Declaration of Michael Fratto Regarding U.S. Patent No. 6,502,135
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
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`RPX Corporation
`Petitioner,
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`v.
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`VirnetX, Inc. and Science Application International Corporation,
`Patent Owner
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`Patent No. 6,502,135
`Issued: Dec. 31, 2002
`Filed: Feb. 15, 2000
`Inventors: Edmund C. Munger, et al
`Title: Agile Network Protocol For Secure Communications With Assured System
`Availability
`____________________
`
`Inter Partes Review No. IPR2014-00171
`__________________________________________________________________
`
`DECLARATION OF MICHAEL FRATTO
`REGARDING U.S. PATENT NO. 6,502,135
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`Declaration ofMichael Fratto Regarding US. Patent No. 6,502, I 35
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`1, Michael Fratto, do hereby declare and state, that all statements made herein of
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`my own knowledge are true and that all statements made on information and belief
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`are believed to be true; and further that these statements were made with the
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`knowledge that willful false statements and the like so made are punishable by fine
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`or imprisonment, or both, under Section 1001 of Title 18 of the United States
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`Code.
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` Dated: November20,2013 WA
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`Mike Fratto
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`Declaration of Michael Fratto Regarding U.S. Patent No. 6,502,135
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`TABLE OF CONTENTS
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`1.
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`II.
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`INTRODUCTION ......................................................................................... 1
`A.
`Engagement ........................................................................................... 1
`B.
`Background and Qualifications ............................................................. 1
`C.
`Compensation and Prior Testimony ...................................................... 4
`D.
`Information Considered ......................................................................... 5
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`LEGAL STANDARDS FOR PATENTABILITY ...................................... 6
`A. Anticipation ........................................................................................... 7
`B.
`Obviousness ........................................................................................... 8
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`III. THE ’135 PATENT ..................................................................................... 14
`A.
`Effective Filing Date of the ’135 Patent ............................................. 14
`B.
`Prosecution History of the ’135 Patent ............................................... 17
`C.
`The Person of Ordinary Skill in the Art .............................................. 18
`D. Overview of the Claims of the ’135 Patent ......................................... 19
`E.
`Description of the Background Technology Relevant to the
`’135 Patent ........................................................................................... 19
`1. The Open Internet .........................................................................19
`2. Domain Names and the Domain Name System (DNS) ................21
`a) The DNS System ....................................................................22
`b) Domain Names and URIs .......................................................24
`c) Domain Name Resolution ......................................................26
`3. Encryption, Tunnels, and Data Security .......................................32
`1. Encryption ..............................................................................33
`d) Authentication ........................................................................35
`e) IPSec – RFC 2401 ..................................................................38
`f) Tunneling ................................................................................40
`4. VPNs .............................................................................................43
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`IV. General Issues Related to My Patentability Analysis .............................. 49
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`A.
`B.
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`C.
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`The Claims of the ’135 Patent I Am Addressing in this Report ......... 49
`Interpretation of Certain Claim Terms ................................................ 54
`1. Virtual Private Network (VPN) ....................................................55
`2. Virtual Private Link.......................................................................58
`3. Domain Name ...............................................................................59
`4. Domain Name Service ..................................................................59
`5. DNS Server ...................................................................................60
`6. DNS Proxy Server .........................................................................62
`7. Web Site ........................................................................................65
`8. Secure Web Site / Secure Target Web Site ...................................66
`9. Secure Web Computer ..................................................................67
`10. Target Computer ...........................................................................68
`11. Between a Client Computer and [target computer/secure
`web computer] ...............................................................................69
`Prior Art References ............................................................................ 71
`1. Exhibit 1007 – Aventail Connect v3.01/2.51
`Administrator’s Guide (“Aventail”)..............................................71
`2. Exhibit 1008 - BinGO! User’s Guide incorporating by
`reference BinGO! Extended Feature Reference
`(collectively, “BinGO”). ...............................................................72
`3. Request for Comment (RFC) Publications ...................................74
`4. Exhibit 1014 – Reed et al., IEEE J. Sel. Areas Comm.,
`16(4): 482-494 (May 1998) (“Reed I”) .........................................77
`5. Exhibit 1015 - Reed et al., “Proxies for Anonymous
`Routing,” 12th Annual Computer Security Applications
`Conference, San Diego, CA (December 9-13, 1996) (“Reed
`II”) .................................................................................................78
`6. Exhibit 1022 – Aventail Connect v3.1/2.6 Administrator’s
`Guide (“Aventail Connect v3.1”)..................................................80
`7. Exhibit 1021 – Aventail AutoSOCKS v2.1 Administrator’s
`Guide (“Aventail AutoSOCKS”) ..................................................81
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`Declaration of Michael Fratto Regarding U.S. Patent No. 6,502,135
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`V.
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`8. Exhibit 1024 – Ferguson, P. and Huston, G., “What Is a
`VPN”, The Internet Protocol Journal, Vol 1., No. 2 (Sept
`1998) (“Ferguson”) .......................................................................81
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`Patentability Analysis of Claims 1-10, 12-15 and 18 of the ’135
`Patent ............................................................................................................ 82
`A. Aventail Connect v3.01/2.5 Administrator’s Guide ........................... 82
`1. Overview of Aventail ....................................................................82
`2. Comparison of Claims 1-10, 12-15 and 18 of the ’135
`Patent to Aventail ........................................................................125
`1. Claim 1 .................................................................................125
`g) Claim 2 .................................................................................130
`h) Claim 3 .................................................................................132
`i) Claim 4 .................................................................................133
`j) Claim 5 .................................................................................136
`k) Claim 6 .................................................................................138
`l) Claim 7 .................................................................................149
`m) Claim 8 .................................................................................150
`n) Claim 9 .................................................................................153
`o) Claim 10 ...............................................................................156
`p) Claim 12 ...............................................................................160
`q) Claim 13 ...............................................................................161
`r) Claim 14 ...............................................................................165
`s) Claim 15 ...............................................................................167
`t) Claim 18 ...............................................................................169
`BinGO! User Guide Incorporating By Reference the BinGO! ......... 177
`1. Overview of BinGO ....................................................................177
`2. BinGO Anticipates and/or Renders Obvious Claims 1-10,
`12-15 and 18 of the ’135 Patent ..................................................213
`1. Claim 1 .................................................................................213
`u) Claim 2 .................................................................................216
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`B.
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`Declaration of Michael Fratto Regarding U.S. Patent No. 6,502,135
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`v) Claim 3 .................................................................................217
`w) Claim 4 .................................................................................218
`x) Claim 5 .................................................................................219
`y) Claim 6 .................................................................................220
`z) Claim 7 .................................................................................223
`aa) Claim 8 .................................................................................223
`bb) Claim 9 .................................................................................225
`cc) Claim 10 ...............................................................................225
`dd) Claim 12 ...............................................................................227
`ee) Claim 13 ...............................................................................228
`ff) Claim 14 ...............................................................................231
`gg) Claim 15 ...............................................................................233
`hh) Claim 18 ...............................................................................235
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`VI. PATENTABILITY ANALYSIS OF CLAIMS 1-5, 7, 8, 10, 12 and
`18 OF THE ’135 PATENT RELATED TO KIUCHI ........................... 240
`A. Overview of Kiuchi ........................................................................... 241
`1. Kiuchi Anticipates Claim 1 .........................................................251
`2. Kiuchi Anticipates Claim 2 .........................................................256
`3. Kiuchi Anticipates Claim 3 .........................................................257
`4. Kiuchi Anticipates Claim 4 .........................................................258
`5. Kiuchi Anticipates Claim 7 .........................................................259
`6. Kiuchi Anticipates Claim 8 .........................................................261
`7. Kiuchi Anticipates Claim 10 .......................................................263
`8. Kiuchi Anticipates Claim 12 .......................................................267
`Kiuchi Renders Claims 5, 8, and 18 Obvious ................................... 267
`1. Kiuchi Renders Claim 5 Obvious ...............................................270
`2. Kiuchi Renders Claim 8 Obvious ...............................................271
`3. Kiuchi Renders Claim 18 Obvious .............................................273
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`B.
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`VII. CONCLUSION .......................................................................................... 273
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`Declaration of Michael Fratto Regarding U.S. Patent No. 6,502,135
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`Appendix A:
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` TABLE OF APPENDICES
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`List of Materials Considered
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`Declaration of Michael Fratto Regarding U.S. Patent No. 6,502,135
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`1.
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`INTRODUCTION
`A. Engagement
`I have been retained by counsel for RPX Inc. as an expert witness in
`1.
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`the above-captioned proceeding. I have been asked to provide my opinion about
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`the state of the art of the technology described in U.S. Patent No. 6,502,135 (“the
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`’135 patent”) and on the patentability of claims 1-10, 12-15, and 18 of the ’135
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`patent, which I do in this report. I previously submitted a written report in inter
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`partes reviews of the ’135 patent on behalf of Apple Inc. The case numbers of
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`those proceeding are IPR2013-00348 and IPR2013-00349. Sections I.B through V
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`below are substantively the same as the corresponding sections of my report in the
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`IPR2013-00349 proceeding. Section VI below contains my opinions relating to an
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`additional prior art reference as applied to claims 1-5, 7-8, 10, 12, and 18 of the
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`’135 patent.
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`Background and Qualifications
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`B.
`2. My Curriculum Vitae is submitted herewith as Exhibit 1007.
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`3.
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`I received a Bachelor of Science Degree from Syracuse University in
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`2001 in Information Science and Technology.
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`4.
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`I began working in the field of computer science in 1987. Between
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`1987 and 1992, I was a consultant where I wrote software that would connect
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`remote offices and collect/process data for input into other programs.
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`5. Between 1994 and 1997, I was a freelance editor for Network
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`Computing, where I covered remote access and telecommunications products and
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`technologies. I held this position while earning my B.S. in Information Science
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`and Technology from Syracuse University.
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`6. Between June 1997 and June of 2004, I was a permanent employee of
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`Network Computing, starting as an Associate Technology Editor and rising to
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`Senior Technology Editor. In these capacities, I focused on network security
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`solutions and products, which was a rapidly evolving field at that time. I have
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`subsequently held a number of other positions with Network Computing, as well as
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`affiliated publications. For example, from July 2004 to April 2006, I served as
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`Editor of Secure Enterprise Magazine – which focused on security solutions
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`specific to enterprise systems. After April 2006, I returned to Network Computing,
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`where I served in a progression of senior positions, ultimately serving as Editor of
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`Network Computing between August 2009 and October of 2012.
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`7.
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`I am presently a Senior Analyst with Current Analysis. In this respect I
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`manage the Enterprise Networking practice within the business and technology and
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`software group. I also provide competitive analysis on trends and changes in the
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`enterprise networking markets as well as consult with network equipment vendors
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`on product messaging, marketing, and outreach.
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`Declaration of Michael Fratto Regarding U.S. Patent No. 6,502,135
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`8.
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`I presently serve as an adjunct faculty member of School of Information
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`Studies at Syracuse University.
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`9.
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`I have been studying, evaluating, testing and describing networking,
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`networking security and related technologies for more than 15 years. Since well
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`before 1999, I have had an extensive background and experience in network
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`systems, software and related technologies, with a particular focus on network
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`security.
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`10. I also have extensive hands-on experience with wide range of
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`networking and networking security products developed and sold in the 1993 to
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`2002 time frame. This came from my various positions with Network Computing,
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`where I reviewed, tested and described these products in a technical publication
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`devoted to this field. I also wrote articles about network infrastructure, data center,
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`and network access control items that were published by Network Computing. I
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`also am very familiar with Internet standards governing networking and security,
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`which I discuss below.
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`11. A substantial amount of my extensive experience with networking and
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`security systems used in the late 1990s came from my work in reviewing these
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`products for Network Computing. When I performed a typical review of a new
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`product, I would first define a “problem set” the product was designed to address.
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`I would interview IT administrators and executives and speak with the developers
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`Declaration of Michael Fratto Regarding U.S. Patent No. 6,502,135
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`of the product. I also would study the standards relevant to the product or its
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`implementation, and would evaluate the technical documentation accompanying
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`the product. I would then create a set of comparative measures to assess the ability
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`of the product to execute. I would then test the product under a variety of
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`situations designed to evaluate these comparative measures. To do this, I would
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`set up a test network, verify its operation, conduct the tests, and ensure the results
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`were accurate. I would also often compare the product to other products in the
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`same class or category.
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`12. In the 1997 to 2000 time frame, I was particularly focused on remote
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`access products including modems, ISDN, and virtual private networking products,
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`technologies, and standards as well as network and host-based firewalls.
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`13. I am the author of several books and publications devoted to secure
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`networking technologies. I also have taught a number of courses on systems and
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`technologies used in networking security, particularly focused on Internet security
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`solutions. These books and courses are listed on my C.V. (Ex. 1004).
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`C. Compensation and Prior Testimony
`14. I am being compensated at a rate of $250 per hour for my study and
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`testimony in this matter. I am also being reimbursed for reasonable and customary
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`expenses associated with my work and testimony in this investigation. My
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`Declaration of Michael Fratto Regarding U.S. Patent No. 6,502,135
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`compensation is not contingent on the outcome of this matter or the specifics of my
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`testimony.
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`15. I have never testified in Federal District Court.
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`16.
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`I have provided declarations that were submitted in inter partes
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`reexamination proceedings involving the ’135 patent and other patents owned by
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`Patent Owner. These proceedings include Control No. 95/001,682, 95/001,679 and
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`95/001,269, as well as Inter Partes Review Nos. IPR2013-00348, IPR2013-00349,
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`IPR2013-00354, IPR2013-00393, IPR2013-00394, IPR2013-00397, and IPR2013-
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`00398.
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`Information Considered
`
`D.
`17. My opinions are based on my years of education, research and
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`experience, as well as my investigation and study of relevant materials. In forming
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`my opinions, I have considered the materials I identify in this report and those
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`listed in Appendix A.
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`18. I may rely upon these materials and/or additional materials to respond
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`to arguments raised by the Patent Owner. I may also consider additional
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`documents and information in forming any necessary opinions — including
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`documents that may not yet have been provided to me.
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`19. My analysis of the materials produced in this investigation is ongoing
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`and I will continue to review any new material as it is provided. This report
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`Declaration of Michael Fratto Regarding U.S. Patent No. 6,502,135
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`represents only those opinions I have formed to date. I reserve the right to revise,
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`supplement, and/or amend my opinions stated herein based on new information
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`and on my continuing analysis of the materials already provided.
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`II. LEGAL STANDARDS FOR PATENTABILITY
`20. In expressing my opinions and considering the subject matter of the
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`claims of the ’135 patent, I am relying upon certain basic legal principles that
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`counsel has explained to me.
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`21. First, I understand that for an invention claimed in a patent to be found
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`patentable, it must be, among other things, new and not obvious from what was
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`known before the invention was made.
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`22. I understand the information that is used to evaluate whether an
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`invention is new and not obvious is generally referred to as “prior art” and
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`generally includes patents and printed publications (e.g., books, journal
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`publications, articles on websites, product manuals, etc.).
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`23. I understand in this proceeding RPX has the burden of proving the ’135
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`patent is anticipated by or obvious from the prior art by a preponderance of the
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`evidence. I understand that “a preponderance of the evidence” is evidence
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`sufficient to show that a fact is more likely true than it is not.
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`24. I understand that in this proceeding, the claims must be given their
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`broadest reasonable interpretation consistent with the specification. The claims
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`Declaration of Michael Fratto Regarding U.S. Patent No. 6,502,135
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`after being construed in this manner are then to be compared to the information in
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`the prior art.
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`25. I understand that in this proceeding, the information that may be
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`evaluated is limited to patents and printed publications. My analysis below
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`compares the claims to patents and printed publications that are prior art to the
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`claims.
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`26. I understand that there are two ways in which prior art may render a
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`patent claim unpatentable. First, the prior art can be shown to “anticipate” the
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`claim. Second, the prior art can be shown to have made the claim “obvious” to a
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`person of ordinary skill in the art. My understanding of the two legal standards is
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`set forth below.
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`A. Anticipation
`27. I understand that the following standards govern the determination of
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`whether a patent claim is “anticipated” by the prior art.
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`28. I have applied these standards in my evaluation of whether claims 1-10,
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`12-15, and 18 of the ’135 patent would have been anticipated by the prior art.
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`29. I understand that the “prior art” includes patents and printed
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`publications that existed before the earliest filing date (the “effective filing date”)
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`of the claim in the patent. I also understand that a patent will be prior art if it was
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`filed before the effective filing date of the claimed invention, while a printed
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`publication will be prior art if it was publicly available before that date.
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`30. I understand that, for a patent claim to be “anticipated” by the prior art,
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`each and every requirement of the claim must be found, expressly or inherently, in
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`a single prior art reference as recited in the claim. I understand that claim
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`limitations that are not expressly described in a prior art reference may still be
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`there if they are “inherent” to the thing or process being described in the prior art.
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`For example, an indication that a prior art reference that a particular process
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`complies with a published standard would indicate that the process must inherently
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`perform certain steps or use certain data structures that are necessary to comply
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`with the published standard.
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`31. I understand that it is acceptable to consider evidence other the
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`information in a particular prior art document to determine if a feature is
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`necessarily present in or inherently described by that reference.
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`B. Obviousness
`32. I understand that a claimed invention is not patentable if it would have
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`been obvious to a person of ordinary skill in the field of the invention at the time
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`the invention was made.
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`33. I understand that the obviousness standard is defined in the patent
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`statute (35 U.S.C. § 103(a)) as follows:
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`A patent may not be obtained though the invention is not identically
`disclosed or described as set forth in section 102 of this title, if the
`differences between the subject matter sought to be patented and the
`prior art are such that the subject matter as a whole would have been
`obvious at the time the invention was made to a person having
`ordinary skill in the art to which said subject matter pertains.
`Patentability shall not be negatived by the manner in which the
`invention was made.
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`34. I understand that the following standards govern the determination of
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`whether a claim in a patent is obvious. I have applied these standards in my
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`evaluation of whether claims 1-10, 12-15, and 18 of the ’135 patent would have
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`been considered obvious In February of 2000.
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`35. I understand that to find a claim in a patent obvious, one must make
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`certain findings regarding the claimed invention and the prior art. Specifically, I
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`understand that the obviousness question requires consideration of four factors
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`(although not necessarily in the following order):
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`The scope and content of the prior art;
`1.
`The differences between the prior art and the claims at issue;
`2.
`The knowledge of a person of ordinary skill in the pertinent art; and
`3.
`4. Whatever objective factors indicating obviousness or non-obviousness may
`be present in any particular case.
`36. In addition, I understand that the obviousness inquiry should not be
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`done in hindsight, but must be done using the perspective of a person of ordinary
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`skill in the relevant art as of the effective filing date of the patent claim.
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`Declaration of Michael Fratto Regarding U.S. Patent No. 6,502,135
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`37. I understand the objective factors indicating obviousness or non-
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`obviousness may include: commercial success of products covered by the patent
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`claims; a long-felt need for the invention; failed attempts by others to make the
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`invention; copying of the invention by others in the field; unexpected results
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`achieved by the invention; praise of the invention by the infringer or others in the
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`field; the taking of licenses under the patent by others; expressions of surprise by
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`experts and those skilled in the art at the making of the invention; and the patentee
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`proceeded contrary to the accepted wisdom of the prior art.
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`38. I understand the combination of familiar elements according to known
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`methods is likely to be obvious when it does no more than yield predictable results.
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`I also understand that an example of a solution in one field of endeavor may make
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`that solution obvious in another related field. I also understand that market
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`demands or design considerations may prompt variations of a prior art system or
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`process, either in the same field or a different one, and that these variations will
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`ordinarily be considered obvious variations of what has been described in the prior
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`art.
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`39. I also understand that if a person of ordinary skill can implement a
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`predictable variation, that variation would have been considered obvious. I
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`understand that for similar reasons, if a technique has been used to improve one
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`device, and a person of ordinary skill in the art would recognize that it would
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`improve similar devices in the same way, using that technique to improve the other
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`device would have been obvious unless its actual application yields unexpected
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`results or challenges in implementation.
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`40. I understand that the obviousness analysis need not seek out precise
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`teachings directed to the specific subject matter of the challenged claim, but
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`instead can take account of the “ordinary innovation” and experimentation that
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`does no more than yield predictable results, which are inferences and creative steps
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`that a person of ordinary skill in the art would employ.
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`41. I understand that sometimes it will be necessary to look to interrelated
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`teachings of multiple patents; the effects of demands known to the design
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`community or present in the marketplace; and the background knowledge
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`possessed by a person having ordinary skill in the art. I understand that all these
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`issues may be considered to determine whether there was an apparent reason to
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`combine the known elements in the fashion claimed by the patent at issue.
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`42. I understand that the obviousness analysis cannot be confined by a
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`formalistic conception of the words “teaching, suggestion, and motivation.” I
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`understand that in 2007, the Supreme Court issued its decision in KSR Int'l Co. v.
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`Teleflex, Inc. where the Court rejected the previous requirement of a “teaching,
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`suggestion, or motivation to combine” known elements of prior art for purposes of
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`an obviousness analysis as a precondition for finding obviousness. It is my
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`Declaration of Michael Fratto Regarding U.S. Patent No. 6,502,135
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`understanding that KSR confirms that any motivation that would have been known
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`to a person of skill in the art, including common sense, or derived from the nature
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`of the problem to be solved, is sufficient to explain why references would have
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`been combined.
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`43. I understand that a person of ordinary skill attempting to solve a
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`problem will not be led only to those elements of prior art designed to solve the
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`same problem. I understand that under the KSR standard, steps suggested by
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`common sense are important and should be considered. Common sense teaches
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`that familiar items may have obvious uses beyond the particular application being
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`described in a reference, that if something can be done once it is obvious to do it
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`multiple times, and in many cases a person of ordinary skill will be able to fit the
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`teachings of multiple patents together like pieces of a puzzle. As such, the prior art
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`considered can be directed to any need or problem known in the field of endeavor
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`In February of 2000 and can provide a reason for combining the elements of the
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`prior art in the manner claimed. In other words, the prior art does not need to be
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`directed towards solving the same problem that is addressed in the patent. Further,
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`the individual prior art references themselves need not all be directed towards
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`solving the same problem.
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`44. I understand that an invention that might be considered an obvious
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`variation or modification of the prior art may be considered non-obvious if one or
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`12
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`Petitioner RPX– Ex. 1003
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`Declaration of Michael Fratto Regarding U.S. Patent No. 6,502,135
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`more prior art references discourages or leads away from the line of inquiry
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`disclosed in the reference(s). A reference does not “teach away” from an invention
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`simply because the reference suggests that another embodiment of the invention is
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`better or preferred. My understanding of the doctrine of teaching away requires a
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`clear indication that the combination should not be attempted (e.g., because it
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`would not work or explicit statements saying the combination should not be made.
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`45. I understand that a person of ordinary skill is also a person of ordinary
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`creativity.
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`46. I further understand that in many fields, it may be that there is little
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`discussion of obvious techniques or combination, and it often may be the case that
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`market demand, rather than scientific literature or knowledge, will drive design
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`trends. When there is such a design need or market pressure to solve a problem
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`and there are a finite number of identified, predictable solutions, a person of
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`ordinary skill has good reason to pursue the known options within their technical
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`grasp. If this leads to the anticipated success, it is likely the product not of
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`innovation but of ordinary skill and common sense. In that instance the fact that a
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`combination was obvious to try might show that it was obvious. The fact that a
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`particular combination of prior art elements was “obvious to try” may indicate that
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`the combination was obvious even if no one attempted the combination. If the
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`combination was obvious to try (regardless of whether it was actually tried) or
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`13
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`Petitioner RPX– Ex. 1003
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`Declaration of Michael Fratto Regarding U.S. Patent No. 6,502,135
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`leads to anticipated s