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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_______________________________
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`AVAYA INC., DELL INC., SONY CORPORATION OF AMERICA,
`and HEWLETT-PACKARD CO.
`Petitioners
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`v.
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`NETWORK-1 SECURITY SOLUTIONS, INC.
`Patent Owner
`____________________
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`CASE IPR2013-00071
`U.S. Patent No. 6,218,930
`____________________
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`Before the Honorable Joni Y. Chang, Justin T. Arbes, and Glenn J. Perry
`____________________
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`REPLY TO PATENT OWNER’S RESPONSE
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`TABLE OF CONTENTS
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`IPR2013-0071
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`I.
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`Introduction ...................................................................................................... 1
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`II. Matsuno's Low Voltage Power (-48 V) Provides "Low Level" Current......... 1
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`III. Matsuno Discloses Sensing A Voltage Level On The Data Signaling Pair .... 5
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`A.
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`The ’930 Patent Is Not Limited To Common Mode Voltages .............. 5
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`B. Matsuno Discloses The ‘Sensing’ Step Of Claim 6 .............................. 7
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`IV. Matsuno Discloses A Data Network ............................................................... 8
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`V. Matsuno Anticipates Claim 9 .......................................................................... 9
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`VI. Claims 6 And 9 Are Obvious Over De Nicolo In View Of Matsuno ...........12
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`A.
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`The Prior Art Does Not Teach Away From The Challenged
`Claims ..................................................................................................12
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`B. Matsuno Is Analogous Art ..................................................................13
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`C.
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`The Secondary Factors Fall Short .......................................................14
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`VII. CONCLUSION ..............................................................................................15
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`I.
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`Introduction
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`In this forum patentability is judged against the broadest reasonable
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`interpretation (BRI) standard. Network-1 fails to apply that standard here.
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`First, Network-1 seeks to tack on an additional limitation to the Board’s
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`construction of “low level current” to require that an access device will not operate
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`“at all reasonable data signaling pair lengths.”
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`Second, Network-1 rewrites the Board’s construction of “on the data
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`signaling pair” by ascribing a technical meaning to the simple preposition “on” that
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`requires strained expert testimony and hypothetical circuits for justification.
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`Third, Network-1 attempts to argue that an Integrated Services Digital
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`Network (ISDN), which digitally transmits data, is not a “data network.”
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`None of these attempts by Network-1 comply with the BRI standard, nor do
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`they patentably distinguish over the instituted Grounds, as discussed below.
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`II. Matsuno's Low Voltage Power (-48 V) Provides "Low Level" Current
`Network-1 improperly narrows the Board’s interpretation of “low level
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`current” by adding “at all reasonable data signaling pair lengths.” Armed with this
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`improper construction, it then elaborately argues, with flawed assumptions, that
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`under certain line length conditions and access device types, that Matsuno’s ISDN
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`network could supply sufficient current to operate a device. Network-1’s
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`arguments for distinguishing Matsuno fail for three separate reasons.
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`First, there is no intrinsic support for “pair length” limitations. The
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`’930 specification never mentions data signaling pair lengths, and it is silent about
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`supplying operating power based on line length. Nor are there any such references
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`in the prosecution history. That should end the matter.
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`Second, Network-1’s assumptions are fatally flawed. Dr. Knox, who is
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`admittedly not an expert in the ISDN field, relies on a series of misleading and
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`self-serving assumptions to produce a scenario where operational power could be
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`applied to some devices. See Knox Depo. (AV-1028) (“Knox Dep.”) at 200:16-21.
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`•
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`Dr. Knox assumes parameters that deviate from the ISDN standard—a
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`line resistance less than 20% of the actual IEEE standard ISDN design line
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`resistance (247 ohms vs. 1300 ohms), and a subscriber service area representing
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`only about 7.5% of the ISDN mandated actual subscriber area (4945 feet vs. 18000
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`feet). See Decl. of Dr. Zimmerman (AV-1041) (“2nd Zim. Dec.”) at ¶¶ 18 – 23.
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`•
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`Dr. Knox’s assumed power requirements are based on the improper
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`selection of a ‘representative’ low power drawing “Class 1” Cisco Unified IP
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`Phone 6945 (“Cisco Phone”), which was not introduced until 15 years after
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`Matsuno’s filing date. Even then, he assumed it would draw only 17% of its
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`capable draw power. See id. at ¶¶ 24-25
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`• When asked to assume what would happen when slightly higher
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`power Class 2 access devices were instead used with Matsuno’s ISDN network,
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`Dr. Knox no longer affirmatively said they could operate with Matsuno’s low
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`voltage supply--just that such devices would not be guaranteed to operate. Dr.
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`Zimmerman, however, concluded none of Cisco’s Class 2 (or Class 3) devices
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`would be operable. See Knox. Dep. at 54:12-24; see also 2nd Zim. Decl. at ¶¶ 27-
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`30. Given that power consumption of networking equipment (assuming similar
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`functionality) likely decreased in the 15 years between Matsuno and the Cisco
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`Phone’s introduction, Dr. Knox’s power requirement assumptions are dramatically
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`understated. See 2nd Zim. Decl. at ¶ 31; see also Knox. Dep. at 207:2-7.
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`Third, Matsuno discloses a low voltage power supply that is insufficient
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`to operate its access devices, thus meeting the Board’s construction for low
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`level current. Network-1 argues that the low voltage power supply of Matsuno
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`provides a current that is sufficient to operate at least some access devices at
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`certain data signaling pair lengths. As the Board noted, however, if Matsuno’s low
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`voltage supply V2 (-48 V) is supposedly sufficient, by itself, to operate its access
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`device, then presumably there would be no need to switch to the high voltage
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`supply V1 (-120 V) when local power is unavailable. See Dell Decision at 15.
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`In response, Network-1 is forced to further posit that Matsuno is providing
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`the high voltage power for the purpose of powering devices that require higher
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`power or for devices further away. See Knox. Dep. at 214:16-215:4. Matsuno
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`makes no such statements, however, nor can any such inference be drawn from its
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`teachings. In fact, Matsuno teaches quite the opposite: “[s]witching to the
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`aforementioned station power supply occurs with shutdown of the commercial AC
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`power supply, and power sufficient to allow minimal communication on the digital
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`subscriber terminal 103 is thus supplied.” Matsuno (AV-1004), ¶ [0004] (emphasis
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`added). If only minimal communication is provided by the high voltage source, it
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`follows that less than operational current must be provided by the low voltage
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`power source (the low voltage being 2 ½ times smaller than the high voltage used
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`to allow minimal communication). See 2nd Zim. Decl. at ¶¶ 36-37.
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`Network-1 further attempts to infer meaning from Matsuno’s mentioning
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`that a local AC power source 111 may, for example, use a voltage of 40 V to
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`provide local power to the subscriber terminal. See Response (Paper 42) at 8; see
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`also Matsuno (AV-1004), ¶ [0004]. But a local power source providing 40 V says
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`nothing about the amount of current that is required to operate the equipment. In
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`prior litigations, for instance, Dr. Knox himself has taken the position that a higher
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`voltage power supply (48 V) used by Power-Over-Ethernet devices is what
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`generates the recited “low level current.” See AV-1031, pp. 46 and 64.
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`In addition to Matsuno’s express teachings of providing only minimal
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`communication using the high voltage power supply (-120 V), ignored by
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`Network-1 and Dr. Knox is the substantial loss of potential that occurs when
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`current flows from the power supply circuit. See Matsuno (AV-1004), ¶¶[0020]
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`and [0027]. Factually, only on the order of about 8 V would actually be available
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`to the NT1/DTE —which one skilled in the art knows is well below any voltage
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`level necessary to operate the NT1/DTE, and certainly well below the voltage Dr.
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`Knox assumes would be available. See 2nd Zim. Decl. at ¶¶ 32-35. Thus, a skilled
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`artisan understands that the current generated by Matsuno’s low voltage V2 (-48 V)
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`is insufficient to operate Matsuno’s NT1/DTE. See 2nd Zim. Decl. at ¶¶ 32-37.
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`III. Matsuno Discloses Sensing A Voltage Level On The Data Signaling Pair
`The ’930 Patent Is Not Limited To Common Mode Voltages
`A.
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`Network-1 again seeks to interpret the plain word “on” contrary to the
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`Board’s construction under the BRI standard, and with argument already expressly
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`rejected by the Board. Network-1’s intent is to require that the claimed voltage be
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`a “common mode” voltage, i.e., the same voltage exists on both wires at all times.
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`While this litigation-inspired narrowing has the goal of distinguishing all ISDN
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`prior art, it has no intrinsic support—with “common mode” neither being claimed
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`nor even discussed in the ’930 patent. Dell Decision at 11-12.
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`Nonetheless, Network-1 and Dr. Knox go to great lengths in technically
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`dissecting words such as “on,” “across” and “between” so as to argue that sensing
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`a voltage level “on” a pair requires use of “common mode” current delivery.
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`Response at 14-32. Under BRI, however, sensing “a voltage level on” something
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`can include anywhere on it—it does not require a same voltage level on both wires
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`of a pair, consistent with the Board’s construction. Dell Decision at 12.1 In both
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`differential mode and common mode, a voltage level is sensed somewhere on the
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`pair. See Zim. Dep. (N1-2016) at 55:11-24. Dr. Knox himself has previously
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`referred to the claimed “voltage level” as being “across the data signaling pair”:
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`Expert Rebuttal Report of James Knox, February 26, 2007 (AV-1044) at 137.
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`Network-1’s attempted narrowing to common mode voltages fails for at
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`least three reasons. First, the specification is devoid of any discussion of the
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`concept of “common mode,” and there is no file history evidence to suggest that
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`such a limitation should be read into the claims or that the inventors were acting as
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`their own lexicographers. Second, Claim 6 recites a single data signaling pair (i.e.,
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`two wires), yet there is no teaching as to how one of ordinary skill in the art could
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`implement a common mode voltage using only a single data signaling pair. See
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`2nd Zim. Decl. at ¶¶ 43-48. Indeed, with the disclosed sensing being on the
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`“return path,” as noted by the Board, Dr. Knox’s attempts to extrinsically
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`supplement the ’930 patent are ineffective and, in any event, run afoul of Claim 6,
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`1 Avaya agrees with the Board’s construction, except for the apparent error
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`of omitting the “voltage level” as being what is sensed.
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`as confirmed by Dr. Zimmerman. See id.; see also Dell Decision at 11-12. And,
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`Third, there is simply nothing special about common mode voltage, or its
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`applicability to any invention in the ’930 patent. Dr. Knox agrees nothing is
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`inventive about measuring a voltage in common or differential mode. See Knox
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`Dep. at 92:11-16; see also 2nd Zim. Decl. at ¶¶ 41-42.
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`B. Matsuno Discloses The ‘Sensing’ Step Of Claim 6
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`Network-1 does not dispute that Matsuno discloses sensing a voltage level
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`on a wire of a data signaling pair in
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`response to a current – only that the
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`Sense
`Point on
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`voltage is not a common mode voltage.
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`See Response at 26. Matsuno’s Figure
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`5, for example, measures a voltage
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`level at a point on each wire of the data
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`signaling pair, whereby the voltage
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`level on one wire (TIP) is measured
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`relative to ground (by voltage detection
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`part 31b) and the voltage level on the
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`Sense
`Point on
`RING wire
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`other wire (RING) is measured relative to ground or a known DC voltage (by
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`voltage detection part 31a). See 2nd Zim. Decl. at ¶¶ 39-40. Either sense point
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`would be sensing a voltage level at a point on the pair of wires used to transmit
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`data. See id. Therefore, Matsuno fully discloses the ‘sensing’ step of claim 6.
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`IV. Matsuno Discloses A Data Network
`Network-1 takes the position that Matsuno fails to disclose a “data network.”
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`This position is based on (i) mischaracterizing the ’930 patent’s discussion of
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`telecommunications equipment, and (ii) improperly reading that
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`mischaracterization into the claims. With respect to (i), the ’930 patent
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`acknowledges that convergence between voice and data networks was already well
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`underway, and even uses the example of a “phone” as a type of access device for
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`which it is desirable to provide remote powering. See ’930 patent (AV-1001) at
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`1:33-40. This disclosure contradicts Network-1’s position that the ’930 patent
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`seeks to distance itself from the field of telecommunications.
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`With respect to (ii), Network-1’s expert, Dr. Knox, has previously taken the
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`position that an ISDN prior art reference discloses a “data network” as claimed.
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`See Expert Report of Dr. James M. Knox, April 19, 2010 (AV-1030), page 141;
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`see also 2nd Zim. Decl. at ¶¶ 11-13. And, in support of Network-1’s infringement
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`position, Dr. Knox used the broad definition, drawn ironically from a
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`telecommunications dictionary, that a “data network is a network in which data is
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`transmitted and received within the network.” See Expert Report of Dr. James M.
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`Knox, March 14, 2010 (AV-1031), page 14; see also 2nd Zim. Decl. at ¶ 14.
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`Finally, the ISDN reference book relied on by Dr. Knox describes ISDN
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`communications as encompassing communications over various types of networks,
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`including packet-switch data networks. See id. at ¶¶ 9-10; see also Knox Dep. at
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`64:20 – 65:2. Matsuno’s ISDN network, therefore, certainly qualifies as a “data
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`network,” particularly under the BRI standard See Zim. Decl. at ¶¶ 5-14.
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`V. Matsuno Anticipates Claim 9
`Network-1 provides four reasons why Matsuno allegedly fails to anticipate
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`Claim 9. See Response at 33 – 44. None are correct.
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`Reason 1 (Response at 33-40). Network-1 argues that method Claim 9
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`requires an affirmative act of “removing an access device.” This argument
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`incorrectly presupposes both a step of removing the access device, and that such
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`removal be physically performed.
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`On this point, the claim language itself is dispositive. Claim 9 merely
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`assumes that “voltage level drops” may indicate removal—electrical or physical—
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`of the access device. The “comma” separating the acts from what they are to mean
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`confirms the proper construction. To read the actual claim language otherwise, as
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`Network-1 proposes, is nonsensical.
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`Matsuno similarly need not expressly disclose the affirmative act of device
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`removal. Both experts agree that not every voltage drop on the data signaling pair
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`would have to indicate removal of the device. Knox Dep. at 221:16-20; see also
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`Zim. Decl. at ¶52. The only proper way to interpret Claim 9, and what is required
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`to be disclosed in Matsuno to anticipate Claim 9, is that removal of the access
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`device, if it were to ever occur, would result in a voltage decrease. See id. That
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`correlation is exactly what Matsuno discloses, as detailed below (see Reason 3).
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`Network-1 further incorrectly assumes that the removal indication of Claim
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`9 would require a physical unplugging-type removal of the access device. Rather,
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`“removal”—under the BRI standard—may include electrical removal from the
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`circuit. See Zim. Decl. at ¶¶53 – 58. The power sourcing circuitry of the ’930
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`patent itself is not able to distinguish between electrical and physical removal, and
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`as such a skilled artisan would naturally assume that Claim 9 should be read to
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`include both types of removal. See id. at ¶ 56. Moreover, in the case of either
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`electrical or physical removal, the same desire to decrease the amount of power
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`being applied to the device would exist, and therefore there is no objective reason
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`to distinguish between the two types of removal. See id. at ¶ 57-58.
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`Matsuno does disclose removal of the access device from the powering
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`circuitry while power is being supplied, which occurs, for example when breakers
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`8 open in response to local power being restored. See Zim. Dep. (N1-2015) at
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`118:3-9; see also Zim. Decl. at ¶¶ 54-55.
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`Reason 2 (Response at 40). This argument is essentially a rehash of
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`Network-1’s “on a data signaling pair” argument, which was addressed above.
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`Reason 3 (Response at 40-43). Network-1 argues that Matsuno does not
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`decrease power if voltage level drops per claim 9 by referencing Matsuno’s fourth
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`embodiment shown in Figure 6. Network-1 ignores Dr. Zimmerman’s direct
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`testimony and cross examination testimony regarding Matsuno’s Figure 5
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`embodiment where the voltage decreases in response to device removal. The
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`description of Figure 5 makes clear that, when local power is restarted, the contact
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`breakers 8 open (i.e., NT1/DTE are electrically removed from the circuit) causing
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`current flow to stop, wherein the continually-sensed voltage “becomes zero or a
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`value close to zero.” See Matsuno (AV-1004), ¶ [0036]; see also Zim. Decl. at ¶¶
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`50-51. Moreover, Dr. Knox confirmed that the sensed voltage would decrease if
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`the NT1 were removed. See Knox. Dep. at 103:8-12.
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`Matsuno discloses numerous circuits for sensing voltage on the data
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`signaling pair. In Figure 5, the voltage decreases in response to removal of an
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`access device (per claim 9), while in other embodiments the circuit is designed
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`such that voltage increases (as noted by Network-1). This merely evidences the
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`fact that there is nothing inventive about the direction of the voltage change, or any
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`particular voltage sensing circuitry.
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`Reason 4 (Response at 43-44). This argument mirrors Reason 3, and
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`similarly fails to consider that, in at least the embodiment of Figure 5, Matsuno’s
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`sensed voltage decreases in response to the NT1/DTE being electrically removed.
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`VI. Claims 6 And 9 Are Obvious Over De Nicolo In View Of Matsuno
`Network-1 attacks the combination of De Nicolo and Matsuno (Ground 2)
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`based entirely on the same deficiencies alleged with respect to Matsuno alone
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`(Ground 1). De Nicolo, however, discloses an Ethernet data network, which moots
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`Network-1’s “data network” argument.
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`A.
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`The Prior Art Does Not Teach Away From The Challenged Claims
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`Contrary to Network-1’s position, Dr. Zimmerman concludes that neither De
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`Nicolo nor Chang teach away from the claimed invention of the ’930 patent See
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`2nd Zim. Decl. at ¶¶ 59-61. Regarding De Nicolo, the passage relied upon by
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`Network-1 (Response at 49) is at best silent on the subject of safety, and deals
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`instead with the use of remotely-provided power. Importantly, Dr. Knox
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`confirmed that De Nicolo does not discredit or discourage determining if the
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`device is remotely powerable. See Knox Dep. at 147:22 – 148:13. The mere
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`absence of an element, which is what is alleged by Network-1 here, without any
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`criticism, discrediting or discouragement cannot, by itself, constitute a teaching
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`away. See Dystar Textilfarben GmbH v. C.H. Patrick Co., 464 F.3d 1356, 1364
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`(Fed. Cir. 2006)(“We will not read into a reference a teaching away from a process
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`where no such language exists.”).
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`Regarding Chang, developed well prior to De Nicolo, its importance in a
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`combination is for the admitted teaching of determining whether an access device
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`is capable of accepting remote power. De Nicolo supplies the basic Ethernet
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`network that delivers operational power and data over the data signaling pair—
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`doing so in the so-called common mode to boot. The skilled artisan having
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`knowledge of De Nicolo’s elegant solution to any intrusiveness problems with
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`delivering power and data over the same data signaling pair, would certainly apply
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`Chang’s teaching on the data signaling pair—if for no other reason than to save the
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`so-called “spare pair” for its intended function of being a “spare.” See 2nd Zim.
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`Decl. at ¶ 60. In short, whether or not Chang, by itself, teaches away is irrelevant
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`without further considering later-in-time prior art (such as De Nicolo) that
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`addresses the particular concern.
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`B. Matsuno Is Analogous Art
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`Network-1 contends Matsuno is non-analogous art because (i) it is not an
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`Ethernet reference, and (ii) it does not relate to the problem of distinguishing
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`between access devices that can accept remote power from those that cannot. See
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`Response at 52; see also Knox Decl. at ¶¶181-187.
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`As an initial matter, Matsuno does determine the ability of an access device
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`to accept remote power. See Avaya’s Petition and Opposition. However, putting
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`that aside, Dr. Knox himself has opined (at least in a previous litigation) on the
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`direct relevancy of an ISDN reference to the ’930 patent. See Knox Expert Report,
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`April 19, 2010 (AV-1030), page 141; see also 2nd Zim. Decl. at ¶¶ 11-13.
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`Moreover, around the time of the ’930 patent there had already been a strong
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`trend towards integrating ISDN and Ethernet equipment, so much so that the IEEE
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`promulgated a new standard relating to the integration of ISDN and Ethernet, and
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`actual commercial products combining ISDN and Ethernet functionality into a
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`single product were being introduced into the market. See 2nd Zim. Decl. at ¶¶ 61-
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`64. As such, one of ordinary skill in the art would not regard an ISDN reference,
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`to be non-analogous to Ethernet.
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`C.
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`The Secondary Factors Fall Short
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`Teaching away: This argument was debunked above in Section VI.B.
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`Recognition: The evidence relied upon to support Network-1 argument that
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`the invention received recognition by those of extraordinary skill in the art is
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`woefully deficient from an evidentiary standpoint, and in any event falls far short
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`of constituting praise for the claimed invention. Moreover, others of extraordinary
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`skill in the art directly challenged the authenticity of this assertion:
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`“Neither the inventors nor the officers of Merlot were
`able to identify any praise or recognition for, or
`expression of surprise about, the invention of the ‘930
`patent.”
`Expert Report of Dr. Melvin Ray Mercer, (AV-1042), page 110-111.
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`Licenses: Network-1’s evidence here is a press release that itself references a
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`settlement agreement from the prior Cisco litigation. Response at 56-57. Such
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`evidence is insufficient to establish a nexus between a patent and license. In re
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`Antor Media Corp., 689 F.3d 1282, 1293-1294 (Fed. Cir. 2012) (finding no nexus
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`where patent owner “merely lists the licensees and their respective sales revenue”
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`and the “licenses themselves are not even part of the record”). Moreover, its own
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`SEC filings further limit any credence that should be ascribed to the cited press
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`release. See AV-1043 at 5.
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`Skepticism: Finally, Network-1 suggests that there was a level of skepticism
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`in the field regarding the invention of the ’930 patent. However, the skepticism to
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`which Network-1 refers was unrelated to the concept of determining if a remote
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`access device is capable of accepting remote power. See Knox. Dep. at 193:24 –
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`198:9; see also Zim. Decl. at ¶ 65. Thus, Network-1 has failed to establish the
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`existence of objective evidence of nonobviousness sufficient to rebut a prima facie
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`case of obviousness of Claims 6 and 9 in view of Ground 2
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`VII. CONCLUSION
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`Claims 6 and 9 are unpatentable based on Grounds 1 and 2.
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`October 22, 2013
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`Respectfully submitted,
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`/Jeffrey D. Sanok/
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`Jeffrey D. Sanok, Reg. No. 32,169
`Jonathan M. Lindsay, Reg. No. 45,810
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`15
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`CERTIFICATE OF SERVICE UNDER 37 C.F.R. § 42.6(e)
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`I hereby certify that on this 22nd day of October 2013, a true and correct copy
`of the foregoing “REPLY TO PATENT OWNER’S RESPONSE” was served, by
`electronic mail, upon the following:
`
`Robert G. Mukai
`Charles F. Wieland III
`BUCHANAN, INGERSOLL & ROONEY
`P.C.
`1737 King St., Suite 500
`Alexandria, VA 22314
`Robert.Mukai@BIPC.com
`Charles.Wieland@BIPC.com
`Counsel for Network-1 Security Solutions, Inc.
`
`Lionel M. Lavenue, Esq.
`Erika Arner, Esq.
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`Two Freedom Square
`11955 Freedom Drive
`Reston, VA 20190-5675
`(571) 203-2700
`lionel.lavenue@finnegan.com
`erika.arner@finnegan.com
`Counsel for Sony Corp. of America
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`Michael J. Scheer
`Thomas M. Dunham
`WINSTON & STRAWN LLP
`200 Park Ave.
`New York, NY 10166
`(212) 294-4700
`mscheer@winston.com
`tdunham@winston.com
`Counsel for Dell Inc.
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`Robert J. Walters, Esq.
`Charles J. Hawkins, Esq.
`MCDERMOTT WILL & EMERY LLP
`500 North Capitol Street, N.W.
`Washington, DC 20001
`(202) 756-8019
`rwalters@mwe.com
`chawkins@mwe.com
`Counsel for Hewlett-Packard Co.
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`Respectfully submitted,
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`October 22, 2013
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` /Jonathan M. Lindsay/
`Jonathan M. Lindsay, Reg. No. 45,810
`CROWELL & MORING LLP
`Intellectual Property Group
`1001 Pennsylvania Avenue, N.W.
`Washington, DC 20004-2595
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