Paper No. 32
`Entered: April 8, 2015
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`Trials@uspto.gov
`572-272-7822
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`RELOADED GAMES, INC.,
`Petitioner,
`
`v.
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`PARALLEL NETWORKS, LLC,
`Patent Owner.
`____________
`
`Cases IPR2014-00136 and -00139
`Patents 7,188,145 and 7,730,262
`____________
`
`Held: February 23, 2015
`____________
`
`
`
`Before: KRISTEN L. DROESCH, BRIAN MCNAMARA, and
`HYUN J. JUNG, Administrative Patent Judges.
`
`
`
`The above-entitled matter came on for hearing on Monday,
`February 23, 2015, commencing at 1:30 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`Entered: April 8, 2015
`
`Trials@uspto.gov
`572-272-7822
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`RELOADED GAMES, INC.,
`Petitioner,
`
`v.
`
`PARALLEL NETWORKS, LLC,
`Patent Owner.
`____________
`
`Cases IPR2014-00136 and -00139
`Patents 7,188,145 and 7,730,262
`____________
`
`Held: February 23, 2015
`____________
`
`
`
`Before: KRISTEN L. DROESCH, BRIAN MCNAMARA, and
`HYUN J. JUNG, Administrative Patent Judges.
`
`
`
`The above-entitled matter came on for hearing on Monday,
`February 23, 2015, commencing at 1:30 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`Cases IPR2014-00136 and -00139
`Patents 7,188,145 and 7,730,262
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`ERIC A. BURESH, ESQ.
`MARK LANG, ESQ.
`Erise IP
`6201 College Boulevard, Suite 300
`Overland Park, Kansas 66211
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`ON BEHALF OF THE PATENT OWNER
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`
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`DARREN COLLINS, ESQ.
`AARON J. PICKELL, ESQ.
`ROBERT C. HILTON, ESQ.
`McGuire Woods, LLP
`2000 McKinney Avenue, Suite 1400
`Dallas, Texas 75201
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`JUDGE MCNAMARA: Please be seated. Good afternoon,
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`everyone. This is the oral hearing in IPR2014-00136, and we're
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`consolidating that with the hearing in IPR2014-00139, both Reloaded
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`Games versus Parallel Networks. Is that the case everyone's here for?
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`ALL COUNSEL: Yes, Your Honor.
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`JUDGE MCNAMARA: That's a good sign.
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`Okay, if I could please have the -- starting with the
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`Petitioner, counsel, could you introduce yourselves?
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`MR. BURESH: Yes, Your Honor, Eric Buresh and Mark
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`Lang on behalf of Petitioner.
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`MR. COLLINS: And it's Darren Collins, Aaron Pickell, and
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`Robert Hilton, on behalf of Parallel Networks, the Patent Owner.
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`JUDGE MCNAMARA: Okay. We have no motions or
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`other matters pending before us today, just the arguments on the case
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`in chief. So, the Petitioner will go first, present its case with regard to
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`the challenged claims on which we instituted trial, and then the Patent
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`Owner will argue its opposition to the Petitioner's case, and then the
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`Petitioner can use any time it reserved to rebut the Patent Owner's
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`opposition.
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`Is everybody ready to begin?
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`MR. BURESH: Yes, Your Honor.
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`MR. COLLINS: Yes, Your Honor.
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`THE COURT: All right. We will hear first from Petitioner.
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`Is there some amount of time you would like me to --
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`MR. BURESH: Let me ask logistically, should we --
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`because there are two proceedings consolidated, should we argue one
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`fully and then proceed to the next or would you like to --
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`JUDGE MCNAMARA: I think we would prefer to have
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`you just make the arguments on the two patents together instead of
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`starting and stopping and starting and stopping. Is that all right?
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`MR. BURESH: That is perfectly fine. So, I will reserve 20
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`minutes for rebuttal.
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`JUDGE MCNAMARA: Okay.
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`MR. BURESH: May I approach with demonstratives?
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`JUDGE MCNAMARA: Sure, please.
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`MR. BURESH: Your Honors, if it pleases the Board, I will
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`start out with proceeding 2014-139, which relates to the '262
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`challenged patent. And I believe as you go through the briefing in this
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`particular proceeding, you will see that there is primarily one term of
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`claim construction. So, I'm going to focus my time with respect to the
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`'262 patent on that claim construction issue, and it relates to the term
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`"master." It relates to the term "master," and I think this permeates
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`the -- both of the limitations that are being challenged with respect to
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`the '262 patent. So, I'm going to dive right in.
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`In the Institution Decision, the Board preliminarily found
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`that the term "master" should be construed as "a peer that provides
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`administrative support to other peers." That is at the Institution
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`Decision at page 7.
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`That definition was taken from the patent specification at
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`column 18 in lines 38 through 41, and I believe that was an
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`appropriate place to cite for purposes of that definition, and I want to
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`note a point of -- having read the Patent Owner's response -- a patent
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`of clarification that I would like to make.
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`At page 15 of their response, their briefing goes through a
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`series of responsibilities that a master could do, and in their briefing,
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`they say, "after listing several tasks attributable to the master...the
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`specification states that 'master is further responsible for providing
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`administrative support to the community ...'"
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`Now, that quote and the way the quote was structured in the
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`brief makes it appear that there are tasks attributable to the master and
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`then, in addition, there are administrative tasks or administrative
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`support that the master can provide. That is not an accurate reading of
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`what the specification actually states.
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`At Column 18, lines 38 through 41 of the '262 patent, we see
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`that the actual description is "In addition to the functionality provided
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`by members, master is further responsible for providing
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`administrative support to community." So, what we see out of the
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`specification is the concept that you can have a master that is also a
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`member of the community. It has the characteristics of a member, and
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`in addition to what it does as a member, it also serves the
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`administrative role to support the community.
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`Cases IPR2014-00136 and -00139
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`That is why it is -- this portion of the specification is the
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`distinguishing factor. It's what distinguishes a member from the
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`master and is why, in the broadest reasonable interpretation, that this
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`is a perfect way to describe the role of the master.
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`Now, there are a number of different examples we see in the
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`specification of the '262 patent that would fall within this penumbra of
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`administrative support. We see the concept that Parallel wants to
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`focus on or the Patent Owner wants to focus on, which is the idea of
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`adding new members to a community. We also see processing related
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`to how to remove members from a community. We see processing
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`relating to how to reallocate content within a cache community. We
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`see examples of how to balance a cache community and deal with
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`unexpected departures from a cache community.
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`There are a whole plethora of activities that are described
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`with respect to the master, and I would submit to the Board that it is
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`inappropriate to select one of those roles and make that a requirement
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`on the claims, claims that do not otherwise require that specific
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`characteristic.
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`When we look at Patent Claim 1 of the '262 patent -- and I'll,
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`I believe, on the next slide look at a figure describing this -- but in this
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`claim we see that the master is called out, and it is called out as
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`receiving a location request and providing a response to the location
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`request. In other words, a peer may come to the master and say,
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`where is cached content? The master will respond with an
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`identification of where the peer can go to retrieve the cached content.
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`That is the role of the master in this particular claim.
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`We see in Figure 8 a description of that particular
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`functionality of the master. At 410, we see the master. We see the
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`master receiving the location request at 550. We see the master
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`providing a location response in 554. This description in Figure 8 is
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`consistent with the claimed embodiment in this particular patent.
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`Again, there other functionalities of a master, but the question for
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`present purposes, in addressing the challenged claims, is what is
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`required by those claims? What is required by the claims is described
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`in Figure 8.
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`Chase teaches that specifically. Chase includes a server,
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`that's called a directory server. The directory server is queried to
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`determine if it has the appropriate cached data. If it does, it provides
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`identification of where you can go to retrieve that cached data. That is
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`the description on which the Board instituted, and that is the
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`description of Chase that renders the challenged claims of the '262
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`patent invalid.
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`Now, what is the Patent Owner's argument? This is taken
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`from Patent Owner response at page 17 of their brief: "Since neither
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`the directory server nor any other device disclosed by Chase is 'a
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`device that determines whether to allow a client to join the cache
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`community,' Chase does not disclose a master as required by Claim
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`Cases IPR2014-00136 and -00139
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`That, of course, presumes that a master as required by Claim
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`1 must be a device that determines whether to allow a client to joint
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`the cache community, and as I've noted, that particular requirement is
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`but one example of what a master could do. There is absolutely no
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`basis in the '262 patent to limit a master, by definition, to that
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`functionality.
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`Chase, in view of --
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`JUDGE MCNAMARA: Counsel, just one quick item that
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`will make it easier for us when we're looking through the transcript. If
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`you could identify, as you're discussing, what demonstrative you are
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`referring to. I think the last one was number 9.
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`MR. BURESH: DX 9, yes, it was.
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`JUDGE MCNAMARA: And this one is 10, right?
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`MR. BURESH: Thank you, Your Honor.
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`JUDGE MCNAMARA: We're talking about the
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`demonstratives in the 139 case, right? Okay.
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`MR. BURESH: DX 10 introduces the combination of Chase
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`and Scharber, and Chase and Scharber, the combination, was
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`introduced or proposed for purposes of, turning to DX 11, picking up
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`the concept from Claim 2 and other associated dependent claims, that
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`when content is unavailable at an identified peer, Claim 2 states that
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`that particular peer will then go and retrieve the content essentially for
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`the requesting peer. That is Claim 2 and the associated claims.
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`Patent Owner has contended that that combination is
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`improper because, according to Patent Owner, Chase has no need to
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`Cases IPR2014-00136 and -00139
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`consult with a second peer device, because according to Patent
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`Owner, Chase already knows beforehand that the second peer device
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`does not have the requested content available. And I'm referring to
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`DX 12. That generally is true in Chase.
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`However, what we've cited in our petition and what the
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`Board instituted with respect to was the disclosure of Chase cited on
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`DX 13, Column 6, lines 21 through 31, where Chase describes a
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`situation where if the requesting station is unable to retrieve the data
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`from the other station, for example, because the other station is down
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`or because the data, for whatever reason, have been" -- I believe that's
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`a [sic] -- "have been deleted from the cache of the other station, it
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`informs the server, and then we add the teachings of Scharber, where
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`the second server will go to retrieve the content.
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`That was the proposed combination, and it works perfectly
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`when you understand the teachings of Chase actually permit and
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`describe a scenario where the data has been deleted, the selected
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`station is down, and you need to then figure out how to go and get the
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`cached data from another station. Scharber provides the solution for
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`that.
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`And that is the points I wanted to make in my introductory
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`comments with respect to the '262 patent. So, unless there are further
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`questions, I'll transition to the '145 patent, which is the 2014-136
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`proceeding.
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`JUDGE JUNG: Mr. Buresh, before you continue, I would
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`like to ask you some questions about the construction of "master."
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`Cases IPR2014-00136 and -00139
`Patents 7,188,145 and 7,730,262
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`Now, as you already noted, we picked out a certain part of the
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`specification for our broadest reasonable interpretation of "master" in
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`this decision to institute, but how would you respond to the Patent
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`Owner's argument that that might not be the broadest reasonable
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`interpretation in view of the specification?
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`The Patent Owner cites various parts of the -- actually, the
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`majority of the specification that talks about where the master decides
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`which client should be allowed into the cache community and which
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`client should not be allowed in the cache community.
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`MR. BURESH: I would respond, and I hope that I've
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`covered this slightly, but I will re-emphasize a couple of points.
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`Even when we look at the specification portions that the
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`Patent Owner will cite to, you're going to see, generally speaking, a
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`couple of different functionalities that the master can perform.
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`For instance, you will see that there is the description of
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`allowing or determining whether to allow a client to joint the
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`community. In the same sentences, you'll find removal of a client
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`from a cache community. Should we also build in the concept, into
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`the definition of "master," that a master must determine how to
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`remove a client from a cache community?
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`JUDGE JUNG: Let's say we just build in the -- what's
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`described in the specification, that there's a function that allows a
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`client to enter the cache community. There's also a -- I'm sorry, but
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`Cases IPR2014-00136 and -00139
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`cache community. So, why shouldn't we also include those other
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`functions mentioned in the specification?
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`MR. BURESH: Precisely because of claim construction
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`standards. You're importing limitations from the specification into the
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`claims that are not otherwise claimed. The concept of a master is a
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`broad concept that does many things in the '262 patent. It has multiple
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`functionalities. If you were to take each individual one of those and
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`rewrite the claims to specify that the master must perform those full
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`penumbra of functionalities, you would have rewritten the claims to
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`require limitations that simply are not there.
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`In the vast majority of patents, as you know, Your Honor,
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`there is a description of multiple functionalities for any given system.
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`It is the Patent Owner's choice to claim the functionalities that they
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`desire to claim for their invention. No single claim has to claim all
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`functionalities. In fact, as we see in this particular case, there are
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`often other patents that claim other functionalities.
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`We'll see here that we have a divisional patent that claims
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`allowing or determining whether to allow a client to join a
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`community. That limitation is not found in the '262 patent. That was
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`a decision by the Patent Owner not to claim that functionality, and it
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`would be wholly improper, under prevailing standards, to inject that
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`limitation into the claims.
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`JUDGE JUNG: Thank you.
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`One other thing. The specification also mentions that the
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`Cases IPR2014-00136 and -00139
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`other administrative task include the allowing a client into a cache
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`community?
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`MR. BURESH: It would include that. It does not require
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`that. In other words, there are -- there are --
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`JUDGE JUNG: Just to clarify, you're saying the claims do
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`not require that with respect to -- or the specification does not require
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`that?
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`MR. BURESH: Neither requires that. The specification
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`doesn't state that a master is not a master if it doesn't allow a client --
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`make a determination of whether to allow a client could to join a
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`community. It doesn't say that in the negative. It says that a master
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`can do that. The claims certainly do not require that functionality.
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`JUDGE MCNAMARA: But that would -- that is a possible
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`functionality of the master, a possible administrative function that
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`would be performed by a master.
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`MR. BURESH: No dispute there at all. It is one among
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`many of the possible functionalities of a master. Allowing a client to
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`join a community, removing a client from a community, allocating
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`cached content within a community, those are all possibilities of what
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`a master can do, and at that point it is the Patent Owner's decision as
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`to which of those functionalities to specific claim.
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`Here we see that the claimed functionality, again, is a
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`decision of processing information requests and providing responses
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`to those information requests identifying where cached content may
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`Patents 7,188,145 and 7,730,262
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`be found. That is the claimed functionality of a master in this
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`particular patent.
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`Transitioning now to proceeding 2014-136, and here we're
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`dealing with a combination of Smith and Inohara that is the
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`combination applied to all of the claims on which this proceeding was
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`instituted, and the specific disputed limitations I'm going to be talking
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`about are allowing a client to join the cache community -- again, this
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`is the '145 patent, not the '262 patent -- and selecting one of the
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`communities to attempt to join, which we'll see in the later claims,
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`though I'll pick that up separately.
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`Here, looking first at Claim 1, I've highlighted the concepts
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`and where they're found in the claim. We see in Claim 1 "allowing a
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`client to join the cache community" is one of the steps of the method
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`claim, and then Claim 2 further specifies that there is a step of
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`"determining whether to allow the client to join the cache
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`community." I will treat these as one as we go through the
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`proceeding, because the issues are really -- really the same with
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`respect to both of those concepts.
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`I'm now on DX 5, for the record, and this slide --
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`demonstrative provides the two claim constructions that were offered
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`by the Board in its Institution Decision. First, with respect to the
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`concept of allow or allowing, the Board has preliminarily stated that
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`the proper BRI construction is to "permit the presence of." With
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`respect to the word "community" -- the term "community," excuse
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`Cases IPR2014-00136 and -00139
`Patents 7,188,145 and 7,730,262
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`me, we have a "similarity or identity" or "sharing, participation, and
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`fellowship."
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`I am going to speak first with respect to Inohara, and let me
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`just back up a step and describe this combination. Smith has
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`essentially the meat of these claim limitations with respect to what the
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`cache system is doing. What it does not have, Smith is a single array
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`of servers, and it does not describe how to -- how to add new servers
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`to that array. They're just -- they just come into existence. It doesn't
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`really describe that process.
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`So, what Inohara describes is a concept of how you would
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`restrict the size of the community so that there is a decision, an
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`explicit decision whether or not to allow a server to join the
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`community. We're taking that teaching from Inohara and combining
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`it with the -- essentially the infrastructure from Smith. With respect to
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`allowing, Inohara's disclosure is extremely similar to the disclosure of
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`the '145 patent.
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`At DX 6, on the left-hand side of the slide, we reference the
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`'145 patent at Column 20, at lines 51 through 55, where we see the
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`master making a decision about whether the addition of a client would
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`exceed the maximum numbers of members that may be in a
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`community. So, there's a desirable size cap described in the '145
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`patent.
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`That same desirable size cap is described in Inohara. This is
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`with respect to the concept of a server group. The judgment is made
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`in Inohara whether or not the sum of the number of old members and
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`Cases IPR2014-00136 and -00139
`Patents 7,188,145 and 7,730,262
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`the number of new members is smaller than the max mentioned
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`earlier.
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`Going to DX 7 and referring to the right-hand side to
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`continue the thought from Inohara, the judgment is made of whether
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`or not the addition of one to the number of old members is smaller
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`than max. In other words, if we're going to add one new member and
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`that will cause us to exceed the maximum allowable in a server group,
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`what happens? If the judgment is no, a new group is formed. So, you
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`cannot go into the existing group; you form a new group.
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`That's the same teaching or corresponding teaching with
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`respect to the '145 patent, where, at Column 13, lines 33 through 36, it
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`is described that in a circumstance where you cannot join a
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`community, the cache module may attempt to start its own cache
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`community. So, you start a new group.
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`Moving to slide DX 9, I'm going to go to what I think is the
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`core issue in this case, and this particular dispute is raised by the
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`Patent Owner, which is Inohara's community. We have contended in
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`our petition and the Board has found in the Institution Decision that
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`the server group of Inohara is a community, because the members of
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`each server group have similarity or identity with each other and they
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`cache content within -- essentially within the group.
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`Now, PO's response, the Patent Owner's response, as I
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`pulled from paper 23 at page 20, "A single server group [of Inohara]
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`is not a cache community," would be their contention, and I think that
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`is at the heart of the debate in this particular proceeding.
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`Cases IPR2014-00136 and -00139
`Patents 7,188,145 and 7,730,262
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`I want to cover the two concepts that were introduced by the
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`Board in its construction of "community." First, the idea of similarity
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`or identity. In Inohara, we have a group that is defined within a group
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`table. You have a leader server ID and then the server IDs of the
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`members of the group. Each member's group table has the exact same
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`list of a leader server ID and the group member IDs. That is a
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`similarity. You identify the group by whether you're in the particular
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`group table listing. That gives you a definable characteristic that is
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`similar and shared between all of the participants in the server group.
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`With respect to sharing participation and fellowship,
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`Inohara, at 15:19 through 21 -- and I'm on DX 11 now -- in order to
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`update the cache directory of the group, the server acquiring new
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`information transmits a host URL message to members of the group.
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`This is talking about -- and I would encourage the Board, if you're
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`interested, to read above and below this description in Inohara to
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`understand how the cache directories work within a server group in
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`Inohara, but this is kind of the conclusion.
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`And when new data is added, the cache directory of the
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`group is updated, and the new cache directory is circulated within the
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`group. That is sharing and participation and fellowship within the
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`context of caching.
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`So, I would contend and have contended in the petition, and
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`I believe as the Board has found in the Institution Decision, that
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`Inohara does teach the concept of allowing, it does teach the concept
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`of specifically allowing entry into a community in a caching context,
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`Cases IPR2014-00136 and -00139
`Patents 7,188,145 and 7,730,262
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`and, therefore, is combinable to satisfy that limitation in addition to
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`the other teachings of Smith.
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`Patent Owner then contends that essentially Inohara
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`becomes inoperable if we put a cap on membership, because the
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`overarching point, according to Patent Owner, of Inohara is one of
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`inclusiveness. In other words, Inohara describes a hierarchical
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`architecture where you will have groups, server groups, but those
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`server groups fit within a broader structure so that, at the end of the
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`day, nobody is denied entry into the overall hierarchical structure.
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`They may be denied entry into a server group, but they are still going
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`to fit in somewhere, into the hierarchical structure.
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`And that may be a rough paraphrase. We will certainly hear
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`more from Patent Owner on how they would describe that, but that's
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`my take on it.
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`And their point would be, with respect to Inohara, if we look
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`at the server groups and cap the size of those, it cuts against that
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`teaching of Inohara and, therefore, renders it inoperable. I believe
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`that's a complete red herring argument, because -- two main reasons:
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`We're not modifying the community in Inohara. That's not
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`the proposed combination. The proposed combination we're looking
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`at is Smith, which has an array of servers that can be added to, and it
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`doesn't describe when to stop it. We apply the teaching from Inohara
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`to Smith to provide a cap on the size of the server array in Smith.
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`There's nothing inoperable about Inohara. We're taking the teachings
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`from that and applying them to a community that's described in Smith.
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`Cases IPR2014-00136 and -00139
`Patents 7,188,145 and 7,730,262
`
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`And secondarily, Inohara itself expressly teaches restricting
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`the admission to a server group based on a max size. That is an
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`express, undisputable teaching from Inohara, and I simply do not
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`understand how an express teaching from Inohara can itself render
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`Inohara inoperable. That doesn't make sense to me.
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`And, again, I would reserve additional time to rebut
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`whatever I hear from the Patent Owner with respect to that point.
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`The additional claim limitation I talked about at the
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`beginning is the idea of selecting one of the communities to attempt to
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`join and generating a join request for that community, which is first
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`found in Claim 29, but it is in several other claims as well, as I've
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`shown on DX 14.
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`I'm not going to belabor this point significantly, because the
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`argument essentially is the exact same argument. Patent Owner states
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`that you cannot select from multiple communities because Inohara
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`teaches only one community, the hierarchical, broadest possible
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`community. And, again, the teachings here line up very, very well.
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`The idea of selecting from Inohara is done exactly on the same basis
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`as what's described in the '145 patent.
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`In the '145 patent, we see latency being the main test to
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`determine which community you want to join. In Inohara, we see
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`latency being the primary test to determine which server group you
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`want to attempt to join. So, the teachings -- the overlapping between
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`those teachings is phenomenal, it lines up very closely, and I see no
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`basis for Patent Owner's argument in this respect.
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`Cases IPR2014-00136 and -00139
`Patents 7,188,145 and 7,730,262
`
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`Again, that was my -- the comments I wanted to introduce.
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`I'll reserve the rest of my time for rebuttal, but first, I'm happy to
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`answer any questions the Board may have.
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`JUDGE JUNG: Mr. Buresh, in your reply, it didn't seem
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`like you directly addressed why the hierarchy can't be a cache
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`community, but can you address that now? Why can't the hierarchy in
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`Inohara be the recited cache community of the claims?
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`MR. BURESH: Why can't the -- I'm sorry.
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`JUDGE JUNG: The hierarchy in Inohara be the cache
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`community, because they bring up some good points, you know, a
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`group -- or, I'm sorry, a group of Inohara is just a subset of that
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`hierarchy, it only stores a portion of the cache, and if you send in a
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`request for cache community, you might not get it from that particular
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`group. You would have to go back to the hierarchy to find it.
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`MR. BURESH: Well, if we look at the teachings of Inohara,
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`I'm going to first answer your question, and then I will follow up by
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`making sure that we're asking the right questions, if that's okay.
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`So, with respect to -- with respect to Inohara -- thank you.
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`Within the context of caching data and retrieving the cached data,
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`we're really -- the description of that is at Column 14 of Inohara, and
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`it begins at about line 53. The heading there is "Search for Cache --
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`Search of Cache and Propagation of Cache Directory."
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`And what you are going to see in that description is that you
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`search for cached content within your group, within the cache
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`directory of your group, if your group does not have the requested
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`Cases IPR2014-00136 and -00139
`Patents 7,188,145 and 7,730,262
`
`content in the cache directory, you proceed to external servers, which
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`are described as, I believe, 13 in Inohara.
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`So, you're literally looking within your group for cached
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`content, and then, just like the '145 patent, if it's not in your group,
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`you go to external servers to retrieve it, and then you subsequently
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`update your cache to identify that new cached material. That is just
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`like the asserted patent here or the contested patent, where you have a
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`community, and if you search within your community and you do not
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`find the content, you go to an origin server and obtain the content.
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`The teachings are very, very similar.
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`The real and I would say only distinction between the patent
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`in this case and Inohara is that in Inohara a member of one group may
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`also be the member of another group, and that's how your hierarchy
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`essentially forms when you describe the hierarchy. But there's an
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`interesting passage in Inohara. It's, again, at Column 14, but this time
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`I'm backing up to 24.
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`It says: "By structuring a multicast hierarchy dynamically
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`by virtue of mutual support, a change in the operating conditions of
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`other servers and the change in communications feed are grasped
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`without needing a central server. By limiting server information to be
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`propagated to information of proximate servers and remote servers not
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`larger in number than a fixed number and making the number of
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`destinations of propagation not larger than a fixed number in
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`accordance with the structure of a multicast hierarchy, communication
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`Cases IPR2014-00136 and -00139
`Patents 7,188,145 and 7,730,262
`
`for management does not explode even if the number of servers
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`become large."
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`Okay. Now, I will leave you to reread that on your own, but
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`the point of that passage is simply sa
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