Paper 24
`Date: April 22, 2014
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DELL INC., HEWLETT-PACKARD COMPANY, and NETAPP, INC.,
`Petitioners,
`
`v.
`
`ELECTRONICS AND TELECOMMUNICATIONS RESEARCH
`INSTITUTE,
`Patent Owner.
`_______________
`
`Case 2013-00635
`Patent 6,978,346 B2
`_______________
`
`
`Before BRIAN J. McNAMARA, MIRIAM L. QUINN, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`ANDERSON, Administrative Patent Judge.
`
`
`
`DECISION
`Petitioners’ Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`Date: April 22, 2014
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DELL INC., HEWLETT-PACKARD COMPANY, and NETAPP, INC.,
`Petitioners,
`
`v.
`
`ELECTRONICS AND TELECOMMUNICATIONS RESEARCH
`INSTITUTE,
`Patent Owner.
`_______________
`
`Case 2013-00635
`Patent 6,978,346 B2
`_______________
`
`
`Before BRIAN J. McNAMARA, MIRIAM L. QUINN, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`ANDERSON, Administrative Patent Judge.
`
`
`
`DECISION
`Petitioners’ Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`IPR2013-00635
`Patent 6,978,346 B2
`
`
`
`
`
`
`I.
`INTRODUCTION
`Dell, Inc., Hewlett-Packard Company, and NetApp, Inc. (“Petitioners”)
`request rehearing (Paper 21, “Rehearing Req.”) of the Board’s Decision instituting
`(Paper 19, “Dec.”) inter partes review of claims 1-3 and 5-8. In the Decision, the
`Board concluded that Petitioners did not present sufficient evidence to support the
`contention that Weygant discloses the “exchanges information” limitation recited
`in claim 1 as follows:
`[T]he first network controlling unit exchanges information with the
`fourth network controlling unit, and the second network controlling
`unit exchanges information with the third network controlling unit.
`
`See Dec. 21-22(emphasis added).
`Claim 9 recites virtually the same limitation regarding “exchanges
`information” as follows:
`wherein the first network controlling unit in the first RAID controlling unit
`exchanges information with the second network controlling unit in the
`second RAID controlling unit, and the second network controlling unit in the
`first RAID controlling unit exchanges information with the first network
`controlling unit in the second RAID controlling unit.
`
`
`(emphasis added). Because the evidence presented regarding the “exchanges
`information” limitation was insufficient, the Board determined that Petitioner was
`not likely to prevail in showing a reasonable likelihood that dependent claim 4 and
`independent claim 9 would have been obvious over Weygant, Mylex (Ex. 1007)
`and ServiceGuard (Ex. 1004). Dec. 22-23. As a result, the Board did not institute
`inter partes review on claims 4 and 9. Id. at 24. Petitioners request
`reconsideration of that part of the Decision. Rehearing Req. 1.
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`IPR2013-00635
`Patent 6,978,346 B2
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`Petitioners contend that the Board misapprehended or overlooked the
`portions of Weygant cited in the Petition that teach the aforementioned claim
`limitation. Rehearing Req. 2. Specifically, Petitioners contend that, because
`Weygant discloses “heartbeats,” the “exchange information” limitation is met. Id.
`Further, Petitioners contend that the Board does not specifically address statements
`made in the declaration of Dr. Mercer (Ex. 1006) regarding the “heartbeats”
`discussed in Weygant. Rehearing Req. 2-3. For the reasons set forth below,
`Petitioners’ request for rehearing is denied.
`II. ANALYSIS
`When rehearing a decision on institution, the Board reviews the decision for
`an abuse of discretion. 37 C.F.R. § 42.71(c). An abuse of discretion may be
`indicated if a decision is based on an erroneous interpretation of law, if a factual
`finding is not supported by substantial evidence, or if the decision represents an
`unreasonable judgment in weighing relevant factors. Star Fruits S.N.C. v. U.S.,
`393 F.3d 1277, 1281 (Fed. Cir. 2005); Arnold P’ship v. Dudas, 362 F.3d 1338,
`1340 (Fed. Cir. 2004); In re Gartside, 203 F.3d 1305, 1315-16 (Fed. Cir. 2000).
`The request for rehearing must identify, specifically, all matters the party believes
`the Board misapprehended or overlooked. 37 C.F.R. § 42.71(d).
`Petitioners’ request is based on two arguments: (1) that that the Board made
`a “technical observation of Weygant”; and (2) that the Board failed to address the
`opinion of Dr. Mercer. Rehearing Req. 3.
`Regarding the first argument, Petitioners allege an abuse of discretion in the
`Board’s determination that the “heartbeat messages” of Weygant are not an
`exchange of information between one node and a “different node.” Id. at 4 (citing
`Dec. 22). The Decision states that we were not persuaded that Petitioners’
`evidence supported the contention that the Weygant “heartbeat messages” meet the
`
`3
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`IPR2013-00635
`Patent 6,978,346 B2
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`limitation. Dec. 22. That evidence, as pointed out in the Request for Rehearing, is
`found in the portion of Weygant set out below.
`In a cluster, the high availability software establishes a
`communication link known as a heartbeat among all the nodes in the cluster
`on a subnet known as the heartbeat subnet. These messages allow the high
`availability software to tell if one or more nodes has failed. This special use
`of networking must itself be protected against failures. Points of failure in
`the heartbeat subnet include the LAN interfaces and cables connected to
`each node.
`
`Ex. 1003, 76 (emphasis added). From this passage, Petitioners conclude that the
`“heartbeat messages” are transmitted and received from one node to another.
`Rehearing Req. 4. But the inferences drawn from the passage support a conclusion
`inconsistent with Petitioners’ contention. Weygant states that the high availability
`software—which establishes the communication link for the “heartbeat
`messages”—resides in all the nodes. Ex. 1003, 55. Thus, when the passage
`describes that “the high availability software” can “tell if one or more nodes has
`failed,” Ex. 1003, 76, the focus is on the software generally, not on whether any
`particular node or multiple nodes receive the “heartbeat messages” of different
`nodes. This general description of the software may be regarded as a preview of
`the node-failure detection borne by the same-node LAN-card failover examples
`that Petitioners rely on in the Petition. See Pet. 14-15 (relying on pages 66, 131
`and figs. 2.10, 2.12, 4.1-4.4 of Weygant, all of which are directed to switching
`communications from a failed active-LAN interface to a standby-LAN or
`redundant-active-LAN interface in the same node); Pet. 37-39 (relying on pages
`76, 131, and figs. 2.10, 2.12 of Weygant). None of the other portions and
`examples cited in the Petition and relied on by Petitioners clarifies the passage
`further with regard to the role of the “heartbeat messages” when the high
`
`4
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`IPR2013-00635
`Patent 6,978,346 B2
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`availability software “tell[s] if one or more nodes have failed.” Absent more
`particularized evidence in that regard, the cited portion of Weygant provides
`sufficient factual support for the Board’s conclusion that the “heartbeat messages”
`are received at the LAN interface in one node, but not transmitted to a LAN
`interface of another node. See Dec. 21-22.
`As for the second argument, we are not persuaded by Petitioners’ argument
`that the Board misapprehended or overlooked Dr. Mercer’s opinion that Weygant
`teaches the “exchanges information” limitation. Rehearing Req. 4. Dr. Mercer, in
`forming his opinion, relies on the same passages in Weygant described above. Id.;
`Ex. 1006, 109-110 (citing Ex. 1003, 60). According to Petitioners, Dr. Mercer’s
`declaration shows that the “heartbeat messages are transmitted and received
`reciprocally node-to-node” (Rehearing Req. 5) as noted in the following portion of
`the declaration:
`See Weygant at p. 60 (“In a cluster, the high availability information
`software establishes a communication link known as a heartbeat among all
`the nodes in the cluster on a subnet known as the heartbeat subnet. These
`messages allow the high availability software to tell if one or more nodes has
`failed.”), disclosing that the nodes send heartbeat signals to
`each other.
`
`Ex. 1006, 109-110(emphasis in original). Petitioners contend that the Board has a
`“technical misunderstanding of Weygant” because we focused on “one type of
`hardware failure . . . while not appreciating Weygant’s teaching with respect to
`other types of hardware failures.” Rehearing Req. 5-6.
`We are not persuaded that page 60 of Weygant (labeled by Petitioner as page
`76 of Ex. 1003) explicitly teaches that which we find lacking: LAN interfaces in
`different nodes transmitting and receiving, reciprocally. In his declaration, Dr.
`Mercer does not mention the last two sentences of this disclosure in Weygant. The
`
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`IPR2013-00635
`Patent 6,978,346 B2
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`omitted two sentences state that the messages allow the “high availability
`information software” to detect failures of nodes, LAN interfaces and cables
`connected to each node. Ex. 1003, 76. As explained above, we determined that
`the evidence advanced by Petitioners does not support the contention that Weygant
`discloses exchanging information between nodes. The cited subject matter from
`Weygant establishes only that the high availability software establishes a
`communication link. How that link is utilized for the software to “tell if one or
`more nodes have failed” remains undefined. Specifically, Petitioners have not
`explained how the mere presence of the link in Weygant teaches anything more
`than detection, by the software, of the presence of nodes. Weygant does not
`describe the “heartbeat messages,” indicate whether they contain any information,
`or state whether any information is exchanged from one node to another. Thus,
`Petitioner has not shown it is reasonably likely to prevail in demonstrating
`unpatentablity on this basis.
`Furthermore, the Petition makes no mention and Dr. Mercer’s declaration
`does not rely on other points of failure alleged to be described at page 60 of
`Weygant. See Rehearing Req. 6 (addressing “points of failure” as including “node
`failure.”). Petitioners attempt in the Request to cast the “node failure” detection as
`disclosing the exchange of information between nodes does not persuade us that
`we misapprehended or overlooked the evidence presented in the Petition. The
`Petition does not present sufficient evidence regarding the “node failure”
`contentions now presented in the Request, and the cited pages of Dr. Mercer’s
`declaration are silent concerning the exchange of information in the case of any
`such failure. See Pet. 14-15, 37-39.
`
`
`
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`6
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`IPR2013-00635
`Patent 6,978,346 B2
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`
`III. CONCLUSION
`For the foregoing reasons, the Board did not abuse its discretion when
`determining that Petitioners did not demonstrate a reasonable likelihood of
`prevailing on their assertion that claims 4 and 9 are unpatentable based, in part, on
`Weygant. Accordingly, Petitioners’ request for rehearing is denied.
`IV. ORDER
`Petitioners’ Request for Rehearing is denied.
`
`
`
`
`
`
`7
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`IPR2013-00635
`Patent 6,978,346 B2
`
`FOR PETITIONERS:
`Lead Counsel
`David McCombs
`david.mccombs.ipr@haynesboone.com
`
`Back-up Counsel
`Andrew S. Ehmke
`andy.ehmke.ipr@haynesboone.com
`Thomas W. Kelton
`Thomas.kelton.ipr@haynesboone.com
`John Russell Emerson
`Russell.emerson.ipr@haynesboone.com
`
`
`FOR PATENT OWNER:
`Lead Counsel
`Mathew Phillips
`matthew.phillips@renaissanceiplaw.com
`
`Back-up Counsel
`Alexander Giza
`agiza@raklaw.com
`Derek Meeker
`derek.meeker@renaissanceiplaw.com
`
`
`
`
`
`
`
`
`8
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`
`
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