UNITED STATES PATENT AND TRADEMARK OFFICE
`
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`______________
`
`Sipnet EU S.R.O.,
`
`Petitioner
`
`v.
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`Straight Path IP Group, Inc.,
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`Patent Owner
`
`
`______________
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`Case No. IPR2013-00246
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`U.S. Patent No. 6,108,704
`
`
`______________
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`
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`PATENT OWNER’S REQUEST FOR REHEARING
`OF DECISION TO INSTITUTE TRIAL, 37 C.F.R. § 42.71(c) & (d)
`
`
`
`
`
`October 25, 2013
`
`
`
`
`
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`______________
`
`Sipnet EU S.R.O.,
`
`Petitioner
`
`v.
`
`Straight Path IP Group, Inc.,
`
`Patent Owner
`
`
`______________
`
`Case No. IPR2013-00246
`
`U.S. Patent No. 6,108,704
`
`
`______________
`
`
`
`PATENT OWNER’S REQUEST FOR REHEARING
`OF DECISION TO INSTITUTE TRIAL, 37 C.F.R. § 42.71(c) & (d)
`
`
`
`
`
`October 25, 2013
`
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`
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`Case No. IPR2013-00246
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`I.
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`INTRODUCTION
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`Statutes and regulations require Petitioner to set forth “in writing and with
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`particularity” a “detailed explanation of the significance of the evidence” that
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`forms the basis for its Petition.1 Petitioner failed to do so, and Patent Owner
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`explained why those procedural failures preclude inter partes review.2 First,
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`Patent Owner explained that an inherency finding must be supported by extrinsic
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`evidence, and that Petitioner failed to provide any such evidence to support its
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`inherency allegations. Second, Patent Owner explained that Petitioner failed to put
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`forward any obviousness argument with respect to the combination of NetBIOS
`
`and WINS – the applicable section makes an argument for anticipation, and not
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`obviousness. Third, Patent Owner explained that a prima facie showing of
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`anticipation requires demonstrating that a prior art reference discloses every
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`limitation exactly as arranged in the claims; Petitioner instead only selectively
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`excerpted isolated disclosures from the prior art without further showing that the
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`prior art is arranged and combined in the same manner as the claims. Fourth,
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`Patent Owner identified that the Petitioner improperly relied upon several
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`combinations of references to argue anticipation. The Board’s Decision to Institute
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`1 See 35 U.S.C. § 312(a)(3); 37 C.F.R. § 42.22(a)(2).
`
`2 While the Petition is also substantively flawed, Patent Owner chose to focus its
`Preliminary Response on Petitioner’s threshold failures to meet the procedural
`requirements for inter partes review, because those flaws alone are more than
`sufficient grounds for denying the Petition.
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`Case No. IPR2013-00246
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`Trial overlooked and did not address these procedural flaws, and Patent Owner
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`respectfully requests a rehearing on these issues.
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`II. THE BOARD’S DECISION INSTITUTING INTER PARTES REVIEW
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`On April 11, 2013, Sipnet filed a Petition requesting inter partes review of
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`various claims of U.S. Patent No. 6,108,704 (“the ’704 patent”), in view of several
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`asserted prior art references and combinations thereof, including NetBIOS3 and
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`WINS,4 as well as Messenger5 and DNS.6 On July 15, 2013, Patent Owner filed a
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`Preliminary Response identifying defects in Petitioner’s arguments and evidence.
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`On October 11, 2013, the Board instituted inter partes review of Claims 1-7
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`and 32-42 of the ’704 patent, on the following grounds proposed by Petitioner:
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` Anticipation of Claims 1-7, 32, and 38-42 by NetBIOS;
` Anticipation of Claims 1-7 and 38-42 by WINS; and
` Obviousness of Claims 33-37 over NetBIOS and WINS.7
`
`III. LEGAL STANDARD
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`A. The Standard of Review for Rehearing
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`Under 37 C.F.R. § 42.71(d), “[a] party dissatisfied with a decision may file a
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`
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` Exhibit 1003.
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` 3
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`4 Exhibit 1004.
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`5 Exhibits 1011 & 1012.
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`6 Exhibits 1006, 1007, & 1013.
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`7 See Decision, Paper No. 11 at 20-21.
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`Case No. IPR2013-00246
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`request for rehearing” that specifically identifies “all matters the party believes the
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`Board misapprehended or overlooked, and the place where each matter was
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`previously addressed in a motion, an opposition, or a reply.” “When rehearing a
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`decision on petition, a panel will review the decision for an abuse of discretion.”8
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`“An abuse of discretion occurs where the decision is based on an erroneous
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`interpretation of the law, on factual findings that are not supported by substantial
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`evidence, or represents an unreasonable judgment in weighing relevant factors.”9
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`B.
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`The Standard for Instituting Inter Partes Review
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`Institution of inter partes review requires a “reasonable likelihood that the
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`petitioner would prevail with respect to at least 1 of the claims challenged in the
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`petition.”10 To do so, the Petition must identify, “in writing and with particularity,
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`each claim challenged, the grounds on which the challenge to each claim is based,
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`and the evidence that supports the grounds for the challenge to each claim.”11 This
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`requires a “full statement of the reasons for the relief requested, including a
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`detailed explanation of the significance of the evidence including material facts,
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`8 37 C.F.R. 42.71(c).
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`9 Burandt v. Dudas, 528 F.3d 1329, 1332 (Fed. Cir. 2008).
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`10 35 U.S.C. § 314(a).
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`11 35 U.S.C. § 312(a)(3).
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`Case No. IPR2013-00246
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`and the governing law, rules, and precedent.”12
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`IV. ARGUMENT
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`Patent Owner respectfully requests rehearing of the Board’s Decision in
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`view of the following arguments from the Preliminary Response that were
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`overlooked or otherwise not adequately addressed by the Board. First, the
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`Preliminary Response noted Petitioner’s failure to provide the requisite extrinsic
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`evidence necessary to establish inherent anticipation. While Petitioner’s claim
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`charts assert inherent disclosure of various limitations by NetBIOS and WINS,
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`Petitioner never submitted any extrinsic evidence to support those claims.
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`Second, Patent Owner noted several defects in Petitioner’s arguments with
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`respect to the alleged obviousness of Claims 33-37. Petitioner failed to put forth
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`any “obviousness” arguments based on combining NetBIOS and WINS. Instead,
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`the section of the Petition that allegedly addresses this argument only makes an
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`argument that NetBIOS, and not WINS, anticipates the challenged claims. In fact,
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`the Petitioner’s “articulated reasoning and rational underpinning” relied on by the
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`Board was actually directed to a different prior art combination and a different
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`claim reciting different language. Patent Owner therefore had no burden to “rebut”
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`a prima facie case that Petitioner never properly established in the first instance.
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`Nor did Petitioner conduct an explicit Graham analysis.
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`12 37 C.F.R. § 42.22(a)(2).
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`Third, the Response established that Petitioner never met its initial burden of
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`showing prima facie anticipation, by failing to demonstrate that NetBIOS or WINS
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`disclosed each and every claim limitation exactly as they are recited in the claims.
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`Instead, the Petition only set forth skeletal arguments showing, at best, that the
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`accompanying claim charts disclosed every claim limitation. But the relevant
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`inquiry requires showing that the prior art discloses the claimed invention and
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`each of its interrelated parts exactly as they appear in the claims. Petitioner never
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`met this initial burden, and Patent Owner therefore had no burden to rebut a prima
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`facie case of anticipation that Petitioner never established in the first place.
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`Fourth, the Response identified numerous evidentiary defects in the
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`Messenger and DNS references, which the Board overlooked in concluding that
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`those references provided additional, redundant grounds for inter partes review.
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`When those evidentiary defects are properly considered, both Messenger and DNS
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`are unavailable as prior art, and therefore do not warrant inter partes review.
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`Each of these defects overlooked by the Board are explained in turn below.
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`A.
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`Petitioner Failed to Meet the Strict Evidentiary Standard for
`Inherent Anticipation by NetBIOS or WINS
`
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`The Board concluded that NetBIOS and WINS disclose every limitation of
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`the challenged claims, but overlooked Petitioner’s repeated reliance on the doctrine
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`of inherent anticipation in arguing anticipation of Claims 1-3 in view of NetBIOS
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`and Claims 1, 2, and 7 in view of WINS. Federal Circuit law requires extrinsic
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`evidence to support inherency, but Petitioner failed to provide any such support for
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`its reliance on inherency at Pages 34, 35, 40, 41, 43, and 49 of its claim charts. For
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`example, as identified at Page 22 of the Response, the Petition states “It is inherent,
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`and understood by those of skill in the art, that the NetBIOS Name Server and the
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`WINS server include a memory for the referenced name databases.” However,
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`Petitioner provides no extrinsic evidence to support this claim.13
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`Patent Owner specifically pointed out that Petitioner’s reliance on inherent
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`anticipation in this manner was legally improper, noting that “Petitioner attempts
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`to argue that certain limitations of the challenged claims are ‘inherent,’ but offers
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`no evidence that would establish the inherency of the limitations.”14 Notably, both
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`parties agree as to the standard for inherency, and even cite the same case for the
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`proposition that “[t]o establish inherency, the extrinsic evidence ‘must make clear
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`that the missing descriptive matter is necessarily present in the thing described in
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`the reference, and that it would be so recognized by persons of ordinary skill.’”15
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`Here, there is no dispute that Petitioner failed to satisfy this three-part test
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`for inherent anticipation. Specifically, Petitioner never provided (1) any extrinsic
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`13 See Preliminary Response, Paper No. 8 at 22; see also Petition, Paper No. 1 at
`41.
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`14 Preliminary Response, Paper No. 8 at 22.
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`15 See Petition, Paper No. 1 at 23; Preliminary Response, Paper No. 8 at 22 (both
`quoting In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999)).
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`evidence to demonstrate (2) that the missing descriptive matter is necessarily
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`present in the reference, and that (3) this would be recognized by persons of
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`ordinary skill in the art. Petitioner’s bare attorney arguments are not sufficient
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`evidence of invalidity. This was noted at Pages 10-11, 22, and 29-30 of Patent
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`Owner’s Preliminary Response,16 but was not addressed by the Board’s Decision.
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`
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`Accordingly, Patent Owner respectfully submits that inter partes review
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`based on unsupported attorney arguments regarding inherency is therefore
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`unwarranted, and requests reconsideration of the Board’s Decision in that regard.
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`B.
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`Petitioner Failed to Conduct a Proper Obviousness Analysis for
`the NetBIOS and WINS Prior Art Combination
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`
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`The Board’s Decision also instituted inter partes review of Claims 33-37 on
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`obviousness grounds, in view of the NetBIOS and WINS references asserted by
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`Petitioner. The Board reached this decision based on the claim charts at Pages 36-
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`37 of the Petition, together with arguments at Page 21 of the Petition directed to a
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`different combination of prior art references and different claim language.17 Patent
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`Owner respectfully submits that the Board overlooked the following defects with
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`respect to Petitioner’s combination of NetBIOS and WINS.
`
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`16 See, e.g., Preliminary Response, Paper No. 8 at 11 (citing Invitrogen Corp. v.
`Clontech Labs., Inc., 429 F.3d 1052, 1068 (Fed. Cir. 2005) (“Unsubstantiated
`attorney argument regarding the meaning of technical evidence is no substitute for
`competent, substantiated expert testimony.”).
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`17 See Decision, Paper No. 11 at 15-16.
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`First, Petitioner failed entirely to provide any coherent arguments in support
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`of the alleged obviousness of claims 33-37 in view of the combination of NetBIOS
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`and WINS. Instead, Petitioner’s arguments with respect to obviousness based on
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`NetBIOS and WINS is limited to the following language at pages 26-27 of the
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`Petition, which only alleges anticipation:
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`Claims 1-7 and 32-42 should be cancelled under 35 U.S.C. § 103 as
`obvious over NetBIOS (Exhibit 1003) in view of WINS (Exhibit 1004)
`
`Claim 1
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`Claim 1 is invalid as anticipated by NetBIOS for the reasons set forth
`above. Although the argument for invalidity over NetBIOS in view of
`WINS relies on WINS to show dynamic addressing, in fact dynamic
`addressing is not required by claim 1. Nowhere does claim 1 say how
`often or how recently a process is connected to the network. Thus any
`connection, whether dynamic or not, anticipates claim 1. The
`remaining claims are similarly anticipated for the reasons set forth in
`B above, and as set forth in the claim charts below.18
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`
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`As indicated by the above language, nowhere in the relevant section of the
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`Petition does the Petitioner ever provide any rational argument or analysis as to
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`why the asserted claims would be obvious in view of the asserted combination of
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`NetBIOS and WINS. The Board has held that “it is improper to omit arguments
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`from where they are expected, based on explicit caption in the petition.”19 This
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`complete mismatch renders Petitioner’s obviousness position nonsensical and
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`18 See Petition, Paper No. 1 at 26-27 (emphasis added).
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`19 Microstrategy, Inc. v. Zillow, Inc., IPR2013-00034, Paper 23 at 3 (Apr. 22,
`2013).
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`unintelligible, and is not a proper basis for inter partes review.20
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`Second, the Board relied on the invalidity arguments set forth at Page 21 of
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`the Petition to conclude “Petitioner has provided an articulated reasoning with a
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`rational underpinning to support the conclusion of obviousness” of Claims 33-37.21
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`In doing so, the Board overlooked the significant fact that Page 21 of the Petition is
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`limited to an invalidity analysis of Claim 1 based on a different prior art
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`combination – NetBIOS or WINS in view of Messenger.22 Claims 33-37 also
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`recite different language than Claim 1, and indeed none of Claims 33-37 depend
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`from Claim 1. Accordingly, the Petitioner’s “articulated reasoning with a rational
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`underpinning” identified by the Board is legally inapposite to the alleged
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`obviousness of Claims 33-37.23 Thus, as noted by Patent Owner’s Response, the
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`Petition should be denied because “Petitioner fails to provide analysis or argument
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`for each and every claim limitation as required by 37 C.F.R. § 42.104(b).”24
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`Third, in view of the above defects, the Board erred in faulting Patent Owner
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`20 See Preliminary Response, Paper No. 8 at 28.
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`21 See Decision, Paper No. 11 at 15-16 (citing and discussing Petitioner’s reasoning
`as to obviousness as set forth at Page 21 of the Petition).
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`22 Specifically, Page 21 of the Petition argues obviousness based on NetBIOS or
`WINS in view of Messenger, rather than the combination of NetBIOS with WINS.
`See Petition at Pages 20-21.
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`23 The other defects noted throughout this section broadly apply to all of the claims
`challenged by Petitioner on obviousness grounds in view of NetBIOS and WINS.
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`24 Preliminary Response, Paper No. 8 at 28.
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`for “not provid[ing] any evidence or rationale to rebut Petitioner’s reasoning
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`supporting the conclusion of obviousness.”25 As noted, Petitioner failed to meet its
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`initial burden of establishing a prima facie case of obviousness, because Petitioner
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`only argued anticipation in connection with NetBIOS and WINS. Patent Owner
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`therefore had no burden to rebut a prima facie case that was never established.
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`Fourth, the Board’s Decision does not address Patent Owner’s position that
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`Petitioner never conducted a proper Graham analysis under 35 U.S.C. § 103. As
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`Patent Owner explained at Page 29 of its Preliminary Response, Petitioner’s
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`obviousness analysis was flawed and incomplete, in view of its failure to provide a
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`detailed analysis of the relevant Graham factors.26 The Decision overlooked
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`Patent Owner’s position that “Petitioner fails to conduct a proper Graham analysis,
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`including a particular motivation or rationale for combining the asserted
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`references,”27 which has previously been a basis for denying inter partes review.28
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`C.
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`Petitioner Failed to Meet Its Burden of Demonstrating That
`NetBIOS and WINS Disclose Each and Every Claim Limitation
`Exactly as Arranged and Combined in the Claims
`
`
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`The Board’s Decision also authorized inter partes review based on alleged
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`25 See Decision, Paper No. 11 at 15.
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`26 See Preliminary Response, Paper No. 8 at 22-23.
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`27 Id. at 29.
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`28 See id. at 24.
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`anticipation of Claims 1-2, 32, and 38-42 by NetBIOS, and anticipation of Claims
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`1-7 and 38-42 by WINS. Anticipation requires not only the disclosure of every
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`limitation within the four corners of an asserted prior art reference, but also a
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`further showing that each of those elements are arranged or combined exactly as
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`they appear in the claims. 29 Petitioner failed to make this showing, instead relying
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`on claim charts listing isolated excerpts from the prior art references, but the Board
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`concluded that these claim charts were “sufficient evidence” of anticipation.30
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`Patent Owner respectfully requests reconsideration of the Board’s
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`conclusion. The Board did not adequately address Patent Owner’s argument, set
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`forth at Pages 17 and 29-30 of its Response, that Petitioner failed to meet the
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`threshold of a prima facie case of anticipation by showing that each of the
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`elements of the prior art are arranged or exactly as they appear in the claims.
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`Here, NetBIOS and WINS are each hundreds of pages in length, and
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`Petitioner’s claim charts simply cherry-pick isolated excerpts from those
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`references, without an explanation of how the prior art shows the exact
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`29 See id. at 17 (citing NetMoneyIN, Inc., 545 F.3d at 1359); see also Synopsys, Inc.
`v. Mentor Graphics Corp., IPR2012-00041, Paper 21 at 3-4 (May 2, 2013)
`(“Petitioner’s ‘Detailed Explanation’ of asserted grounds for anticipation of the
`challenged claims…consisted solely of a claim chart. Thus, the Board had no
`analysis or explanation to accompany the quoted language from the [patent] with
`which to determine whether Petitioner had met the threshold barrier required by 35
`USC § 314(a).”).
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`30 See Decision, Paper No. 11, at 9, 13.
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`arrangement or combination of these limitations.31 For example, as stated in the
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`Response, Petitioner submitted isolated phrases from pages 51, 57, 132, and 177 of
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`the WINS reference to establish anticipation of a single claim.32 These disclosures
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`refer to separate modes of the WINS system, and are not connected as would be
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`required for an anticipation argument. Page 51 of WINS discusses the “p-node”
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`environment of TCP/IP, while the page 57 disclosure discusses querying in the “h-
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`node” environment.33 The disclosure on page 132 similarly does not specify that it
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`applies to the TCP/IP connection discussed in the other reference snippets.34
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`Likewise, in arguing anticipation by NetBIOS, Petitioner uses three quotations
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`from three separate sections for the same limitation.35 In one citation, the
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`Petitioner even attempts to show the presence of a memory by citing a definition
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`from the NetBIOS glossary that “is a term associated with DOS,” when DOS is
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`entirely unrelated to the protocol standard cited in the rest of the limitations.36 This
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`incomplete, selective presentation of the prior art is legally insufficient to establish
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`31 See Preliminary Response, Paper No. 8 at 21.
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`32 See also id. at 29-30.
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`33 See Ex. 1004, Page 67 (“P-Node”), Page 72 (“The computer first queries the
`WINS server, and if that does not succeed, it broadcasts its name registration and
`query requests via UDP datagrams (h-node), in the following series of steps”).
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`34 See id. at Page 148.
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`35 Petition, Paper No. 1 at 41-42; see also Preliminary Response, Paper No. 8 at 30.
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`36 Ex. 1003, Page 505; see also Petition, Paper No. 1 at 34.
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`anticipation under Federal Circuit law.
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`Although the Board stated in its Decision that Petitioner “has pointed
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`particularly to where in [the references] each claim element is disclosed,” the
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`Board did not address the Petitioner’s failure to appropriately connect these
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`isolated disclosures. Accordingly, Patent Owner respectfully reiterates that
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`Petitioner’s claim charts were not sufficient evidence of anticipation by NetBIOS
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`or WINS, and Patent Owner therefore had no burden to rebut a prima facie case of
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`anticipation that was never properly established in the first instance.
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`D. The Messenger and DNS References Should Be Dismissed, and
`Not Treated as Redundant Grounds for Inter Partes Review
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`
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`Finally, Patent Owner respectfully requests rehearing of the Board’s finding
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`that anticipation by Messenger, DNS1, DNS2, and DNS Orig. would provide
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`additional, redundant grounds for inter partes review in light of the Board’s
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`decision to institute trial based on NetBIOS and WINS. If these additional
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`references are deemed redundant instead of dismissed, Petitioner will potentially
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`be allowed to rely upon those references to oppose a Patent Owner’s proposed
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`amendments and substituted claims in the upcoming stages of inter partes
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`review.37 Patent Owner therefore addresses the defects in those references here.
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`37 See ScentAir Techs., Inc. v. Prolitec, Inc., IPR2013-00180, Paper 18 (Aug. 26,
`2013) (“[Petitioner] is not foreclosed from relying on references it relied on in the
`non-instituted grounds to account for new claim limitations that [Patent Owner]
`may seek to add,” even if “the Board denied certain grounds as redundant in the
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`First, the Preliminary Response stated that the Petitioner improperly relied
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`upon several combinations of references to argue anticipation.38 Two separate
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`documents were submitted for the Messenger reference, and three separate
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`documents were submitted for the DNS reference. As noted, this reliance on
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`multiple references for anticipation is improper, because anticipation “requires that
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`each limitation of a claim must be found in a single reference,” and a party may
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`not “combine the teachings of the references to build an anticipation” case.39
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`Second, Patent Owner also argued in its Preliminary Response that Petitioner
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`failed to properly qualify the three DNS references as publicly accessible printed
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`publications.40 Specifically, Patent Owner noted that printed publications “must be
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`generally available,” which requires “a satisfactory showing that such a document
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`has been disseminated or otherwise made available to the public.”41 Petitioner
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`failed to demonstrate that each of DNS1, DNS2, and DNS Orig. satisfied these
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`standards for publicly accessible printed publications.42
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`decision instituting inter partes review.”).
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`38 Preliminary Response, Paper No. 8 at 19-20, 26, 31.
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`39 Id. at 20 (citing Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1335 (Fed.
`Cir. 2002)).
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`40 Id. at 14-16, 31.
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`41 Id. at 14-15.
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`42 See id. at 15-16 (noting DNS1 is an Internet Draft, DNS2 is a slide presentation,
`and DNS Orig. is a “static DNS description”).
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`Third, Patent Owner observed that the Messenger references were
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`inadequate because the Petitioner failed to submit copies of the entire references
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`with its Petition.43 Under Federal Circuit law, a proper anticipation analysis
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`requires “looking at the reference as a whole, [to] conclude whether or not that
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`reference discloses all elements of the claimed invention arranged as in the
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`claim.”44 As noted in the Preliminary Response, Petitioner submitted only eight of
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`377 pages from the Messenger-Ryan reference, and only five of more than 900
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`pages from Messenger-NT Unleashed.45
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`The Board’s Decision did not specifically address these evidentiary defects
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`in finding Messenger and DNS redundant bases for anticipation.46 Patent Owner
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`therefore respectfully requests that the Board reconsider that ruling.
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`V. CONCLUSION
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`Patent Owner respectfully requests rehearing of the Board’s Decision to
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`Institute Trial, for the reasons noted above.
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`
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`43 Id. at 17-18, 26.
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`44 Id. at 17.
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`45 Id. at 17-18.
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`46 See Decision, Paper No. 11 at 18-19.
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`Respectfully Submitted,
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`
`/Patrick J. Lee/
`Patrick J. Lee (Reg. No. 61,746)
`Fisch Hoffman Sigler LLP
`5335 Wisconsin Avenue
`Suite 830
`Washington, D.C. 20015
`Telephone: 202-362-3500
`Fax: 202-362-3501
`Email: patrick.lee@fischllp.com
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`Date: October 25, 2013
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`Case No. IPR2013-00246
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`CERTIFICATE OF SERVICE
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`
`
`The undersigned hereby certifies that this PATENT OWNER’S REQUEST FOR
`REHEARING PURSUANT TO 37 C.F.R. § 42.71(c) & (d) FOR PARTIAL
`RECONSIDERATION OF DECISION TO INSTITUTE TRIAL was served,
`by agreement of the parties, by electronic mail on counsel for the Petitioner on
`October 25, 2013 as follows:
`
`
`Paul C. Haughey
`Michael T. Morlock
`Kilpatrick Townsend & Stockton, LLP
`phaughey@kilpatricktownsend.com
`mmorlock@kilpatricktownsend.com
`
`
`
`Dated: October 25, 2013
`
`
`
`
`
`
`/ Patrick J. Lee /
`
`Patrick J. Lee
`Registration No. 61,746
`Fisch Hoffman Sigler LLP
`5335 Wisconsin Avenue NW
`Suite 830
`Washington, DC 20015
`Telephone: 202-362-3500
`Fax: 202-362-3501
`Email: patrick.lee@fischllp.com
`Attorney for Patent Owner
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