Trials@uspto.gov
`571-272-7822
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`Paper 12
`Entered: May 16, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DELL INC., HEWLETT-PACKARD COMPANY, and NETAPP, INC.,
`Petitioners,
`
`v.
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`ELECTRONICS AND TELECOMMUNICATIONS RESEARCH
`INSTITUTE,
`Patent Owner.
`____________
`
`Case IPR2014-00152
`Patent 6,978,346 B2
`
`
`
`Before BRIAN J. McNAMARA, MIRIAM L. QUINN, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`ANDERSON, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`571-272-7822
`
`
`
`
`
`
`
`Paper 12
`Entered: May 16, 2014
`
`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 IPR2014-00152
`Patent 6,978,346 B2
`
`
`
`Before BRIAN J. McNAMARA, MIRIAM L. QUINN, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`ANDERSON, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`Case IPR2014-00152
`Patent 6,978,346 B2
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`I. INTRODUCTION
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`On November 15, 2013, Dell, Inc., Hewlett-Packard Company and
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`NetApp, Inc. (collectively “Petitioners”) filed a Petition requesting an inter
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`partes review of claims 1 through 9 of U.S. Patent No. 6,978,346 B2
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`(Ex. 1001, “the ’346 patent”). Paper 2 (“Pet.”). Electronics and
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`Telecommunications Research Institute (“Patent Owner”), filed a
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`Preliminary Response. Paper 11 (“Prelim. Resp.”). We have jurisdiction
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`under 35 U.S.C. § 314.
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`The standard for instituting an inter partes review is set forth in
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`35 U.S.C. § 314(a), which provides as follows:
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`THRESHOLD.—The Director may not authorize an inter
`partes review to be instituted unless the Director determines
`that the information presented in the petition filed under section
`311 and any response filed under section 313 shows that there
`is a reasonable likelihood that the Petitioners would prevail
`with respect to at least 1 of the claims challenged in the
`petition.
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`Upon consideration of the Petition and Preliminary Response, we
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`determine that the information presented in the Petition shows that there is
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`not a reasonable likelihood that Petitioners would prevail in showing
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`unpatentability of claims 1-9 of the ’346 patent. Accordingly, pursuant to 35
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`U.S.C. § 314, we decline to institute an inter partes review of claims
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`1-9 of the ’346 patent.
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`A. Related Proceedings
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`The ’346 patent is involved in the following co-pending cases: Safe
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`Storage LLC v. StoneFly, Inc., 1-13-cv-01152; Safe Storage LLC v. Int’l
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`Business Machines Corp., 1-13-cv-0 1151; Safe Storage LLC v. Emulex
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`Corporation, 1-13-cv-01150; Safe Storage LLC v 3PAR Inc., 1-13-cv-
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`01088; Safe Storage LLC v Oracle America Inc., 1-13-cv-01089; Safe
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`Storage LLC v ATTO Technology Inc., 1-13-cv-01090; Safe Storage LLC v.
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`VMware Inc., 1-13-cv-00928; Safe Storage LLC v. Promise Technology Inc.,
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`1-13-cv-00927; Safe Storage LLC v. Nexsan Corporation, 1-13-cv-00931 ;
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`Safe Storage LLC v. Overland Storage Inc., 1-13-cv-00932; Safe Storage
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`LLC v. IQSS LLC, 1-13-cv-00930; Safe Storage LLC v. Infortrend
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`Corporation, 1-13-cv-00929; Safe Storage LLC v. Cisco Systems Inc., 1-13-
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`cv-00926; Safe Storage LLC v. Silicon Graphics Int’l Corp., 1-12-cv-0
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`1629; Safe Storage LLC v. Dot Hill Systems Corp., 1-12-cv-01625 ; Safe
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`Storage LLC v. Hitachi Data Systems Corp., 1-12-cv-01627; Safe Storage
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`LLC v. Dell Inc., 1-12-cv-01624; Safe Storage LLC v. NetApp Inc., 1-12-cv-
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`01628; Safe Storage LLC v. Hewlett-Packard Company, 1-12-cv-01626, all
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`pending in the United States District Court for the District of Delaware. Pet.
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`1-2.
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`Petitioners filed previously a Petition for Inter Partes review of the
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`‘346 patent, IPR2013-00635. We instituted an inter partes review of claims
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`1-3 and 5-8 of the ’346 patent. We diod not institute inter partes review of
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`claims 4 and 9 of the ’346 patent.
`
`B. The ’346 Patent
`
`The ‘346 Patent describes an apparatus with “redundant
`
`interconnection between multiple hosts and a redundant array of inexpensive
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`disks (hereinafter referred to as “RAID”).” Ex. 1001, Abstract. As a result
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`of the redundant interconnection, the apparatus allows increased bandwidth
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`in the event one of two RAID controllers 460 and 461 has a failure. Id. at
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`3:1-9.
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`Figure 4 of the ’346 patent is reproduced below:
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`
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`Figure 4 is a block diagram of a host matching system including
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`RAID 490 and its interconnection to host computers 400-405. Ex. 1001,
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`2:643:6. RAID 490 includes two RAID controllers 460, 461 and hubs 440,
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`441. Id. at 3:10-18. Each RAID controller includes a pair of network
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`interface controllers. For example, RAID controller 460 includes network
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`interface controllers 470, 471, and RAID controller 461 includes network
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`interface controllers 480, 481. Id. at 3:10-13. Each host computer has its
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`own network interface controller (410 to 415), which connects the host
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`computer through the hubs and to the network interface controllers (470,
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`471, 480, 481) of RAID controllers 460, 461. Id. at 3:31-34.
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`The ’346 patent describes that the result is two independent networks
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`with twice the bandwidth of a single network and a “communication
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`passage” between the two RAID controllers. Id. at 3:62-65. The
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`communication passage creates a “fault tolerant function” should one of
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`RAID controllers 460 or 461 fail. Id. at 3:64-66. According to Figure 4,
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`communications line 450 interconnects network interface controller 480 of
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`RAID controller 461 and network interface controller 470 of RAID
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`controller 460. Id. at 4:2-6; fig. 4. Then, RAID controller 461 may send
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`information to RAID controller 460. Id. In like manner, network interface
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`controller 471 of RAID controller 460 may be connected over
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`communication lines to network interface controller 481 of RAID controller
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`461, allowing RAID controller 480 to send information to RAID controller
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`461. Id. at 3:66-4:4.
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`By the arrangement described, the apparatus continues to operate in
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`the event either RAID controller 460 or 461 has an “occurrence of an error.”
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`Ex. 1001, 4:19-25. The interconnected network interface controller of the
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`operational RAID controller assumes the functions of the network interface
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`controller of the failed RAID controller. Id.
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`C. Illustrative Claim
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`Claims 1 and 9 are the challenged independent claims. Claim 1 is
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`reproduced below:
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`1. An apparatus for a redundant interconnection between multiple
`hosts and a RAID, comprising:
`
` a
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` first RAID controlling units and a second RAID controlling unit for
`processing a requirement of numerous host computers, the first RAID
`controlling unit including a first network controlling unit and a second
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`network controlling unit, and the second RAID controlling unit including a
`third network controlling unit and a fourth network controlling unit; and
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` a
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` plurality of connection units for connecting the first RAID
`controlling units and the second RAID controlling unit to the numerous host
`computers, wherein the first RAID controlling unit and the second RAID
`controlling unit directly exchange information with the numerous host
`computers through the plurality of connecting units, and the 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.
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`D. Prior Art Relied Upon
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`Petitioners rely upon the following prior art references.
`
`Author
`
`Title of Reference
`
`Date
`
`Exhibit
`
`TruCluster
`
`Sicola
`
`OpenVMS
`
`
`
`TruCluster Hardware
`Configuration
`US 6,601,187 B1
`
`Guidelines for OpenVMS
`Cluster Configurations
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`Apr. 2000
`
`Ex. 1003
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`Mar. 31, 20001
`
`Ex. 1004
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`Jan. 1999
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`Ex. 1005
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`E. The Alleged Grounds of Unpatentability
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`Petitioners allege the following grounds for unpatentability.
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`Claims
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`Grounds
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`References
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`1-9
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`1-9
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`§ 103(a)
`
`TruCluster and Sicola
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`§ 103(a)
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`OpenVMS
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`
`
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`1 Filing date, which Petitioners rely on for prior art purposes under 35 U.S.C.
`§102(e). Pet. 8.
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`II. ANALYSIS
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`A. Claim Construction
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`Principles of Law
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`In an inter partes review, claim terms in an unexpired patent are
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`interpreted according to their broadest reasonable construction in light of the
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`specification of the patent in which they appear. 37 C.F.R. § 42.100(b);
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`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14,
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`2012). The terms also are given their ordinary and customary meaning, as
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`would be understood by one of ordinary skill in the art in the context of the
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`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
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`2007). If an inventor acts as his or her own lexicographer, the definition
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`must be set forth in the specification with reasonable clarity, deliberateness,
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`and precision. Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d
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`1243, 1249 (Fed. Cir. 1998). An extraneous limitation should not be read
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`into the claims from the specification. E.g., E.I. du Pont de Nemours & Co.
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`v. Phillips Petroleum Co., 849 F.2d 1430, 1433 (Fed. Cir. 1988). An
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`extraneous limitation is one that, the presence of which in a claim, is
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`unnecessary for the purpose of making sense of the claim. See, e.g.,
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`Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1249 (Fed.
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`Cir. 1998); In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). The
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`construction that stays true to the claim language and most naturally aligns
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`with the inventor’s description is likely the correct interpretation. See
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`Renishaw PLC, 158 F.3d at 1250.
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`1. “RAID” (Claims 1 and 9)2
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`Petitioners propose “RAID” be construed as “at least a redundant
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`array of independent disks.” Pet. 8 (citing Declaration of Dr. M. Ray
`
`Mercer, Ex. 1006, 20-22). A “RAID” may include “RAID controllers.” Id.
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`(citing Ex. 1006, 20-21).
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`Patent Owner proposes that “RAID” be construed as “a redundant
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`array of independent disks, including RAID controllers, configured to be
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`used as a single peripheral by the host computers.” Prelim. Resp. 17-18.
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`Patent Owner argues that “RAID” includes RAID controllers, relying in part
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`on the language of claim 9: “a first and a second RAID controllers, included
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`in the RAID.” Prelim. Resp. 16. According to Patent Owner, a “RAID” is a
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`peripheral to “host computers,” and therefore, “RAID controllers” should be
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`a part of the construction. Prelim. Resp. 17. Patent Owner further argues
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`that Petitioners’ proposed inclusion of “at least” should be excluded from the
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`construction so as not to broaden the term unduly to include additional
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`computer equipment. Id.
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`“RAID” is well understood by a person of ordinary skill in the art as
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`an acronym for “redundant array of inexpensive disks.” Ex. 1001, Abstract.
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`We are not persuaded that any additional definition is needed to capture the
`
`ordinary meaning of RAID. Thus, we construe “RAID” to mean “redundant
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`array of inexpensive disks.”
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`2. “RAID controller/RAID controlling unit” (Claims 1 and 9)
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`Petitioners contend that the term “RAID controlling unit” should be
`
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`2 Our claim construction analysis is the same as for IPR2013-00635. The
`parties’ positions also are the same as those expressed in IPR2013-00635, as
`reflected in the citations to the Petition and Preliminary Response of this
`case.
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`construed as “a functional component including hardware that may be
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`controlled by computer code, the functional component providing control to
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`implement RAID storage in an array of storage drives.” Pet. 8 (citing Ex.
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`1006, 18-20). Petitioners support their construction relying solely on the
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`declaration of Dr. Mercer, which is conclusory as to the proposed
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`construction, and states only that the ’346 patent does not define “RAID
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`controlling unit.” See Ex. 1006, 18-20.
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`Patent Owner argues that “RAID” and “RAID controller” should be
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`interpreted synonomously. Prelim. Resp. 18. Citing claim 9, for example,
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`Patent Owner contends that “RAID controllers” are hardware and connect to
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`other hardware. Id. Thus Patent Owner’s interpretation is “a hardware unit
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`within a RAID that controls operation of the RAID so as to make the RAID
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`appear as a single disk storage peripheral to the host computers.” Id.
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`Patent Owner does not explain why the specification of the
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`’346 patent requires the “RAID controller” be hardware, when a
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`combination of hardware and software is also possible. See Ex. 1001, figs.
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`1-6. Patent Owner’s arguments are insufficient to require interpretating the
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`’346 patent specification as requiring a hardware-only RAID. The parties’
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`proposals, therefore, improperly include extraneous language unsupported
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`by either the ’346 patent or extrinsic evidence.
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`For purposes of this decision, applying the broadest reasonable
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`interpretation in light of the specification, we, therefore, construe “RAID
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`controlling unit” and “RAID controller” to mean “a component that controls
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`operation of the RAID.”
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`3. “exchange/exchanges information” (Claims 1 and 9)
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`Patent Owner relies on the prosecution of the application for the
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`’346 patent to propose that “exchanges information” means “information is
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`exchanged via one or more of the connection units.” Prelim. Resp. 20-21.
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`Petitioners do not propose a construction for these terms.
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`We are not persuaded that Patent Owner’s proposed construction is
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`correct. The claims use “exchange” and “exchanges information” according
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`to their ordinary sense: to transmit and receive information reciprocally.3
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`The claim recites the structures between which information is exchanged,
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`i.e., between the RAID controlling units and the host computers, between the
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`first and fourth network controlling units, and between the second and third
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`network controlling units. Additional claim language requires only the
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`information to and from the host computers to be exchanged through the
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`connection units. Therefore, it would be improper to limit the recited
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`“exchange of information” to occur via connection units when such
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`limitation is expressly addressed in the claims at issue. The specification of
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`the ’346 patent is consistent with the ordinary meaning of transmitting and
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`receiving information reciprocally, because it describes that information is
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`transmitted to and from a network interface controller of a first RAID and
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`another network interface controller of a second RAID. Ex. 1001,
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`3:664:12.
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`Based on the foregoing, applying the broadest reasonable construction
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`in light of the specification, we construe “exchange/exchanges information”
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`to mean “to transmit and receive information reciprocally.”
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`3 Definition exchange (vb) (3), WEBSTER’S THIRD NEW INTERNATIONAL
`DICTIONARY, UNABRIDGED (1993), available at
`http://lionreference.chadwyck.com (Dictionaries/Webster’s Dictionary).
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`Other Terms for Proposed Construction
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`For purposes of this decision, the other terms of the challenged claims
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`need not be construed expressly at this time.
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`B. Obviousness over TruCluster and Sicola
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`Petitioners contend that claims 1-9 of the ’346 Patent are obvious over
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`TruCluster and Sicola. Pet. 9-35. To support this position, Petitioners rely
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`on the testimony of Dr. Mercer. Ex. 1006, 22-79.
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`For the reasons discussed below, we determine that Petitioners have
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`not shown a reasonable likelihood that they will prevail on their assertion
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`that claims 1-9 are unpatentable as obvious over TruCluster and Sicola.
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`1. TruCluster Overview
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`TruCluster is a hardware server product provided originally by
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`Compaq Computer Corporation. Ex. 1003, 2, 23.4 TruCluster describes
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`how to set up and maintain hardware configurations for the server. Id. at 23.
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`In conjunction with software, the server “extends single-system management
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`capabilities to clusters.” Id.
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`Figure 6-6 of TruCluster is reproduced below.
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`4 Page references are to “DHPN-1003” as designated by Petitioners, and not
`to actual pages of TruCluster.
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`Figure 6-6 shows a hardware configuration of a multi-bus failover mode.
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`Ex. 1003, 120, 122.
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`Still referring to Figure 6-6, Member Systems 1 and 2 are servers, and
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`components labeled KGPSA are Fibre Channel adapters for systems 1 and 2.
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`Ex. 1003 at 43. The components labeled DSGGA are Fibre Channel
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`switches. Id. “The Fibre Channel RAID Array 8000 (RA8000) midrange
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`departmental storage subsystem and Fibre Channel Enterprise Storage Array
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`12000 (ESA12000) house two HSG80 dual-channel controllers.” Id. at 45.
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`Each HSG80 controller A and B provides two ports, left and right, or 1 and
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`2, as shown in Figure 6-6. Id.
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`In transparent failover mode, only one left port and one right port of
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`each controller are active at any given time. Id. Thus only one port of each
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`controller is active. Id. If one controller fails and can no longer
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`communicate with the switch (DSGGA), the functions automatically fail
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`over to the other controller. Id.
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`2. Sicola/’187 Patent Overview
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`Sicola describes a redundant data replication system including dual
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`Fibre Channel fabric links interconnecting each of the components of two
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`data storage sites. Ex. 1004, Abstract. Each site includes a host computer
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`and data storage array, with redundant array controllers and adapters. Id.
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`Figure 3 of Sicola is reproduced below.
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`
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`Figure 3 is a block diagram of the system of Sicola. Ex. 1004, 7:65-66.
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`Hosts 101 and 102 each has two adapters 308, which support dual fabric
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`topology. Id. at 8:1-3. The hosts run software that allows fail over between
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`storage paths for controller-based storage arrays 20l/202 and
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`211/212. Id. at 8:34-37. There are two host ports 109 for each array
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`controller 201, 202, 211, and 212. Id. at 8:11-13. One port of each
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`controller is the host port that will serve local host 101/102. Id. at 8:45-48.
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`The other port of each controller is the remote copy port, used for backup.
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`Id. The configuration allows for applications using either of storage arrays
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`203/213 to continue running given any failure of either fabric 103A or 103B,
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`or of either storage array. Id. at 8:7-10.
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`The RAID controllers via their network ports include timed heartbeat
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`signals. Ex. 1004, 9:35-36. Controller A1 sends a command or “heartbeat”
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`to controller B1, for example to write data. Id. at 9:47-51. In case of
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`failover, of controller A1 for example, control is transferred to controller A2.
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`Id. at 10:13-15. Similarly controller B2 shares storage array 213 with
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`controller B1, and B2 can access the storage array if B1 fails. Id. at 10:17-
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`21.
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`3. Claims 1-9 under § 103(a) (TruCluster and Sicola)
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`Independent claims 1 and 9 each includes an “exchanges information”
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`limitation. This limitation is dispositive of the grounds raised in the Petition,
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`and is analyzed below. Claim 1 recites the “exchanges information”
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`limitation as set out below:
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`the 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.
`(emphasis added).
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`Claim 9 recites the limitation in similar language as set out below:
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`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).
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`We now turn to the parties’ positions with respect to claim 1.
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`Petitioners argue that the system shown in Fig. 6-6 of TruCluster includes
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`the same connection topology as in Figure 4 of the ’346 Patent. Pet. 10, 17.
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`As a result, Petitioners argue TruCluster provides for the same
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`“communication passages” described in the ’346 Patent’s specification at
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`column 3, line 62, through column 4, line 12. Id. at 10-11 (citing Ex. 1006,
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`23). Petitioners contend that the “arrangement of TruCluster’s system
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`performs the ‘exchanges limitation’ of claim 1.” Id. at 11. Petitioners
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`conclude that the “exchanges information element” is suggested, if not
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`explicitly shown, by Figure 6-6 of TruCluster.5 Id. at 11, 17 (citing Ex.
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`1006, 34-35).
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`Dr. Mercer’s testimony on obviousness based on TruCluster is set
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`forth below:
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`A person of ordinary skill in the art would have understood that RAID
`controller A port 1 and RAID controller B port 1 could communicate
`through the first switch and also that RAID controller A port 2 and
`RAID controller B port 2 could communicate through the second
`switch, as shown in Figure 6-6. Such information exchange between
`the cited ports is strongly suggested by the architecture shown in
`Figure 6-6.
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`Ex. 1006, 34.
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`Petitioners specifically argue as the first ground of unpatentability that
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`the “exchanges information” limitation would have been obvious to the
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`person of ordinary skill based on TruCluster and Sicola.6 Pet. 11-13.
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`Petitioners argue Sicola teaches using ports in dual-ported RAID controllers
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`to communicate among the RAID controllers. Id. at 11. The ports of Sicola,
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`5 Petitioners do not allege, as a ground of unpatentability, that TruCluster,
`absent Sicola, renders claims 1-9 obvious. We have set out the arguments
`made regarding TruCluster as relevant to the combination of TruCluster and
`Sicola.
`6 However, there are statements in the Petition relying on TruCluster alone,
`including, for example, that “every element of claim 1 is suggested, if not
`explicitly shown, by Fig. 6-6 of TruCluster.” Pet. 11.
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`it is further argued, are “a type of network controlling unit.” Id. (citing Ex.
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`1006, 23-24). Petitioners argue Sicola’s disclosure of a host port and a
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`“remote copy” port as “just like” the dual ported RAID controllers of
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`TruCluster Figure 6-6. Id. at 11-12 (citing Ex. 1004, 4:33-41, 8:44-48, fig.
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`3).
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`As to the “exchanges information” limitation at issue, Petitioners
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`argue that “the ’187 Patent [Sicola] demonstrates that it was also well known
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`that RAID controllers in a storage system would communicate with each
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`other using their respective network ports.” Id. at 18 (citing Ex. 1004, 4:33 -
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`41, 8:44-48, fig. 3). Petitioners allege Sicola teaches that information is
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`exchanged between the RAID controllers of Sicola via the network ports,
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`including heartbeat signals, data for storage, write commands,
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`acknowledgements, and failover information. Id. at 12 (citing Ex. 1004,
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`9:35-52, 10:8-21; Ex. 1006, 24). The alleged exchange of information
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`between port 1 of RAID controller A and port 1 of RAID controller B in
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`Sicola occurs via the switch to which they are both connected. Id. (citing
`
`Ex. 1006, 24-25). Similarly, port 2 of RAID controller A exchanges
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`information with port 2 of RAID controller B via the switch to which they
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`are both connected. Id. at 12 and 18 (citing Ex. 1006, 24-25).
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`Petitioners contend one of ordinary skill would have combined
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`TruCluster and Sicola. Pet. 12. Petitioners first argue both are in the same
`
`field of endeavor, “storage systems with redundant pairs of storage
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`controllers.” Id. at 12-13 (citing Ex. 1006, 24). Further, Petitioners allege
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`TruCluster’s architecture shows connecting the “network controlling units,”
`
`i.e., ports 1 and 2 of Figure 6-6, through the DSGGA switches, providing
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`“information paths among the network control units.” Id. (citing Ex. 1003,
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`Patent 6,978,346 B2
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`25). Furthermore, Petitioners argue the combination would yield predictable
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`results. Id. at 13 (citing Ex. 1006, 25; KSR International Co. v. Teleflex Inc.,
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`550 U.S. 398, 416-417 (2007); MPEP § 2143).
`
`Relevant to the “exchanges information” limitation, Patent Owner
`
`argues that claims 1and 9 require the exchange of information between two
`
`“RAID controlling units” both of which are part of the same RAID. Prelim.
`
`Resp. 28. Patent Owner contends Figure 6-6 of TruCluster shows
`
`communication of the ports 1 and 2 of the HSG80 controllers with the host
`
`computers, but not between the HSG80 controllers. Id. at 28-29. Patent
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`Owner argues the “mere connection does not suggest at all, let alone
`
`strongly suggest, exchanging information.” Id. at 29.
`
`Patent Owner contends TruCluster alone does not disclose the
`
`“exchanges information” limitation, or Petitioners would not have relied on
`
`the combination with Sicola for this limitation. Prelim. Resp. 30. Patent
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`Owner argues that Sicola teaches something different from the claimed
`
`“exchanges information” limitation. Id. at 31. Specifically, Patent Owner
`
`argues Sicola Figure 3 discloses two RAIDs that communicate between each
`
`other. Id. at 31-32.
`
`Patent Owner also argues that substituting the RAID and RAID
`
`controllers of TruCluster and Sicola, as Petitioners claim would be known to
`
`one of ordinary skill, does not result in the “exchanges information”
`
`limitation. Prelim. Resp. 28-38
`
`In particular, Patent Owner points out that the evidence does not teach
`
`the information exchange that the claims require. To illustrate this point,
`
`Patent Owner provides an annotation of Figure 3 of Sicola, reproduced
`
`below.
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`17
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`Patent 6,978,346 B2
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`
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`Patent Owner states that the solid line in its annotation of Figure 3 of Sicola
`
`illustrates the exchange of information between two of the recited network
`
`controlling units, but argues that this “dedicated link” between a local array
`
`controller and a remote array controller does not meet the claimed
`
`“exchanges information” limitation. Prelim. Resp. 34-35 (citing Ex. 1006 at
`
`34 (quoting Ex. 1004, 4:33-34)). Patent Owner argues the dotted line in its
`
`annotation of Figure 3 “represents the claimed “exchang[e of] information”
`
`between network controlling units of RAID controllers of the same RAID.”
`
`Id. at 35. According to Patent Owner, the claimed communication
`
`illustrated by the dotted line is missing in Sicola. Id. We agree with Patent
`
`Owner that Petitioners have failed to provide sufficient information that four
`
`of the network controlling units of TruCluster would communicate as taught
`
`by Sicola to meet the “exchange information” limitation, when read in light
`
`of claim 1 and 9’s additional, express limitations regarding the network
`
`controlling units.
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`As stated above, the “exchanges information” limitation, when read in
`
`light of claim 1 and 9’s additional, express limitations regarding the
`
`network controlling units,” and its construction are dispositive of the
`
`obviousness ground based on TruCluster and Sicola.7 Accordingly, our
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`analysis is directed to those limitations and related issues.
`
`First, we are not persuaded that TruCluster discloses the “exchanges
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`information” limitation in addition to the network controlling unit
`
`limitations, as argued in a claim chart provided by Petitioner’s expert, Dr.
`
`Mercer. See Ex. 1006, 34. Each of the ports 1 and 2, i.e., network
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`controlling units of claim 1, communicate with the host through the
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`DSGGA, i.e., connecting units of claim 1. It has not been shown that the
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`ports associated with each of the two HSG80 controllers, i.e., RAID
`
`controlling units of claim 1, communicate with the ports of the other
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`HSG80. Furthermore, failover is a significant reason for the disclosed
`
`architecture. TruCluster discloses that if one controller fails and can no
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`longer communicate with the switch (DSGGA), the functions automatically
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`fail over to the other controller. Ex. 1003, 45. Dr. Mercer testifies that the
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`architecture of Figure 6-6 of TruCluster shows:
`
`RAID controller A port 1 and RAID controller B port 1 could
`communicate through the first switch and also that RAID controller A
`port 2 and RAID controller B port 2 could communicate through the
`second switch, as shown in Figure 6-6. Such information exchange
`between the cited ports is strongly suggested by the architecture
`shown in Figure 6-6.
`
`Ex. 1006, 34 (emphasis added). Dr. Mercer’s testimony on this point, which
`
`is not supported by underlying facts or data, is not persuassive. See 37 CFR
`
`7 We need not address the other limitations or arguments made by Patent
`Owner regarding admissibility and prior art issues. See Prelim. Resp. 21-25.
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`§ 42.65(a). Showing the mere connection in TruCluster, without more, does
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`not persuade us that the recited “exchanges information,” including the
`
`network controlling units limitation “could” occur.
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`As to whether Sicola teaches the “exchanges information” limitation,
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`Petitioners rely again on the testimony of Dr. Mercer. Ex. 1006, 34-37.
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`There is no sufficient factual support for the explanation that a person of
`
`ordinary skill would combine the TruCluster system shown in Figure 6-6
`
`with the controller communication scheme disclosed in Sicola. An
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`obviousness rationale may be reasonable if the combination of familiar
`
`elements according to known methods does no more than yield predictable
`
`results. KSR Int'l v. Teleflex Inc., 550 U.S. 398, 416 (2007). More
`
`specifically, “when a patent ‘simply arranges old elements with each
`
`performing the same function it had been known to perform’ and yields no
`
`more than one would expect from such an arrangement, the combination is
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`obvious.” Id. at 417 (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273, 282
`
`(1976)). A general assertion that a patent simply arranges old elements
`
`must, therefore, follow a showing that each element performs the same
`
`function it had been known to perform. We do not see how the Petitioner’s
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`assertion of obviousness shows that TruCluster’s system—which includes a
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`multi-bus failover capability—would perform that failover function when
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`Sicola’s inter-site controller communications require a dedicated link that
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`would eliminate such a function. See Prelim. Resp. 35-37 (arguing that the
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`use of Sicola’s dedicated links for the “exchange of information” would
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`eliminate TruCluster’s multi-bus failover capability). And there is no
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`sufficient factual support in either the Petition or the Declaration of Dr.
`
`Mercer to suggest that a person of ordinary skill in the art would find it
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`obvious to modify the TruCluster system to include the Sicola
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`communications at the cost of losing the failover function.
`
`Claim 9 has the same single RAID requirement and “exchanges
`
`information” limitation. Petitioners make the same arguments for
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`unpatentability made in connection with claim 1. Pet. 34-35. Claims 2-8 all
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`depend from claim 1, and for reasons discussed, the challenges to claims 2-8
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`also fail.
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`In consideration of the above, we are not persuaded that Petitioners
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`have shown a reasonable likelihood that they will be successful in
`
`demonstrating any of claims 1-9 would have been unpatentable as obvious
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`over the combination of TruCluster and Sicola.
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`C. Obviousness over OpenVMS
`
`Petitioners contend that claims 1-9 of the ’346 patent are obvious over
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`OpenVMS. Pet. 8-9, 35-59. To support this position, Petitioners rely on the
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`testimony of Dr. Mercer. Ex. 1006, 80-148.
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`For the reasons discussed below, we are not persuaded that Petitioners
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`have made a sufficient showing that there is a reasonable likelihood that they
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`would prevail in challenging claims 1-9 based on obviousness over
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`OpenVMS.
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`
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`1. OpenVMS Over
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