Adverse Judgment
`
`• Patent Owner canceled all issued claims of
`U.S. Patent No. 8,312,226 (‘226 Patent),
`namely claims 1-12.
`
`• Patent Owner canceled all issued claims of
`U.S. Patent No. 8,370,583 (‘583 Patent),
`namely claims 1-27.
`
`IPR2013-00402 (“IPR 402”) Paper No. 25 at 1; IPR2013-00403 (“IPR 403”) Paper No. 23 at 1
`
`1
`
`
`
`• Patent Owner canceled all issued claims of
`U.S. Patent No. 8,312,226 (‘226 Patent),
`namely claims 1-12.
`
`• Patent Owner canceled all issued claims of
`U.S. Patent No. 8,370,583 (‘583 Patent),
`namely claims 1-27.
`
`IPR2013-00402 (“IPR 402”) Paper No. 25 at 1; IPR2013-00403 (“IPR 403”) Paper No. 23 at 1
`
`1
`
`
`
`Patent Owner’s Burden
`
`“The burden is not on the petitioner to show
`unpatentability, but on the patent owner to
`show patentable distinction over the prior art of
`record and also prior art known to the patent
`owner.”
`
`IPR 402 Paper No. 26 at 1-3 and IPR 403 Paper No. 24 at 1-3, citing Idle Free Paper No. 66 at 33-34.
`
`2
`
`
`
`Patent Owner’s Burden
`
`“A patent owner should . . . come forward with
`technical facts and reasoning about those
`feature(s), including construction of new claim
`terms, sufficient to persuade the Board that the
`proposed substitute claim is patentable over the
`prior art of record, and over prior art not of
`record but known to the patent owner.”
`
`IPR 402 Paper No. 26 at 1-3 and IPR 403 Paper No. 24 at 1-3, citing Idle Free Paper No. 66 at 33-34.
`
`3
`
`
`
`Patent Owner’s Claim Construction
`
`“Patent Owner provides proposed claim
`constructions under the standard applicable for
`Inter Partes Reviews, for the terms “sync point,”
`“fine sync point,” and “coarse sync point” used
`in the proposed substitute claims1”
`
`IPR 402 Paper No. 25 at 6 and IPR 403 Paper No. 23 at 6.
`
`4
`
`
`
`Patent Owner’s Claim Construction
`
`“1Patent Owner’s construction should not be
`deemed to be what the Patent Owner contends
`is the construction that these terms should be
`given outside of the context of Inter Partes
`Review.”
`
`IPR 402 Paper No. 25 at 6 and IPR 403 Paper No. 23 at 6.
`
`5
`
`
`
`Demonstrating General Patentability Over Prior Art
`
`“Distinguishing the proposed substitute claims
`only from the prior art references applied to the
`original patent claims, however, is insufficient to
`demonstrate general patentability over prior
`art.”
`
`IPR 402 Paper No. 26 at 2-3 and IPR 403 Paper No. 24 at 2-3, citing Idle Free Paper No. 66 at 34.
`
`6
`
`
`
`Patent Owner Only Attempts to
`Distinguish Over Applied Prior Art
`
`“Patent Owner attempts to distinguish the proposed
`substitute claims . . . only from the prior art references
`applied to the original patent claims . . .”
`
`• McCanne '376 (Exhibit RIV-1003)
`
`• McCanne '700 (Exhibit RIV-1004)
`
`• McCanne '225 (Exhibit RIV-1005)
`
`• Spring (Exhibit SIL-2002)
`
`IPR 402 Paper No. 26 at 3-4 and IPR 403 Paper No. 24 at 3-4.
`
`7
`
`
`
`Patent Owner’s Burden
`
`“The burden is not on the petitioner to show
`unpatentability, but on the patent owner to
`show patentable distinction over the prior art of
`record and also prior art known to the patent
`owner.”
`
`IPR 402 Paper No. 26 at 1-3 and IPR 403 Paper No. 24 at 1-3, citing Idle Free Paper No. 66 at 33-34.
`
`8
`
`
`
`Patent Owner Fails to Distinguish
`Over Known Art
`
`“One skilled in the art also knew that hash
`values and filters could be used in other
`contexts. However, it would not have been
`obvious to identify sync points by filtering
`hashes of the data, or to perform this filtering
`using both fine and coarse filters, as claimed.”
`
`IPR 402 Paper No. 25 at 14 and IPR 403 Paper No. 23 at 14.
`
`9
`
`
`
`Patent Owner Fails to Distinguish
`Over Known Art
`
`That is, “the Patent Owner characterizes that the
`substitute claims recite a ‘data deduplication’
`system configured to ‘identify sync points by
`filtering hashes of the data, or to perform this
`filtering using both fine and coarse filters,’ and
`that such is not shown in the . . . prior art.”
`
`IPR 402 Paper No. 26 at 4 and IPR 403 Paper No. 24 at 4.
`
`10
`
`
`
`Patent Owner Fails to Distinguish
`Over Known Art
`
`“Hsu discloses filtering
`hash values of data in an
`approximation test (i.e.
`fine filter) and then
`filtering hash values of
`data in a more accurate
`te[s]t (e.g. coarse filter) to
`identify duplicate data.”
`
`IPR 402 Paper No. 26 at 6 and IPR 403 Paper No. 24 at 6.
`
`11
`
`
`
`Patent Owner Fails to Distinguish
`Over Known Art
`
`“The burden is not on the petitioner to show
`unpatentability, but on the patent owner to
`show patentable distinction over the prior art of
`record and also prior art known to the patent
`owner.”
`
` Hsu, known by the Patent Owner, discloses
`“filtering using both fine and coarse filters.”
`
`IPR 402 Paper No. 26 at 1-7 and IPR 403 Paper No. 24 at 1-7.
`
`12
`
`
`
`Showing of Patentable Distinction
`
`“A showing of patentable distinction can rely on
`declaration testimony of a technical expert
`about the significance and usefulness of the
`feature(s) added by the proposed substitute
`claim, from the perspective of one with ordinary
`skill in the art, and also on the level of ordinary
`skill, in terms of ordinary creativity and the basic
`skill set.”
`
`IPR 402 Paper No. 26 at 1-3 and 8 and IPR 403 Paper No. 24 at 1-3 and 8, citing Idle Free Paper No. 66 at 33-34.
`
`13
`
`
`
`No Technical Expert
`
`“Patent Owner provides no expert declaration at
`all. That is, the Patent Owner provides no
`declaration from a technical expert discussing
`the prior art, much less the level of ordinary skill
`in the art.”
`
`IPR 402 Paper No. 26 at 7 and IPR 403 Paper No. 24 at 7.
`
`14
`
`
`
`Attorney Argument
`
`“Because these prior systems use presegmented
`data, they cannot operate at byte-level granularity
`and cannot detect partial matches between
`segments. Even if there is only a very small
`difference between two segments (e.g., a 1%
`difference), these systems may be unable to
`identify the matching portion and treat the whole
`segment as non-matching. As a result, prior art
`systems have limited efficiency when dynamic data
`is present.”
`
`IPR 402 Paper No. 25 at 10 and IPR 403 Paper No. 23 at 10.
`
`15
`
`
`
`Attorney Argument
`
`“Unlike the prior art token-based systems, the
`inventions of [the] substitute claims . . .
`enable[s] rapid and flexible matching of portions
`of data of arbitrary length, thus improving
`efficiency.”
`
`IPR 402 Paper No. 25 at 10 and IPR 403 Paper No. 23 at 10.
`
`16
`
`
`
`Attorney Argument
`
`“Moreover, modifying McCanne to use a segmenting
`approach other than precut content-induced segments
`and which was based on memory matching would not
`have been obvious. . . . Using a different approach of
`segmenting based not only on the content of input
`data (which could cause independently-operating
`nodes to segment differently) would not have been
`obvious.”
`
`IPR 402 Paper No. 25 at 12-13 and IPR 403 Paper No. 23 at 12.
`
`17
`
`
`
`Attorney Argument
`
`“Even if one were to combine Spring and
`McCanne, the combination would still not
`disclose or suggest any practical solution to
`managing real-world computational and storage
`constraints in a data de-duplication system that
`operates without pre-cut segments (e.g., at a
`byte-level granularity).”
`
`IPR 402 Paper No. 25 at 13 and IPR 403 Paper No. 23 at 13.
`
`18
`
`
`
`Attorney Argument
`
`“A tradeoff exits between the size of an index of
`segments (or the data history length that can be
`indexed) and the likelihood that an indexed
`segment will be able to be matched. If segments
`are short, a larger index is required to index
`segments for a given length of data (which may
`become computationally challenging to search at
`scale) or the amount of past data that can be
`indexed is limited for a fixed-size index. . . . Spring
`which operates on (small) IP packets does not offer
`any practical solution to managing this tradeoff.”
`
`IPR 402 Paper No. 25 at 13 and IPR 403 Paper No. 23 at 13.
`
`19
`
`
`
`Attorney Argument
`
`“The claimed invention optimizes this tradeoff
`without requiring pre-cut segments by using a
`combination of coarse and fine filters to locate
`hashes corresponding to fine and coarse sync
`points. ‘583, 9:38–45. Filtering in general reduces
`the computational requirements by choosing a
`limited set of locations for comparison instead of
`performing a direct memory comparison at every
`byte boundary. . . . Without this filtering solution,
`data dededuplication without pre-cut segments
`would not be practically achievable.”
`
`IPR 402 Paper No. 25 at 13-14 and IPR 403 Paper No. 23 at 13-14.
`
`20
`
`
`
`Attorney Argument
`
`“[I]t would not have been obvious to identify sync points
`by filtering hashes of the data, or to perform this filtering
`using both fine and coarse filters, as claimed. This
`solution, which may involve computing a large number of
`hashes at byte-level resolution, then filtering them down
`to identify sync points of potential matches, is not at all
`the immediate and obvious solution. Rather, it is
`inventive engineering that achieves rapid search, while
`preserving the ability to match at the byte level, which
`none of the prior art of which the Patent Owner is aware
`could provide at the time the invention was made either
`alone or in combination.”
`
`IPR 402 Paper No. 25 at 14 and IPR 403 Paper No. 23 at 14.
`
`21
`
`
`
`Attorney Argument
`
`“A person of ordinary skill in the art would have
`recognized that storing multiple copies of data is common
`in other contexts, such as for the purposes of improving
`data reliability. However, these techniques do not require
`storing data at any particular index location (or together
`with any other data) and therefore do not render the
`claimed invention obvious either alone or in combination
`with McCanne. Moreover, in a data de-duplication
`context, in which storage space is typically limited and
`additional storage comes with a cost, storing an
`additional copy of data is not necessarily desirable or an
`obvious feature to implement.”
`
`IPR 402 Paper No. 25 at 15 and IPR 403 Paper No. 23 at 15.
`
`22
`
`
`
`Attorney Argument
`
`“Because of the Patent Owner's lack of
`evidentiary support, these unsupported
`arguments appear to be attorney argument at
`best.”
`
`– Instead, “as the Board has previously emphasized,
`the Patent Owner could have provided an expert
`declaration to support it conclusions in its motion,
`but has failed to do so.”
`
`IPR 402 Paper No. 26 at 7-8 and IPR 403 Paper No. 24 at 7-8.
`
`23
`
`
`
`What about those “contexts”?
`
`• “One skilled in the art also knew that hash values and
`filters could be used in other contexts.”
`• “A person of ordinary skill in the art would have further
`understood that the general concept of performing
`direct memory comparisons of data to determine a
`matching region (as opposed to matching pre-cut
`segments) was known in the contexts of network-layer
`caches.”
`• “A person of ordinary skill in the art would have
`recognized that storing multiple copies of data is
`common in other contexts, such as for the purposes of
`improving data reliability.”
`
`IPR 402 Paper No. 25 at 11, 14, and 15 and IPR 403 Paper No. 23 at 11, 14, and 15.
`
`24
`
`
`
`Patent Owner’s Burden
`
`“The burden is not on the petitioner to show
`unpatentability, but on the patent owner to
`show patentable distinction over the prior art of
`record and also prior art known to the patent
`owner.”
`
`– “Because of the Patent Owner's lack of evidentiary
`support, these unsupported arguments appear to
`be attorney argument at best.”
`
`IPR 402 Paper No. 26 at 1-3 , 7, and 8 and IPR 403 Paper No. 24 at 1-3, 7, and 8, citing Idle Free Paper No. 66 at 33-34.
`
`25
`
`
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