two years or
more of experience in computing systems development; a master’s degree in
electrical engineering, computer science, or equivalent; or comparable
computing systems work experience.” PO Resp. 7 (citing Ex. 2001 ¶ 32).
Thus, the parties dispute whether a POSITA must have a degree in
computer science/engineering or whether a POSITA could instead have a
degree in electrical engineering as well as whether the POSITA’s experience
must be in data storage management or could encompass experience in the
field of computing systems development. See Ex. 2001 ¶ 32 (Dr. Melendez
testifying that a POSITA may also have a degree in electronics engineering
or applied mathematics).
Although the parties articulate different levels of skill for a POSITA,
neither party explains how its recited level of skill impacts the obviousness
analysis such that application of one proposal versus the other would lead to
different ultimate outcomes.
Based on the record before us, including the types of problems and
solutions described in the ’642 patent and the cited prior art, we determine
that a person of ordinary skill in the art would have had a bachelor’s degree
in a technical field such as computer engineering, computer science,
electrical engineering, electronics engineering, applied mathematics, or their
equivalent, with two years of experience in the field of computing systems
development, including fields of data storage management or file storage
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and manipulation; a master’s degree in such a technical field; or comparable
computing systems work experience. We further note that our analysis
would be the same under either parties’ definition.
B. Claim Interpretation
The Petition was accorded a filing date of January 24, 2019. Paper 4,
1. In an inter partes review for a petition filed on or after November 13,
2018, a claim “shall be construed using the same claim construction standard
that would be used to construe the claim in a civil action under
35 U.S.C. 282(b).” 37 C.F.R. § 42.100(b) (2018); see Changes to the Claim
Construction Standard for Interpreting Claims in Trial Proceedings Before
the Patent Trial and Appeal Board, 83 Fed. Reg. 51,340 (Oct. 11, 2018)
(amending 37 C.F.R. § 42.100(b) effective November 13, 2018) (now
codified at 37 C.F.R. § 42.100(b) (2019)). In applying this claim
construction standard, we are guided by the principle that the words of a
claim “are generally given their ordinary and customary meaning,” as
understood by a person of ordinary skill in the art in question at the time of
the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir.
2005) (en banc) (citation omitted). “In determining the meaning of the
disputed claim limitation, we look principally to the intrinsic evidence of
record, examining the claim language itself, the written description, and the
prosecution history, if in evidence.” DePuy Spine, Inc. v. Medtronic
Sofamor Danek, Inc., 469 F.3d 1005, 1014 (Fed. Cir. 2006) (citing Phillips,
415 F.3d at 1312–17). There is a “heavy presumption” that a claim term
carries its ordinary and customary meaning. CCS Fitness, Inc. v. Brunswick
Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002) (citation omitted).
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1. File-based
Challenged independent claims 1 and 16 recite a “virtual file-based
non-volatile storage medium,” and claim 1 recites a “file-based automated
file management file system.” Petitioner does not offer an express
construction for these terms, but Petitioner argues that Carter’s disclosure of
a file system maintaining files teaches a system that is “file-based.” Pet. 11–
12, 23–24. Patent Owner argues that Petitioner’s contentions reflect an
“unreasonably broad interpretation of the ‘file-based’ terms as used in the
’642 Patent’s independent claims, which would allow even prior art, Ofer,
overcome during original patent prosecution to be applied against the ’642
Patent’s limitations.” PO Resp. 8 (citing Ex. 20057; Ex. 2001 ¶ 26). Patent
Owner argues that “[t]he index in the ’642 Patent is file-based (i.e., it
associates the location information at issue with a particular file)” and that
“the ’642 Patent invention has information to associate a file with a location
and that it associates a file with a location.” PO Resp. 10 (citing Ex. 2001
¶ 27). Patent Owner contrasts this “file-based” approach with “global
addressing schemes of the prior art,” in which “there is no global link
between a file and the locations at issue.” PO Resp. 10 (citing Ex. 2001
¶ 27). Patent Owner, therefore, “proposes that a ‘virtual file-based non-
volatile storage medium’ be defined as ‘a virtual non-volatile storage
medium comprising a globally accessible file data structure index to files
stored within the medium’” and that “a ‘file-based automated file
management file system’ be construed as an ‘automated file management

7 Ofer, US 6,148,369, issued Nov. 14, 2000 (Ex. 2005).
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file system comprising a globally accessible file data structure index of files
stored within the medium.’” PO Resp. 9 (citing Ex. 2001 ¶ 27).
Petitioner argues that “[t]he ’642 patent’s claims contain no support
for ‘global file index data,’ ‘global index,’ or any of the other qualifications
Patent Owner now proposes for ‘file-based,’” and Petitioner points out that
“the challenged independent claims recite ‘storing index information for the
stored data’ with no further qualifiers.” Pet. Reply 4. We agree with
Petitioner’s point that the ’642 patent does not support the inclusion of the
qualifier “globally accessible” in construing these terms. The term “global”
appears nowhere in the Specification of the ’642 patent, and we see no
persuasive reason that the recited “file-based” claim language would be used
to include this qualifier. Patent Owner argues that a “globally accessible”
index distinguishes the claims from prior art disclosures of “[a] local index
of a storage medium (non virtual),” which allegedly “the ’642 Patent
overcomes.” PO Sur-reply 4–5. All of the challenged claims, however, are
directed to providing a “virtual” storage medium, which expressly
distinguishes the claims from prior art showing merely “non virtual” storage.
Thus, prior art that discloses merely a “local index of a storage medium (non
virtual)” (see PO Sur-reply 4–5) would not satisfy the claims by the claims’
express language and would not need to be further distinguished with the
“globally accessible” index language Patent Owner seeks to incorporate into
the “file-based” limitations.
Patent Owner also argues that this “globally accessible” index
distinguishes the claims from prior art disclosures of global addressing, such
as allegedly disclosed in Ofer, which the applicant for the ’642 patent
successfully distinguished during prosecution. PO Sur-reply 5–6;
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PO Resp. 9–10. We do not agree that including the qualifier “globally
accessible” is justified for this reason either. Patent Owner is correct that
during prosecution the applicant for the ’642 patent distinguished the claims
from Ofer’s disclosure. See PO Resp. 9–10; PO Sur-reply 5–8. During
prosecution, the applicant argued the following:
A file system can determine the real allocation of which blocks
belong to which file and the sequence of the blocks. Ofer’s
device is limited to providing a block-based meta device and
would still require the addition of a separate file system, not
taught or suggested in Ofer, to store and organize the data in the
form of files. Ofer’s device simply provides a data container that
can be made up of several devices without any interpretation of
the actual contents of the blocks. Applicant maintains that Ofer’s
teaching of a block-based storage media does not anticipate,
teach or suggest the file-based storage media of the claimed
invention . . . .
Ex. 1004, 170; see PO Resp. 15 (quoting this argument at Ex. 2003, 2–4).
The applicant further argued that “[t]he present invention provides file-based
virtualization at the file system level” and that “[t]he claimed invention
operates as a file system, which is a layer above block virtualization
schemes such as disclosed in Ofer.” Ex. 1004, 171; see PO Resp. 15
(quoting this argument at Ex. 2003, 2–4). These arguments simply
distinguish a “block-based” scheme that does not use a file system and that
does not organize data in files from the claimed “file-based” subject matter.
As with the distinction between virtual and non-virtual storage, the claims
expressly recite “file-based.” Thus, Patent Owner’s arguments do not
explain how the “globally accessible” language is relevant to, much less
required to be read into, the “file-based” limitations.
Although Patent Owner proposes constructions for the terms “virtual
file-based non-volatile storage medium” and “file-based automated file
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management file system,” Patent Owner’s argument is really directed to how
the ’642 patent allegedly indexes files. Indexing is recited in claims 1 and
16 in the step “storing index information for the stored data,” and in that
regard Patent Owner argues that “[t]he index in the ’642 Patent is file-based
(i.e., it associates the location information at issue with a particular file)” and
that “the ’642 Patent invention has information to associate a file with a
location and that it associates a file with a location.” PO Resp. 10 (citing
Ex. 2001 ¶ 27). This understanding is consistent with the ’642 patent, which
explains that an index area of the virtual storage medium stores information
that “allows locating and retrieving of portions of a stored data file and/or an
entire stored data file.” Ex. 1001, 3:41–56. As explained below, this is how
the asserted prior art operates as well.
Based on the foregoing, we agree with Patent Owner that the claims
require index data that associates location information with a particular file.
We, however, do not agree with Patent Owner that the terms “virtual file-
based non-volatile storage medium” and “file-based automated file
management file system” should be construed to include the “globally
accessible” qualifier Patent Owner proposes. No further construction of the
“file-based” terms is necessary.
C. Principles of Law
A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
differences between the claimed subject matter and the prior art are such that
the subject matter, as a whole, would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
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factual determinations including (1) the scope and content of the prior art;
(2) any differences between the claimed subject matter and the prior art;
(3) the level of ordinary skill in the art; and (4) any secondary
considerations, if in evidence.8 Graham v. John Deere Co., 383 U.S. 1,
17–18 (1966).
D. Obviousness over Carter
(Claims 1–6 and 16)
Petitioner asserts claims 1–6 and 16 of the ’642 patent are
unpatentable under 35 U.S.C. § 103(a) as obvious over the teachings of
Carter. Pet. 9, 12–44.
1. Carter
Carter discloses a globally addressable storage environment that
allows data to be shared among various computers on multiple networks.
Ex. 1005, code (57). Carter discloses creating a “virtual storage space” that
spans each storage device connected to a network such that “all data stored
on the network can be stored within the virtual space and the actual physical
location of the data can be in any of the storage devices connected to the
network.” Ex. 1005, 3:10–17. Figure 2 of Carter is reproduced below.

8 Patent Owner does not present any objective evidence of nonobviousness
(i.e., secondary considerations) as to any of the challenged claims.
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Figure 2 of Carter, reproduced above, depicts “a distributed addressable
shared memory file system providing storage for computer files such as
source code files, wordprocessing documents files, etc.” Ex. 1005, 5:13–17.
Referring to Figure 2, Carter discloses that “structured file system 60
employs the properties of the addressable shared memory space 20 to
implement what looks to all network nodes like a coherent, single file
system when in fact it spans all network nodes coupled to the addressable
shared memory space 20.” Ex. 1005, 8:25–30.
2. Independent Claim 1
a) Providing a virtual non-volatile storage medium
Independent claim 1 recites “[a] method of providing automated file
management comprising the steps of storing data in a virtual file-based non-
volatile storage medium comprising” five steps recited in the claim. The
first step of claim 1 recites the following:
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providing said virtual file-based non-volatile storage medium
having a file-based automated file management file system
interfacing with a plurality of file system storage partitions of a
plurality of corresponding physical non-volatile storage media
associated therewith, locations within each physical non-volatile
storage medium of said plurality of corresponding physical non-
volatile storage media corresponding to locations within said
virtual file-based non-volatile storage medium.
Petitioner asserts Carter teaches this subject matter. Pet. 21–28.
Patent Owner argues that Carter does not teach the following three
limitations recited in claim 1: (i) a “file-based” system (PO Resp. 14–24);
(ii) a “non-volatile storage medium” (PO Resp. 24–28); or (iii) a “file-based
automated file management file system” (PO Resp. 28–29). Below, we
discuss Petitioner’s contentions in more detail and address Patent Owner’s
arguments.
i. File-based
Petitioner contends Carter’s virtual storage space teaches the claimed
“virtual file-based non-volatile storage medium.” Pet. 22–24. Carter
discloses that “[t]he environment in which the invention operates includes
systems that create and manage a virtual storage space shared by each
computer on a network.” Ex. 1005, 3:10–12 (emphasis added). Petitioner
contends Carter’s virtual storage space is “file-based,” as recited in claim 1,
because Carter discloses that its system can be a file system that is used to
store files. Pet. 23–24 (citing Ex. 1005, 5:13–23, 6:3–5, 6:22–30, 8:25–60;
Ex. 1002 ¶¶ 49–51).
Patent Owner argues that Carter does not teach the “virtual file-based
non-volatile storage medium” recited in claim 1 because Carter’s system
uses “global addresses to find specific address (blocks or pages)” and,
therefore, is not “file-based” as required by the claims. See PO Resp. 13–24.
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Patent Owner contends Carter’s system is a “virtual address-based non-
volatile storage medium,” which, according to Patent Owner, is the type of
address-based system that the applicant distinguished during prosecution of
the application for the ’642 patent. PO Resp. 9–10, 13–24. In particular,
Patent Owner quotes the applicant’s arguments during prosecution
characterizing Ofer, a prior art patent applied by the Examiner, as teaching
“a block-based storage media [that] does not anticipate, teach or suggest the
file-based storage media of the claimed invention.” PO Resp. 15 (quoting
Ex. 2003, 2–4). Patent Owner also quotes the applicant’s representation
during prosecution that “Ofer’s device is limited to providing a block-based
meta device and would still require the addition of a separate file system, not
taught or suggested in Ofer, to store and organize the data in the form of
files.” PO Resp. 15 (quoting Ex. 2003, 2–4). Patent Owner argues that
“[t]he mere existence of a file system, such as in both Carter (MS Windows
NT) and Ofer (MS Windows NT), is not sufficient to disclose ‘a virtual file-
based non-volatile storage medium.’” PO Resp. 15–16. Patent Owner
further argues that “both Carter and Ofer provide for the use of memory
locations across multiple storage devices in exactly the same way—using
global addresses to find device specific addresses (blocks or pages) and as
such neither disclose nor render obvious ‘a virtual file-based non-volatile
storage medium.’” PO Resp. 16 (citing Ex. 1005, 9:60–62; Ex. 2005, 1:32–
34; Ex. 2001 ¶ 37); see PO Resp. 16–20 (arguing additional similarities
between Carter and Ofer). For the reasons that follow, we are persuaded that
Carter teaches a system that is “file-based.”
As an initial matter, Patent Owner’s argument during this trial that
Ofer actually teaches a file system (PO Resp. 15–16) contradicts the
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applicant’s representation to the Office during prosecution that Ofer would
“require the addition of a separate file system, not taught or suggested in
Ofer, to store and organize the data in the form of files.” Ex. 2003, 4;
Ex. 1004, 170. Furthermore, even if Patent Owner is correct that Carter
discloses “using global addresses to find device specific addresses (blocks or
pages)” (PO Resp. 16), we disagree that such a disclosure means Carter does
not teach a “virtual file-based non-volatile storage medium” as recited in the
claims. Carter contains the disclosure that the ’642 patent applicant argued
was lacking in the prior art cited by the Examiner, as illustrated in the
following argument made by the applicant during prosecution:
A file system can determine the real allocation of which blocks
belong to which file and the sequence of the blocks. Ofer’s
device is limited to providing a block-based meta device and
would still require the addition of a separate file system, not
taught or suggested in Ofer, to store and organize the data in the
form of files. Ofer’s device simply provides a data container that
can be made up of several devices without any interpretation of
the actual contents of the blocks.
Ex. 1004, 170; see PO Resp. 15 (quoting this argument at Ex. 2003, 2–4).
Carter expressly discloses a file system to manage files. Figure 2 of Carter,
reproduced above in § II.D.1, depicts “a distributed addressable shared
memory file system providing storage for computer files such as source code
files, wordprocessing documents files, etc.” Ex. 1005, 5:13–17, cited in
Pet. 24. Referring to Figure 2, Carter discloses that “structured file
system 60 employs the properties of the addressable shared memory space
20 to implement what looks to all network nodes like a coherent, single file
system when in fact it spans all network nodes coupled to the addressable
shared memory space 20.” Ex. 1005, 8:25–30, cited in Pet. 23.
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Patent Owner acknowledges that “Carter provides automated file
management in general,” but Patent Owner asserts that “the automated file
management is performed through a global addressing scheme
(address-based) rather than a file-based methodology.” PO Sur-reply 20
(citing Ex. 2001 ¶¶ 41–51). Patent Owner’s argument implies that a global
addressing scheme and a file-based scheme are mutually exclusive. We
disagree because Carter discloses a file system that uses an addressable
shared memory space to organize, store, and retrieve files. For example,
Carter discloses the following:
Referring to FIG. 3, in the disclosed embodiment of the
file system 60, a directory 126 (such as the directory 80 of
FIG. 2) is accessed by starting at a directory Inode or descriptor
128 containing an address that points to a directory entries stream
descriptor 130. This descriptor 130 is a pointer to a block of data
containing directory entries for files File 1 through File 3. The
directory entry for File 1 has a number of entries; one of the
entries is a string containing the name of the file and another
entry is the address of the Inodes and stream descriptors 132.
The stream descriptors for File 1 are used to locate and retrieve
the various 4 kilobyte pages in the addressable shared memory
space 20 that constitute File 1. Other files are retrieved and
constructed from the addressable shared memory space 20 in the
same fashion.
Ex. 1005, 9:34–48; see Pet. 36–40 (citing, inter alia, Ex. 1005, 9:34–48)
(explaining how Carter teaches “storing index information for the stored
data”). Thus, Carter discloses a file tracking scheme that associates the
location information at issue with a particular file to retrieve the file, which
meets Patent Owner’s interpretation of “file-based.” See PO Resp. 10 (“The
index in the ’642 Patent is file-based (i.e., it associates the location
information at issue with a particular file).”). Carter’s disclosure of a file
system that stores and organizes files is precisely the disclosure that the
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applicant for the ’642 patent argued was lacking in the asserted prior art
(Ofer) during examination. See Ex. 1004, 170 (“Ofer’s device is limited to
providing a block-based meta device and would still require the addition of
a separate file system, not taught or suggested in Ofer, to store and organize
the data in the form of files.”).
Patent Owner’s declarant, Dr. Melendez, testifies as follows:
The global file index of the ‘642 patent establishes its
differentiation over the global addressing of the prior art (e.g.
Carter and Ofer) consistent with allowance. In a virtual file-
based non-volatile storage medium it is the global index of a file
data structure that is used in order to ultimately identify a pointer
and/or address location of a file within a physical storage device.
When instead a global address is used by a control program to
identify a data object that is mapped to particular page location(s)
within a physical storage device, the result may be better referred
to as an “address-based non-volatile storage medium.”
Ex. 2001 ¶ 27; see also Ex. 2001 ¶ 27 n.1 (analogizing an indexing system to
a library card catalog). Patent Owner similarly argues that “[i]n a virtual
file-based non-volatile storage medium, it is the global index of a file data
structure that is used in order to ultimately identify a pointer and/or address
location of a file within a physical storage device,” whereas “in the prior art
(Ofer/Carter), a global address is used by a control program to identify a
data object that is mapped to particular page location(s) within a physical
storage device.” PO Resp. 9 (citing Ex. 2001 ¶ 27). Dr. Melendez’s
testimony and Patent Owner’s argument, however, ignore Carter’s detailed
disclosure of a file system that uses various data to track the location of files.
See Ex. 1005, 9:34–48 (quoted above); see also Pet. 36–40 (citing, inter alia,
Ex. 1005, 9:34–48) (explaining how Carter teaches “storing index
information for the stored data”).
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For all of the reasons discussed above, we are persuaded, and we find,
that Carter’s virtual storage space is “file-based,” as required by claim 1.
ii. Non-volatile
Petitioner also contends that Carter teaches that its virtual storage
space is “non-volatile,” as recited in claim 1, “because it comprises hard
disks that store data in a persistent form, which is how a person of ordinary
skill in the art would have understood the term ‘non-volatile’ at the time the
’642 patent was filed.” Pet. 22–23 (citing Ex. 1002 ¶ 49; Ex. 1005, 3:50–54,
3:65–4:5, 4:17–37, 4:62–67, 7:20–38). Carter discloses, for example, that
shared memory subsystems provide the network nodes with
access to an addressable shared memory space, wherein at least
a portion of that space is assigned to at least a portion of one or
more of the persistent storage memory devices (e.g., hard disks)
to allow the nodes addressably to store and retrieve data to and
from the one or more persistent storage memory devices.
Ex. 1005, 7:28–34 (emphasis added). There is no dispute that a persistent
storage device such as a hard disk is a non-volatile storage medium, but
Patent Owner argues Carter discloses using both volatile and non-volatile
memory and, therefore, does not teach the recited “virtual file-based non-
volatile storage medium.” PO Resp. 24–28. Patent Owner’s argument is
premised on its assertion that “[t]he ’642 Patent innovatively restricted its
virtual file-based storage to physical non-volatile storage media.”
PO Resp. 27.
We disagree with Patent Owner. The claims recite providing a
“virtual file-based non-volatile storage medium.” The claims do not prohibit
the use or inclusion of volatile memory. Carter unquestionably discloses a
non-volatile storage medium. Patent Owner acknowledges this fact in
arguing the following:
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Carter discloses use of two directory mechanisms within the
globally addressable data storage system including, “a first
directory for tracking data stored on the persistent data storage
devices (e.g., hard disks) and a second directory for tracking data
stored on volatile storage devices (e.g., RAM) on the first and
second computer networks.”
PO Resp. 25–26 (quoting Ex. 1005, 4:62–67). We find that Carter’s
disclosure of the “first directory for tracking data stored on the persistent
data storage devices (e.g., hard disks)” teaches that Carter tracks data,
including files (discussed above), that are stored on the persistent storage
devices (i.e., non-volatile storage media). Therefore, we find that Carter
teaches a “virtual file-based non-volatile storage medium,” as recited in
claims 1 and 16. Carter’s additional disclosure of a second directory for
tracking data stored on volatile devices may go above and beyond what is
required in the claims, but it does not negate Carter’s clear disclosure of the
claimed subject matter.
iii. Automated
Petitioner also contends Carter’s disclosure that its file system has
certain automatic features teaches “a file-based automated file management
file system,” as recited in claim 1. Pet. 21 (citing Ex. 1005, 8:43–46, 10:8–
9; Ex. 1002 ¶ 47), 25. For example, Carter discloses that file system 60 of
Figure 2 “automatically replicates data for redundancy and fault tolerance”
and “automatically and dynamically migrates data to account for varying
network usage and traffic patterns.” Ex. 1005, 8:43–46; see also Ex. 1005,
10:8–9 (“A default fileset is created automatically at the initialization of the
addressable shared memory space 20.”).
Patent Owner argues that “Carter provides automated file
management in general, but the automated file management is performed
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through a global addressing scheme (address-based) rather than a file-based
methodology.” PO Sur-reply 20; see also PO Resp. 28–29 (arguing that
Petitioners explain why Carter provides automated file management but do
not explain how Carter discloses or renders obvious a “file-based automated
file management file system”). Thus, Patent Owner acknowledges that
Carter teaches automated file management but disputes the “file-based”
aspect of this limitation. For the reasons explained above in § II.D.2.a.i, we
disagree with Patent Owner’s argument that Carter does not teach a “file-
based” system. We are persuaded, and we find, that Carter’s disclosure of a
file-based file system having certain automated functions teaches “a file-
based automated file management file system,” as recited in claim 1.
Ex. 1005, 8:42–50, 10:8–9.
iv. Remaining undisputed subject matter
for preamble and first step
Petitioner also contends Carter teaches that its virtual storage system
“interfac[es] with a plurality of file system storage partitions of a plurality of
corresponding physical non-volatile storage media associated therewith,
locations within each physical non-volatile storage medium of said plurality
of corresponding physical non-volatile storage media corresponding to
locations within said virtual file-based non-volatile storage medium,” as
recited in claim 1. Pet. 25–28. In particular, Petitioner relies on Carter’s
disclosure that the virtual storage space is made up of storage from multiple
computers. Pet. 25–27 (citing Ex. 1005, 3:1–4:17, 6:4–14, 7:27–34, 9:1–4;
Ex. 1002 ¶¶ 55–59). Petitioner also relies on Carter’s disclosure of mapping
the virtual storage space to persistent storage devices on the network.
Pet. 27–28 (citing Ex. 1005, 8:34–39, 16:12–16, 16:21–2; Ex. 1002 ¶ 60).
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Referring to Figure 1, Carter discloses that a portion of the shared memory
space “is assigned to at least a portion of one or more of the persistent
storage memory devices (e.g., hard disks) to allow the nodes addressably to
store and retrieve data to and from the one or more persistent storage
memory devices.” Ex. 1005, 7:27–34. Carter further discloses that
file system 60 manages the mapping of a directory and file
structure onto a distributed addressable shared memory system
20 which has at least a portion of its addressable space mapped
or assigned to at least a portion of one or more persistent storage
devices (e.g., hard disks) on the network.
Ex. 1005, 8:32–39. Patent Owner does not dispute Petitioner’s contentions
as to this subject matter. Based on the evidence discussed above, we are
persuaded, and we find, that Carter teaches the limitation of claim 1 reciting
“interfacing with a plurality of file system storage partitions of a plurality of
corresponding physical non-volatile storage media associated therewith,
locations within each physical non-volatile storage medium of said plurality
of corresponding physical non-volatile storage media corresponding to
locations within said virtual file-based non-volatile storage medium.”
v. Summary finding for preamble and first step
Based on the foregoing discussions, we are persuaded by Petitioner’s
contentions and evidence, and we find that Carter teaches
[a] method of providing automated file management comprising
the steps of storing data in a virtual file-based non-volatile
storage medium comprising: providing said virtual file-based
non-volatile storage medium having a file-based automated file
management file system interfacing with a plurality of file
system storage partitions of a plurality of corresponding physical
non-volatile storage media associated therewith, locations within
each physical non-volatile storage medium of said plurality of
corresponding physical non-volatile storage media
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corresponding to locations within said virtual file-based non-
volatile storage medium,
as recited in claim 1.9 See Pet. 21–28.
b) Providing data for storage
Claim 1 recites “providing data for storage in said virtual file-based
non-volatile storage medium using said file-based automated file
management file system.” Petitioner contends Carter’s disclosure of a user
storing data in the shared memory system teaches this subject matter.
Pet. 28–29 (citing Ex. 1005, 6:56–68, 7:43–60, 7:65–8:4, 8:17–21, 8:25–30,
Fig. 1; Ex. 1002 ¶¶ 63–65). For example, referring to Figure 1, Carter
discloses that “a system user at node 12a can direct object 50a to be inserted
at a set location within the data store 28.” Ex. 1005, 8:17–19; see also
Ex. 1005, 7:64–67 (“The graphical user interface 42 allows a user at a node,
for example at node 12a, to insert data objects graphically within the
structured store of data 28.”). Carter discloses that “object 50a” is a “data
object[].” Ex. 1005, 8:14–17. Patent Owner does not dispute Petitioner’s
contentions as to this limitation. Based on Petitioner’s persuasive argument
and evidence, we find Carter teaches “providing data for storage in said
virtual file-based non-volatile storage medium using said file-based
automated file management file system,” as recited in claim 1.
c) Determining free space
Claim 1 recites “determining any free space at said locations within
said virtual file-based non-volatile storage medium, said free space sufficient
for storing the provided data, locations having said any free space

9 We need not decide whether the preambles of the challenged claims are
limiting because we find that Petitioner has shown that these preamble
recitations are taught by the cited art.
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corresponding to said locations within said plurality of corresponding
physical non-volatile storage media having available non-volatile storage
space therein.” Petitioner contends Carter’s disclosure that its file system
determines whether there is enough free space to accommodate a requested
allocation of disk space teaches this subject matter. Pet. 30–32 (citing
Ex. 1005, 3:36–40, 12:40–43, 12:59–13:3; Ex. 1002 ¶¶ 66–72).
Carter discloses the following:
Similar to the [WindowsNT File System (NTFS)], which
controls the allocation of each disk partition and therefore can
quickly determine the free volume space available for allocation,
the file system 60 requests the total available space information
and uses this information to quickly determine whether to
proceed with the allocation processing. If the total available
space is less than the required allocation size, the request is
denied immediately. Otherwise, the file system 60 will proceed
to allocate the pages to satisfy the request.
Ex. 1005, 12:59–67. As discussed above in § II.D.1.a.ii, Carter discloses
that file system 60 uses persistent storage devices of computers on the
network to store data. Ex. 1005, 7:27–34, 8:32–39. Patent Owner does not
dispute Petitioner’s contentions as to this limitation. Based on Petitioner’s
persuasive argument and evidence, we find Carter teaches “determining any
free space at said locations within said virtual file-based non-volatile storage
medium, said free space sufficient for storing the provided data, locations
having said any free space corresponding to said locations within said
plurality of corresponding physical non-volatile storage media having
available non-volatile storage space therein,” as recited in claim 1.10

10 Petitioner also argues that Carter teaches the subject matter recited in this
limitation “if one were to interpret ‘free space’ as requiring storage locations
that have either never held data or have had any residual data expunged.”
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d) Storing the provided data
Claim 1 recites “storing the provided data at said locations having said
any free space.” Petitioner contends Carter teaches storing data at locations
with free space. Pet. 34–35 (citing Ex. 1005, 7:67–8:4, 9:51–56, 12:66–67,
Fig. 4; Ex. 1002 ¶¶ 74–76). As discussed above in § II.D.2.b, Carter
discloses that a user can instruct the system to store a data object. Ex. 1005,
8:17–19. Carter further discloses that “data control program 32a can
generate a set of commands that will present a stream of data to the shared
memory subsystem 34a and the shared memory subsystem 34a will employ
the data stream to store an object within the structured store of data 28.”
Ex. 1005, 7:67–8:4. Patent Owner does not dispute Petitioner’s contentions
as to this limitation. Based on Petitioner’s persuasive argument and
evidence, we find Carter’s disclosure of storing an object teaches “storing
the provided data at said locations having said any free space.”
e) Storing index information
Claim 1 recites “storing index information for the stored data.”
Petitioner contends Carter’s storage of information that is used to access the
stored data teaches this subject matter. Pet. 36–40 (citing Ex. 1005, 3:37–
40, 7:23–28, 9:34–65, 11:34–50, Figs. 3, 4; Ex. 1002 ¶¶ 77–84). The
following passage of Carter discloses using various pieces of data to access
files:
Referring to FIG. 3, in the disclosed embodiment of the
file system 60, a directory 126 (such as the directory 80 of FIG.
2) is accessed by starting at a directory Inode or descriptor 128

Pet. 33. Neither party argues for this interpretation of “free space,” and we
do not view the claims as being so limited. Therefore, we need not rely on
this alternative argument.
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containing an address that points to a directory entries stream
descriptor 130. This descriptor 130 is a pointer to a block of data
containing directory entries for files File 1 through File 3. The
directory entry for File 1 has a number of entries; one of the
entries is a string containing the name of the file and another
entry is the address of the Inodes and stream descriptors 132.
The stream descriptors for File 1 are used to locate and retrieve
the various 4 kilobyte pages in the addressable shared memory
space 20 that constitute File 1. Other files are retrieved and
constructed from the addressable shared memory space 20 in the
same fashion.
Ex. 1005, 9:34–48.
As part of its “file-based” arguments, Patent Owner argues that Carter
does not teach using “file index data in order to process the storage and data
access requests of the host.” PO Resp. 18–19. For the reasons explained
above in § II.D.2.a.i, we disagree with Patent Owner’s “file-based”
arguments, including Patent Owner’s argument that Carter does not teach a
file index.
As explained above in § II.D.2.a.i, we find that Carter discloses a file
tracking scheme that associates the location information at issue with a
particular file to retrieve the file. See Ex. 1005, 9:34–48; see also Ex. 1002
¶ 78 (“A person of ordinary skill would recognize that Inode is a shorthand
way of referring to an ‘index node.’ Inodes were well-known mechanisms
prior to 1999, to track information relating to a data file, and specifically the
actual data blocks making up the file.”). Based on Petitioner’s persuasive
argument and evidence, we find Carter teaches “storing index information
for the stored data,” as recited in claim 1.
f) Determination of unpatentability of claim 1
For the reasons discussed above, we find Carter teaches all of the
limitations and the overall method of claim 1. Having considered the full
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record developed during trial, we are persuaded by Petitioner’s contentions
and evidence, and we determine that Petitioner has proven by a
preponderance of the evidence that claim 1 of the ’642 patent is unpatentable
under 35 U.S.C. § 103(a) as obvious over the teachings of Carter.
3. Dependent Claim 2
Claim 2 recites, “The method as defined in claim 1 wherein the index
information comprises data indicative of a file identifier, and locations
within said virtual file-based nonvolatile storage medium for the stored
data.” Referring to its contentions for the limitation of claim 1 reciting
“storing index information for the stored data,” Petitioner argues that
Carter’s index information “include[s] ‘a string containing the name of the
file,’” thereby teaching the claimed “data indicative of a file identifier,” and
that Carter’s index information includes “‘the address of the Inodes and
stream descriptors’ associated with the file,” thereby teaching the claimed
“locations within said virtual file-based nonvolatile storage medium for the
stored data.” Pet. 40–41 (quoting Ex. 1005, 9:40–43) (citing Ex. 1002
¶¶ 85–86).
Patent Owner does not separately address the additional limitations
recited in claim 2. See generally PO Resp.
We are persuaded that Carter teaches the subject matter of claim 2
because, as discussed above in §§ II.D.2.a.i and II.D.2.e, Carter discloses
storing index information for the file data so that the file can be retrieved
from the locations where the data are stored. Ex. 1005, 9:34–48. Having
considered the full record developed during trial, we are persuaded by
Petitioner’s contentions and evidence, summarized above, and we determine
that Petitioner has proven by a preponderance of the evidence that claim 2 of
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the ’642 patent is unpatentable under 35 U.S.C. § 103(a) as obvious over the
teachings of Carter.
4. Dependent Claim 3
Claim 3 recites, “The method as defined in claim 1 wherein the index
information comprises data indicative of a file identifier, an indication of
said physical non-volatile storage medium on which the stored data is stored,
and the corresponding locations within said physical non-volatile storage
medium for the stored data.” Patent Owner separately argues the
patentability of claim 3. PO Resp. 33–35.
Like claim 2, claim 3 recites that “the index information comprises
data indicative of a file identifier.” Petitioner argues Carter teaches this
subject matter for the same reasons given for claim 2 (see Pet. 40–41), and
we are persuaded by Petitioner’s contentions (see § II.D.3 above).
Claim 3 differs from claim 2 in reciting that the index information
comprises “an indication of said physical non-volatile storage medium on
which the stored data is stored, and the corresponding locations within said
physical non-volatile storage medium for the stored data.” Citing Carter’s
disclosure that “stream descriptors for File 1 are used to locate and retrieve
the various 4 kilobyte pages in the addressable shared memory space 20 that
constitute File 1” (Ex. 1005, 9:43–46), Petitioner argues that a person of
ordinary skill in the art would view these pages as either virtual pages or
physical pages. Pet. 42 (citing Ex. 1002 ¶ 90). Petitioner argues that “[i]f
they are physical, then they identify the specific physical locations where the
data is stored (i.e., the claimed ‘corresponding locations within said physical
nonvolatile storage medium for the stored data’).” Pet. 42 (citing Ex. 1005,
9:60–63; Ex. 1002 ¶ 90). Petitioner argues that if the pages are viewed as
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virtual, “then Carter’s virtual-to-physical mappings, which identify the
specific physical locations for the stored data, provide the claimed
‘corresponding locations within said physical non-volatile storage medium
for the stored data.’” Pet. 42 (citing Ex. 1002 ¶ 90); see Ex. 1005, 3:37–40
(“The system provides physical storage for each portion of the virtual space
in use by mapping (i.e., assigning) each such portion to a physical device
such as RAM or a hard disk.”), quoted in Pet. 38–39. Petitioner argues that
Carter’s storage space spans multiple physical devices and, therefore, that
“one skilled in the art would have understood that Carter’s identification of
physical locations in the form of pages would also specify the physical
devices where those pages reside.” Pet. 42–43 (citing Ex. 1005, 3:10–16;
Ex. 1002 ¶ 91).
According to Patent Owner, “[t]he ’642 Patent is explicit that under
the limitations of dependent claim 3, ‘a need for a lookup table to translate
virtual addresses is eliminated.’” PO Resp. 33 (quoting Ex. 1001, 3:51–54).
Patent Owner argues that the limitations of claim 3 are
discussed in detail in the ’642 Patent as follows: “[a]lternatively,
when index information is stored as a storage medium and a
location within that storage medium, a need for a lookup table
to translate virtual addresses is eliminated. Unfortunately, this
alternative also makes moving of data or replacing of an entire
physical storage medium more difficult.”
PO Resp. 33 (quoting Ex. 1001, 3:51–56). Patent Owner argues that
“Carter’s entire methodology depends upon translation of global addresses
and lookup tables” and that “[t]he direct mapping of virtual locations to
physical locations creates the very lookup table to translate virtual addresses
that the ’642 Patent aims to eliminate within the embodiment of dependent
claim 3.” PO Resp. 33, 35.
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We do not agree with Patent Owner’s suggestion that claim 3
prohibits the use of a lookup table. First, the claim recites no such negative
limitation. Second, the passage from the ’642 patent relied upon by Patent
Owner does not prohibit the use of a lookup table; rather, it says that a
lookup table is not necessary in certain circumstances. Thus, we agree with
Petitioner that “nothing in the claims recites the exclusion of lookup tables.”
See Pet. Reply 25.
In its Sur-reply, Patent Owner contends that “Petitioner
misunderstands Patent Owner’s argument” and that the language of claim 3
“replaces the lookup table and provides the very information a lookup table
would be used to determine.” PO Sur-reply 23. Therefore, according to
Patent Owner, “it would make no sense for a lookup table to be present to
provide information already acquired.” PO Sur-reply 23. Whether or not a
lookup table makes sense is irrelevant to whether Carter teaches the subject
matter of claim 3, which does not prohibit the use of a lookup table.
We are persuaded by Petitioner’s explanation as to how Carter teaches
the limitations of claim 3. Carter explains that its “virtual space spans each
storage device (e.g., RAM and hard disk) connected to the network” and that
“all data stored on the network can be stored within the virtual space and the
actual physical location of the data can be in any of the storage devices
connected to the network.” Ex. 1005, 3:11–16, cited in Pet. 42. As
explained above in §§ II.D.2.a.i and II.D.2.e, Carter discloses storing index
information that tracks where the file is stored so that the file can be
retrieved. Ex. 1005, 9:34–38. Dr. Long testifies that “Carter’s
identification of physical locations in the form of pages would also specify
the physical devices where those pages reside” because “[w]ithout this
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device information, a person of ordinary skill would recognize that Carter’s
system would not be able to reliably locate the stored data because it would
be unclear on which drives to find the specified pages.” Ex. 1002 ¶ 91. We
credit this testimony because it consistent with Carter’s file tracking scheme
that is used to retrieve files, which can be stored in various physical places in
the virtual storage. Ex. 1005, 9:34–48. This is why Carter discloses stream
descriptors for a file that “are used to locate and retrieve the various 4
kilobyte pages in the addressable shared memory space 20 that constitute”
the file. Ex. 1005, 9:44–46. Carter discloses that “[o]ther files are retrieved
and constructed from the addressable shared memory space 20 in the same
fashion.” Ex. 1005, 9:46–48. Thus, we find Carter’s detailed description of
tracking the locations where the constituent parts of a file are stored teaches
“an indication of said physical non-volatile storage medium on which the
stored data is stored, and the corresponding locations within said physical
non-volatile storage medium for the stored data,” as recited in claim 3.
Having considered the full record developed during trial, we are
persuaded by Petitioner’s contentions and evidence, and we determine that
Petitioner has proven by a preponderance of the evidence that claim 3 of the
’642 patent is unpatentable under 35 U.S.C. § 103(a) as obvious over the
teachings of Carter.
5. Dependent Claim 4
Claim 4 recites, “The method as defined in claim 3 wherein some of
the stored data stored within one of said physical non-volatile storage media
is duplicated data of data stored in another of said physical non-volatile
storage media.” Petitioner argues Carter’s disclosures of copying data to
different storage devices and replicating data for fault tolerance teach this
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subject matter. Pet. 44 (citing Ex. 1005, 8:43–44, 13:4–12, 23:11–21;
Ex. 1002 ¶¶ 93–96). For example, Carter discloses that a “coherent
replication controller can automatically generate a copy of the data stored in
each page and can store the copy in a memory device that is separate from
the memory device of the original copy.” Ex. 1005, 23:16–20.
Patent Owner does not separately address the additional limitations
recited in claim 4. See generally PO Resp.
We are persuaded that Carter’s disclosure of replicating data to
different memory devices teaches the data duplication recited in claim 4.
Having considered the full record developed during trial, we are persuaded
by Petitioner’s contentions and evidence, summarized above, and we
determine that Petitioner has proven by a preponderance of the evidence that
claim 4 of the ’642 patent is unpatentable under 35 U.S.C. § 103(a) as
obvious over the teachings of Carter.
6. Dependent Claim 5
Claim 5 recites, “The method as defined in claim 3 wherein a portion
of the stored data less than the whole is stored on a first physical
non-volatile storage medium and another portion of the stored data less than
the whole is stored on a second physical non-volatile storage medium.”
Petitioner argues Carter’s disclosures that multiple nodes contribute storage
space and that data is stored on multiple nodes teach this subject matter.
Pet. 45 (citing Ex. 1005, 7:28–34. 9:51–56; Ex. 1002 ¶¶ 97–98). For
example, Carter discloses, referring to Figure 1, that
shared memory subsystems provide the network nodes with
access to an addressable shared memory space, wherein at least
a portion of that space is assigned to at least a portion of one or
more of the persistent storage memory devices (e.g., hard disks)
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to allow the nodes addressably to store and retrieve data to and
from the one or more persistent storage memory devices.
Ex. 1005, 7:28–34. As discussed above in § II.D.4 for claim 3, Carter
explains that its “virtual space spans each storage device (e.g., RAM and
hard disk) connected to the network” and that “all data stored on the network
can be stored within the virtual space and the actual physical location of the
data can be in any of the storage devices connected to the network.”
Ex. 1005, 3:11–16; see Pet. 45 (referring to contentions for claim 3).
Patent Owner does not separately address the additional limitations
recited in claim 5. See generally PO Resp.
We are persuaded that Carter’s disclosure of storing data on multiple
nodes teaches that less than all of the stored data is on one physical medium.
Having considered the full record developed during trial, we are persuaded
by Petitioner’s contentions and evidence, summarized above, and we
determine that Petitioner has proven by a preponderance of the evidence that
claim 5 of the ’642 patent is unpatentable under 35 U.S.C. § 103(a) as
obvious over the teachings of Carter.
7. Dependent Claim 6
Claim 6 recites, “A method as defined in claim 3 wherein said first
physical non-volatile storage medium and said second physical non-volatile
storage medium form part of different computer systems in communication
one with the other via a communication network.” Petitioner contends
Carter discloses that “the physical storage that forms Carter’s globally
addressable storage is comprised of physical media from different ‘network
nodes,’ which are separate computers that communicate via a network.”
Pet. 46 (citing Ex. 1005, 3:1–5, 3:9–16, Fig. 6; Ex. 1002 ¶ 100). Petitioner
also notes that, although claim 6 recites that it depends from claim 3, the
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terms “said first physical non-volatile storage medium” and “said second
physical non-volatile storage medium” are introduced in claim 5 and have no
antecedent basis in claim 3. Pet. 46. Petitioner argues that the subject
matter of claim 6 would have been obvious whether claim 6 is considered to
depend from claim 3 or claim 5. Pet. 46–48.
Patent Owner does not separately address the additional limitations
recited in claim 6 and does not respond to the antecedent basis issues raised
by Petitioner. See generally PO Resp.
Notwithstanding the antecedent basis issues identified by Petitioner,
we address claim 6 as dependent from claim 3 based on the express language
of claim 6. As discussed above in § II.D.4 for claim 3, Carter explains that
its “virtual space spans each storage device (e.g., RAM and hard disk)
connected to the network” and that “all data stored on the network can be
stored within the virtual space and the actual physical location of the data
can be in any of the storage devices connected to the network.” Ex. 1005,
3:11–16. Thus, we agree that Carter discloses physical storage media that
are in different computer systems communicating over a network. Having
considered the full record developed during trial, we are persuaded by
Petitioner’s contentions and evidence, summarized above, and we determine
that Petitioner has proven by a preponderance of the evidence that claim 6 of
the ’642 patent is unpatentable under 35 U.S.C. § 103(a) as obvious over the
teachings of Carter.
8. Independent Claim 16
Independent claim 16 is directed to a “method of storing data in a
virtual file-based non-volatile storage comprising” steps that are similar to
those recited in claim 1 with one additional wherein clause, which recites
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that “the physical non-volatile storage media form parts of different
computer systems in communication with each other via a communication
network.” This additional language is similar to language in claim 6,
discussed above in § II.D.7, reciting that first and second physical non-
volatile storage media “form part of different computer systems in
communication one with the other via a communication network.” Similar
to its argument for claim 6, Petitioner argues that “the physical storage that
forms Carter’s globally addressable storage is comprised of physical media
from different ‘network nodes’ that communicate with each other across a
network.” Pet. 50 (citing Ex. 1005, 3:1–5, 3:9–16, 6:37–51, Figs. 1, 6;
Ex. 1002 ¶ 105). For the reasons explained above in § II.D.7 for claim 6, we
agree that Carter teaches this additional subject matter recited in claim 16.
Patent Owner does not raise additional arguments concerning
claim 16 but, rather, argues that Petitioner’s contentions fail for the reasons
addressed above with respect to claim 1. See generally PO Resp.
Having considered the full record developed during trial, we are
persuaded by Petitioner’s contentions and evidence for the reasons given
above in this section and in § II.D.2 for claim 1, and we determine that
Petitioner has proven by a preponderance of the evidence that independent
claim 16 of the ’642 patent is unpatentable under 35 U.S.C. § 103(a) as
obvious over the teachings of Carter.
E. Obviousness over the Combination of Carter and Cannon
(Claims 7, 10, 17, 20)
Petitioner asserts claims 7, 10, 17, and 20 of the ’642 patent are
unpatentable under 35 U.S.C. § 103(a) as obvious over the combined
teachings of Carter and Cannon. Pet. 11, 59–69.
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1. Cannon
Cannon relates to file storage and discloses various file management
techniques, including data migration and archiving. Ex. 1008, 1:9–18, 5:35–
37, 6:24–29, 17:50–18:9.
2. Claims 7 and 17
Claim 7 recites the following:
The method as defined in claim 1 comprising the steps of:
monitoring access to stored data;
determining from the monitored access a location within
the virtual file-based non-volatile storage medium for the stored
data;
moving the stored data to the determined location; and
updating the index data to reflect the new storage location
of the stored data being the determined location.
Ex. 1001, 8:53–62 (emphasis added). Claim 17 depends from claim 16 and
recites everything in claim 7 except for the phrase “being the determined
location,” which is italicized above.
Petitioner first argues that Carter alone teaches this subject matter.
Pet. 60–62. In particular, Petitioner relies on the following disclosure in
Carter:
Further the system can include a migration controller for
selectively moving portions of the addressable memory space
between the local persistent memory devices of the plural
computers. The migration controller can determine and respond
to data access patterns, resource demands or any other suitable
criteria or heuristic. Accordingly, the migration controller can
balance the loads on the network, and move data to nodes from
which it is commonly accessed.
Ex. 1005, 16:32–40, cited in Pet. 60. Petitioner argues that responding to
data access patterns by moving data to nodes where it is commonly accessed
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teaches the “monitoring,” determining,” and “moving” steps of claims 7
and 17. Pet. 60–61. Petitioner argues that Carter discloses that the index
information is updated when files are moved so that the system can locate
data. Pet. 61 (citing Ex. 1005, 17:65–18:13; Ex. 1002 ¶ 133).
Patent Owner argues that Carter’s migration controller deals with
volatile storage, not “non-volatile” storage as recited in the claims.
PO Resp. 31 (quoting Ex. 1005, 17:21–24) (citing Ex. 1005, 16:32–40). The
passage of Carter quoted by Patent Owner states that “[t]he systems can
include additional elements including a . . . migration controller for moving
portions of addressable memory space between the local volatile memory
devices of the plural computers.” Ex. 1005, 17:12–24. Although this
passage discusses a migration controller for volatile memory, Petitioner
relies on Carter’s “migration controller for selectively moving portions of
the addressable memory space between the local persistent memory devices
of the plural computers.” Ex. 1005, 16:32–35 (emphasis added), quoted in
Pet. 60. As discussed above in § II.D.2.a.ii, Carter’s disclosure of data
storage on persistent memory devices such as hard disks teaches a “non-
volatile storage medium.” Thus, Patent Owner’s argument is unavailing
because it is directed to a different migration controller.
Patent Owner also argues that Carter’s migration controller for
network load balancing “moves data to a node where it is commonly
accessed,” which, according to Patent Owner, “does not qualify as
‘determining from the monitored access a location within the virtual
file-based non-volatile storage medium.’” PO Resp. 31 (citing Ex. 2001
¶ 64). Neither Patent Owner nor Dr. Melendez, who testifies similarly,
explains this assertion, and we disagree with it because Carter discloses that
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its “migration controller can determine and respond to data access patterns,
resource demands or any other suitable criteria or heuristic” and “move data
to nodes from which it is commonly accessed.” Ex. 1005, 16:35–40, cited in
Pet. 60. Thus, Carter discloses monitoring access to data and determining
from that monitored access a new location to which to move the data, such
as nodes from which the data are commonly accessed.
Based on Petitioner’s persuasive evidence and argument and in view
of the foregoing discussion, we are persuaded, and we find, that Carter’s
disclosures relating to its persistent storage migration controller teach the
subject matter of claims 7 and 17. See Ex. 1005, 16:32–40.
Petitioner notes that its arguments that Carter teaches the subject
matter of claim 7 are “based on the understanding that claim 7 is not limited
to migrating data to archive it,” and Petitioner further argues that “if one
were to narrowly read claim 7 to require archiving, Cannon provides this
teaching and it would have been obvious to incorporate it into Carter’s
system.” Pet. 62.
Claims 7 and 17 do not recite archiving, and we do not interpret
claims 7 and 17 as requiring archiving. Nonetheless, we are persuaded by
Petitioner’s contentions based on the combination of Cannon with Carter.
See Pet. 62–66. In particular, Petitioner relies on Cannon’s disclosure of
“automatic data migration.” Pet. 62–64 (citing Ex. 1008, 5:35–37, 6:25–26,
7:4–7, 7:20–21, 17:23–29, 17:50–18:7, Fig. 4; Ex. 1002 ¶¶ 135–137).
Cannon discloses that “a migration operation” may “start[] automatically in
response to the existence of a predetermined condition,” which “may be
related to the data’s recency of use, frequency of use, age, etc.” Ex. 1008,
17:58–62. Cannon discloses that, in response to the condition, the files are
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copied to “target locations,” which “may be selected under many different
techniques, considering factors such as the size of the data, availability of
potential target locations, etc.” Ex. 1008, 17:67–18:2. Cannon further
discloses “updat[ing] the database . . . to reflect the new locations of the
managed files.” Ex. 1008, 18:3–4.
Patent Owner argues that Cannon’s data migration disclosure is
directed to archiving, which, according to Patent Owner, “only is performed
when there is ‘no access’ and the new/determined location is predetermined
rather than determined as a function of the monitored access.” PO Resp. 32
(citing Ex. 2001 ¶ 65). This description of archiving, however, is Patent
Owner’s characterization of how archiving operates in the ’642 patent. For
example, Patent Owner argues that “[i]n the archiving example of the ’642
Patent, the location for archiving is predetermined independent of
monitoring access to stored data.” PO Resp. 30 (citing Ex. 2001 ¶ 63).
Regardless of whether the ’642 patent performs archiving in a certain way in
the Specification, the relevant inquiry is whether Cannon teaches the
claimed subject matter. Petitioner relies on Cannon’s disclosure of selecting
target locations for the data. Pet. 64 (citing Ex. 1008, 17:64–18:2; Ex. 1002
¶ 137). Patent Owner’s argument that “Cannon’s storage archive hierarchy
locations are predetermined” (PO Sur-reply 22) ignores Cannon’s disclosure
of selecting target locations for the data. Ex. 1008, 17:67–18:2.
We are persuaded, and we find, that the combination of Carter and
Cannon teaches the subject matter recited in claims 7 and 17. As discussed
above, we find Carter alone teaches the subject matter of claims 7 and 17.
We likewise are persuaded, and we find, that Carter’s disclosures, discussed
above, in combination with Cannon’s disclosure of migrating data in
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response to conditions such as frequency of use and recency of use of the
data, teach monitoring access to the data and determining where to move the
data from that monitoring. Ex. 1008, 17:58–18:2. We also find that
Cannon’s disclosure of “updat[ing] the database . . . to reflect the new
locations of the managed files” (Ex. 1008, 18:3–4) teaches updating the
index data, as recited in claims 7 and 17. We also are persuaded by
Petitioner’s contention that a person of ordinary skill in the art would have
been motivated to combine the teachings of Carter and Cannon to “allow[]
less-frequently used data to be moved to slower, cheaper, or less-utilized
storage areas, as taught in Cannon,” which “would result in optimized
performance for the more frequently used data, which could reside on faster
or more expensive media because the less used data would all migrate to the
slower or cheaper media.” Pet. 64–65 (citing Ex. 1002 ¶¶ 134–138). During
the trial, Patent Owner did not challenge Petitioner’s reasons to combine
Carter and Cannon. See generally PO Resp.
Having considered the full record developed during trial, we are
persuaded by Petitioner’s contentions and evidence, and we determine that
Petitioner has proven by a preponderance of the evidence that dependent
claims 7 and 17 of the ’642 patent are unpatentable under 35 U.S.C. § 103(a)
as obvious over the combined teachings of Carter and Cannon.
3. Claims 10 and 20
Claim 10 recites the following:
The method as defined in claim 1 comprising the steps of:
monitoring access to stored data;
archiving stored data that is not accessed for more than a
predetermined amount of time.
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Claim 20 depends from claim 16 but otherwise adds the same limitations as
recited in dependent claim 10.
Petitioner argues that the combination of Carter and Cannon teaches
“monitoring access to stored data” for the same reasons discussed with
respect to the same limitation of claims 7 and 17 (see Pet. 66), and we agree
for the reasons discussed above in § II.E.2.
Petitioner argues that Cannon’s disclosure of moving data downward
in the file hierarchy based on the data’s recency of use teaches “archiving
stored data that is not accessed for more than a predetermined amount of
time.” Pet. 66–67 (citing Ex. 1008, 7:39–43, 17:20–21, 17:60–62, 18:54–
60; Ex. 1002 ¶¶ 134–141). Referring to Figure 7, Cannon discloses that “a
storage pool backup operation 700 is performed in response to various
conditions (step 704).” Ex. 1008, 18:54–55. As discussed above in § II.E.2,
Cannon discloses that “predetermined condition[s]” in step 704 of Figure 7
“may be related to the data’s recency of use, frequency of use, age, etc.”
Ex. 1008, 17:58–62. Petitioner refers to its reasons to combine the teachings
of Carter and Cannon discussed with respect to claims 7 and 17. Pet. 67.
Patent Owner does not dispute Petitioner’s contentions with respect to
claims 10 and 20 and acknowledges that Cannon teaches archiving. See
PO Resp. 32 (“[T]he archiving discussed in Cannon may disclose the
archiving limitations of dependent claims 10 and 20 but cannot disclose the
localized storage limitations of dependent claims 7 and 17 of the ’642
Patent.”).
Having considered the full record developed during trial, we are
persuaded by Petitioner’s contentions and evidence, discussed above in this
section and discussed above in § II.E.2, and we determine that Petitioner has
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proven by a preponderance of the evidence that dependent claims 10 and 20
of the ’642 patent are unpatentable under 35 U.S.C. § 103(a) as obvious over
the combined teachings of Carter and Cannon.
F. Obviousness over the Combination of Carter and Mutalik
(Claims 3–5)
Petitioner asserts claims 3–5 of the ’642 patent are unpatentable under
35 U.S.C. § 103(a) as obvious over the combined teachings of Carter and
Mutalik. Pet. 11, 54–59. Petitioner argues that “under this alternative
ground, instead of Carter’s virtual-to-physical mappings providing the
claimed ‘corresponding locations within said physical non-volatile storage
medium for the stored data,’ Carter’s pages would be modified to directly
map virtual locations to physical locations, as taught in Mutalik.” Pet. 55
(citing Ex. 1002 ¶ 118).
Petitioner argues that Mutalik discloses storing a file in multiple disks
that make up a logical volume. Pet. 55 (citing Ex. 1007, 5:66–6:4). For
example, Mutalik discloses that a file is stored in a “logical volume” and that
a “file may include several portions which are distributed among one or
more disks and one or more series of blocks, which are referred to herein as
disk ‘extents’ on each disk.” Ex. 1007, 5:66–6:5. Petitioner also relies on
Mutalik’s disclosure that “[e]ach extent comprising [a file] is identified by
an identifier or ‘extent descriptor,’ identifying the disk storage device 16(s)
on which it is stored, the first block in the series of blocks comprising the
extent and the number of successive blocks comprising the extent.”
Ex. 1007, 6:52–56, quoted in Pet. 55. Petitioner argues that “modify[ing]
Carter’s mapping to pages in the virtual media to a mapping to extents in the
physical media like in Mutalik” would have allowed the removal of one
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layer of Carter’s index information and provided for a more direct mapping
to the data’s physical location, which, according to Petitioner, “would have
enhanced the functionality of Carter’s system by avoiding storing,
maintaining, and consulting a second mapping from the virtual location to
the physical location.” Pet. 56–57 (citing Ex. 1002 ¶ 122).
Patent Owner’s argument as to this ground is based on its argument as
to the challenge to claim 3 based on Carter alone that claim 3 eliminates the
need for a lookup table. See PO Resp. 32–35. Patent Owner argues that
Petitioner’s proposed modification “creates the very lookup table to translate
virtual addresses that the ’642 Patent aims to eliminate within the
embodiment of dependent claim 3.” PO Resp. 35. As discussed above in
§ II.D.4, claim 3 does not prohibit the use of a lookup table, and, therefore,
Patent Owner’s argument is not commensurate with the scope of the claim.
Patent Owner also argues that Mutalik does not disclose a “file-based
system[].” PO Sur-reply 23. First, as discussed above in § II.D.2.a.i, we
find Carter discloses a file-based system. Therefore, we need not rely on
Mutalik to disclose a file-based system. Second, we find Mutalik teaches a
file-based system because it discloses that “[f]iles are established and
managed by a file system manager portion . . . of the operating system
controlling host computer.” Ex. 1007, 5:66–6:2.
As discussed above in §§ II.D.4–6, we are persuaded that the subject
matter of claims 3–5 would have been obvious based on the teachings of
Carter alone. We also are persuaded by Petitioner’s contentions,
summarized above, that the combination of Carter and Mutalik teaches the
claimed subject matter and that a person of ordinary skill in the art would
have been motivated to combine the teachings of Carter and Mutalik in the
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manner asserted. Having considered the full record developed during trial,
we are persuaded by Petitioner’s contentions and evidence, discussed above
in this section and in §§ II.D.4–6, and we determine that Petitioner has
proven by a preponderance of the evidence that claims 3–5 of the ’642
patent are unpatentable under 35 U.S.C. § 103(a) as obvious over the
combined teachings of Carter and Mutalik.
G. Obviousness over the Combinations of Carter and Frey
and Carter, Mutalik, and Frey
(Claim 5)
Petitioner asserts claim 5 of the ’642 patent is unpatentable under
35 U.S.C. § 103(a) as obvious over the combinations of Carter and Frey and
Carter, Mutalik, and Frey. Pet. 11, 51–54, 58–59. As discussed above in
§ II.D.6, Petitioner contends, and we are persuaded, that the subject matter
of claim 5 would have been obvious based on the teachings of Carter alone.
In this ground, Petitioner additionally asserts that the subject matter of
claim 5 would have been obvious based on Carter in combination with
Frey’s disclosure of striped file systems in which data can be distributed
across multiple nodes in a network. Pet. 51–54 (citing Ex. 1006, 1:50–56,
2:52–54, 3:1–5, 3:10–16, 5:43–52, 5:62–6:11, 6:24–31, 9:51–54; Ex. 1002
¶¶ 43, 107–115). Frey discloses the following:
a first block of records in a file is placed in a data node 42 that is
determined by data for that file in the table entry 49 and “starts”
the file. The next file data block being placed in the next node 42
as also indicated by that table entry 49, etc. In one example of a
data block distribution method, consecutive data blocks are
placed on consecutively numbered nodes 42 until the last node
of pre-specified span is reached. This distribution method is
called “striping” . . . .
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Ex. 1006, 5:62–6:8. We find that Frey’s disclosure of striping teaches “a
portion of the stored data less than the whole is stored on a first physical
non-volatile storage medium and another portion of the stored data less than
the whole is stored on a second physical non-volatile storage medium,” as
recited in claim 5.
Petitioner argues that Frey identifies benefits of striping and that “[a]
person of ordinary skill in the art would have . . . been motivated to modify
Carter’s system to implement striping techniques disclosed by Frey based
on Frey’s own descriptions of the benefits of striping in general and its form
of striping in particular.” Pet. 52, 54 (citing Ex. 1006, 1:50–56, 2:52–54;
Ex. 1002 ¶¶ 109, 113–114). For example, Frey discloses the following:
A striped network file system with multiple servers offers
the potential to achieve very high performance using multiple
collections of inexpensive computers and disks. Also,
distributing file data across a plurality of servers and storage
devices provides the potential for improved data recovery in the
event of a failure of any server or storage device if redundancy
is added to critical data.
Ex. 1006, 1:50–56. We are persuaded by Petitioner’s contentions that a
person of ordinary skill in the art would have been motivated to combine
Frey’s striping teachings with the teachings of Carter to achieve the benefits
identified of striping identified in Frey, such as improved fault tolerance and
high performance using inexpensive disks. See Ex. 1006, 1:50–56; Ex. 1002
¶ 114. Petitioner contends, and we are persuaded, that a person of ordinary
skill in the art would have been motivated to combine the teachings of Frey
with the teachings of Carter and Mutalik for the same reasons. Pet. 58–59.
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During the trial, Patent Owner did not challenge Petitioner’s
assertions as to Frey or Petitioner’s reasons to combine Frey with Carter and
Carter and Mutalik. See generally PO Resp.
Having considered the full record developed during trial, we are
persuaded by Petitioner’s contentions and evidence, discussed above, and we
determine that Petitioner has proven by a preponderance of the evidence that
claim 5 of the ’642 patent is unpatentable under 35 U.S.C. § 103(a) as
obvious over the combined teachings of Carter and Frey and over the
combined teachings of Carter, Mutalik, and Frey.

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III. CONCLUSION11
For the reasons discussed above, we determine Petitioner has proven,
by a preponderance of the evidence, that the challenged claims are
unpatentable, as summarized in the following table:

11 Should Patent Owner wish to pursue amendment of the challenged claims
in a reissue or reexamination proceeding subsequent to the issuance of this
decision, we draw Patent Owner’s attention to the April 2019 Notice
Regarding Options for Amendments by Patent Owner Through Reissue or
Reexamination During a Pending AIA Trial Proceeding. See 84 Fed. Reg.
16654 (Apr. 22, 2019). If Patent Owner chooses to file a reissue application
or a request for reexamination of the challenged patent, we remind Patent
Owner of its continuing obligation to notify the Board of any such related
matters in updated mandatory notices. See 37 C.F.R. § 42.8(a)(3), (b)(2).
Claims 35 U.S.C. § Reference(s)/Basis
Claims
Shown
Unpatentable
Claims
Not Shown
Unpatentable
1–6, 16 103(a) Carter 1–6, 16
5 103(a) Carter, Frey 5
3–5 103(a) Carter, Mutalik 3–5
5 103(a) Carter, Frey,
Mutalik
5
7, 10, 17,
20
103(a) Carter, Cannon 7, 10, 17, 20
Overall
Outcome
1–7, 10, 16,
17, 20

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IV. ORDER
Accordingly, it is:
ORDERED that claims 1–7, 10, 16, 17, and 20 of the ’642 patent have
been shown to be unpatentable; and
FURTHERED ORDERED that, because this is a Final Written
Decision, 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.
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PETITIONER:
Erika Arner
Erika.arner@finnegan.com
Joshua Goldberg
Joshua.goldberg@finnegan.com
Jason Stach
Jason.stach@finnegan.com
Cory Bell
Cory.bell@finnegan.com
Rachel Emsley
Rachel.emsley@finnegan.com
Andrew Devkar
Andrew.devkar@morganlewis.com
Diek Van Nort
dvannort@mofo.com

PATENT OWNER:
Gregory S. Donahue
gdonahue@dpelaw.com
Andrew DiNovo
adinovo@dpelaw.com