IPR2014-00404
`
`
`
`Paper No. 34
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`
`
`MICROSOFT CORP. and APPLE INC.,
`Petitioner
`
`v.
`
`VIRNETX, INC.,
`Patent Owner
`___________________
`
`Case IPR2014-00404
`Patent 7,987,274
`____________________
`
`Before MICHAEL P. TIERNEY, KARL D. EASTHOM, and STEPHEN C. SIU,
`Administrative Patent Judges.
`
`__________________________________________________________________
`
`Petitioner’s Reply
`
`
`
`
`
`
`
`
`
`
`Paper No. 34
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`
`
`MICROSOFT CORP. and APPLE INC.,
`Petitioner
`
`v.
`
`VIRNETX, INC.,
`Patent Owner
`___________________
`
`Case IPR2014-00404
`Patent 7,987,274
`____________________
`
`Before MICHAEL P. TIERNEY, KARL D. EASTHOM, and STEPHEN C. SIU,
`Administrative Patent Judges.
`
`__________________________________________________________________
`
`Petitioner’s Reply
`
`
`
`
`
`
`
`
`IPR2014-00404
`
`Table of Contents
`
`I.
`
`Claim Construction ....................................................................................... 1
`
`A.
`
`B.
`
`The Broadest Reasonable Interpretation Applies ............................ 1
`
`The Reexamination Prosecution Histories and Specification Do
`Not Contain the Alleged Disclaimers of Claim Scope ...................... 2
`
`C.
`
`The Board Should Maintain Its Claim Constructions ..................... 3
`
`1.
`
`2.
`
`3.
`
`4.
`
`VPN Communication Link ....................................................... 3
`
`Secure Domain (Name) Service ............................................... 5
`
`Tunnel Packeting....................................................................... 6
`
`Client Computer ........................................................................ 6
`
`II. Ground 1: Kiuchi Anticipates Claims 1-4, 7, 8, 10, 12, 15, and 17 ........... 7
`
`A.
`
`The “Server-Side Proxy” and “Host” Are the Same Device ........... 8
`
`B. Kiuchi Discloses an “Access Request Message” ............................. 10
`
`1.
`
`2.
`
`Both Messages Identified by the Board Are Sent to “a
`Second Network Device” at a “Secure IP Address” ............ 10
`
`Both Messages Seek Communication, Information or
`Services ..................................................................................... 11
`
`C. Kiuchi Discloses a “VPN Communication Link” ........................... 12
`
`D. Kiuchi Discloses the “Client Computer” of Claim 15 .................... 14
`
`III. Ground 2: Kiuchi In View of Bhatti Renders Claims 1-4, 7, 8, 10, 12, 15,
`and 17 Obvious ............................................................................................. 14
`
`IV. Ground 3: Kiuchi in View of Linblad with or without Bhatti Renders
`Claim 5 Obvious ........................................................................................... 15
`
`V. Conclusion .................................................................................................... 15
`
`
`ii
`
`
`
`IPR2014-00404
`
`
`CASES
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Adams Respiratory Therapeutics, Inc. v. Perrigo Co.,
`616 F.3d 1283 (Fed. Cir. 2010) .........................................................................................3
`
`Grober v. Mako Prods., Inc.,
`686 F.3d 1335 ........................................................................................................................5
`
`In re Cuozzo Speed Techs., LLC,
`2015 WL 44866 (Fed. Cir. Feb. 4, 2015) ........................................................................1
`
`In re Paulsen,
`30 F.3d 1475 (Fed. Cir. 1994) ...........................................................................................7
`
`In re Swanson,
`540 F.3d 1368 ........................................................................................................................1
`
`Marine Polymer Techs., Inc. v. Hemcon, Inc.,
`672 F.3d 1350 (Fed. Cir. 2012) (en banc) ......................................................................3
`
`Tempo Lighting Inc. v. Tivoli, LLC,
`742 F.3d 973 (Fed. Cir. 2014) .......................................................................................2, 3
`
`
`
`
`
`IPR2014-00404
`
`
`
`
`Petitioner’s Reply (Paper 34)
`
`The Board correctly found claims 1-4, 7, 8, 10, 12, 15 and 17 anticipated by
`
`Kiuchi (Ex. 1004) and obvious based on Kiuchi in view of Bhatti (Ex. 1010). The
`
`Board also correctly found Kiuchi in view of Lindblad (Ex. 1009) with or without
`
`Bhatti, would have rendered claim 5 obvious. Decision, Paper No. 13 (“Dec.”) at
`
`12-19. The Board’s determinations that the challenged claims are unpatentable are
`
`supported by more than substantial evidence and should be maintained.
`
`I.
`
`Claim Construction
`
`A. The Broadest Reasonable Interpretation Applies
`
`Patent Owner challenges the Board’s determinations as being based on an
`
`improper use of the broadest reasonable interpretation standard (BRI), because its
`
`ability to amend the claims was “severely restricted.” Patent Owner Response,
`
`Paper No. 26 (Resp.) at 2-3. But Patent Owner never sought to amend its claims,
`
`and the Federal Circuit has recently rejected that precise theory as a reason for the
`
`Board to not employ BRI in IPR proceedings. In re Cuozzo Speed Techs., LLC,
`
`2015 WL 44866, *7 (Fed. Cir. Feb. 4, 2015). Patent Owner also contends the
`
`Board erred by not employing constructions adopted by a district court in related
`
`litigation, but those constructions rest on a different claim construction standard
`
`and are not binding on nor are entitled to deference by the Board. See In re
`
`Swanson, 540 F.3d 1368, 1377-78 (“considering an issue at the district court is not
`
`equivalent to the PTO having had the opportunity to consider it”). Patent Owner’s
`
`
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`attack on the Board’s use of the BRI standard is a transparent attempt to import
`
`unclaimed limitations into its claims, and must be rejected.
`
`B.
`
`The Reexamination Prosecution Histories and Specification Do
`Not Contain the Alleged Disclaimers of Claim Scope
`
`Patent Owner contends it has made prosecution disclaimers that limit the
`
`scope of its claims. Resp. at 10-12, 16-18. What these arguments reveal is that the
`
`claims, based on their actual language, squarely encompass what is disclosed in or
`
`rendered obvious by the prior art. Moreover, even if they were relevant under the
`
`BRI (which they are not), Patent Owner’s actions plainly do not satisfy the
`
`requirements for an effective disclaimer.
`
`First, the putative disclaimers are all based on statements made during
`
`reexamination proceedings—some of which are still pending—and none was
`
`accompanied by a claim amendment. Under Tempo Lighting Inc. v. Tivoli, LLC,
`
`742 F.3d 973 (Fed. Cir. 2014), which Patent Owner cites, this means these putative
`
`prosecution disclaimers have no legal effect. In Tempo, the Federal Circuit
`
`confirmed “the PTO is under no obligation to accept a claim construction
`
`proffered as a prosecution history disclaimer.” Id. at 978. It then affirmed the
`
`Board’s finding of a disclaimer, but only because the disclaimer was based on
`
`statements made at the examiner’s request and in conjunction with claim
`
`amendments during the original examination of the patent. Id. at 977. Tempo
`
`thus confirms the Board has no obligation to recognize a putative prosecution
`
`
`
`2
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`disclaimer in these proceedings. More importantly, it makes clear that statements
`
`made during reexamination are not equivalent to those made during original
`
`examination, especially when unaccompanied by a claim amendment. Id.; see
`
`Marine Polymer Techs., Inc. v. Hemcon, Inc., 672 F.3d 1350, 1364 (Fed. Cir.
`
`2012) (en banc) (“if, in reexamination, an examiner determines that particular
`
`claims are invalid and need amendment to be allowable, one would expect an
`
`examiner to require amendment rather than accept argument alone”).
`
`C. The Board Should Maintain Its Claim Constructions
`
`Patent Owner’s challenges to specific claim constructions are unwarranted,
`
`and the Board should maintain the constructions in its institution decision.
`
`1.
`
`VPN Communication Link
`
`Patent Owner argues a “VPN communication link” must: (i) be “in a VPN,”
`
`(ii) involve a “network” of computers, and (iii) allow two computers to have
`
`“direct communication.” Resp. at 4-5. These limitations have no basis in the
`
`claim language and are inconsistent with the specification. For example, adding
`
`the first two limitations to the meaning of the term “VPN communication link”
`
`would exclude a preferred embodiment, which is plainly improper. See Adams
`
`Respiratory Therapeutics, Inc. v. Perrigo Co., 616 F.3d 1283, 1290 (Fed. Cir.
`
`2010) (“A claim construction that excludes the preferred embodiment ‘is rarely, if
`
`ever, correct and would require highly persuasive evidentiary support.’”). Also,
`
`
`
`3
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`figure 33 depicts a point-to-point connection between two computers, which Patent
`
`Owner and its expert identify as a “VPN communication link.” See Resp. at 6-7
`
`(“VPN communication link 3321 travers[es] the unsecure public network, Internet
`
`3302 to connect computer 3301 with secure server 3320.”); Ex. 2041 ¶¶ 16-17;
`
`Ex. 1090 at 11:7-12:1 (agreeing the depicted link originates at Computer 3301 and
`
`ends at Server 3320). Because a point-to-point connection can be a “VPN
`
`communication link” according to Patent Owner and its expert, adding
`
`requirements for additional unspecified computers on a network and limiting point-
`
`to-point connections to those within a VPN is plainly improper under the BRI.
`
`Patent Owner next asserts, based on prosecution history statements, a VPN
`
`communication link requires “direct” communications. Resp. at 9. This argument
`
`must be rejected because it was not accompanied by a claim amendment.
`
`Moreover, there is no clear explanation in the prosecution history or the
`
`specification of what “direct” means. For example, the ’274 specification
`
`describes VPN communication links that traverse firewalls, edge routers, and
`
`proxies between the end devices in a connection. Ex. 1001 at 33:30-61, 45:22-23,
`
`49:18-59, 51:34-36. The specification and prosecution history do not indicate
`
`which, if any, of these configurations would render communications “indirect”
`
`rather than “direct.” See Ex. 1090 at 12:8-13:19. Without a clear explanation of
`
`what is or is not being excluded by use of the term “direct” communication, there
`
`
`
`4
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`can be no clear and unequivocal disavowal of “indirect” communications. See
`
`Grober v. Mako Prods., Inc., 686 F.3d 1335, 1343 (“prosecution history limits
`
`claim meaning when an applicant ‘clearly and unmistakably’ disclaims scope or
`
`meaning”). The Board should not read a nebulous “direct” limitation into the
`
`claims in these proceedings based on the BRI standard.
`
`The Board correctly found that an “access request message” sent as part of
`
`the process of establishing a secure connection can be sent via a VPN
`
`communication link, as claim 11 specifies the VPN communication link is initiated
`
`in response to the access request message. Dec. at 6. Patent Owner now contends
`
`(Resp. at 7-8) that claim 11 concerns “re-initiating” a connection, not “initiating”
`
`one, citing an unrelated portion of the specification that addresses load balancing.
`
`See Ex. 1090 at 27:15-32:19. Nothing in the claim supports limiting the claim in
`
`this manner – even Patent Owner’s expert admitted that claim 11 does not refer to
`
`“reinstating” or “load balancing.” Id. at 28:7-8, 32:18-19.
`
`2.
`
`Secure Domain (Name) Service
`
`Patent Owner contends a “secure domain (name) service” (SDNS) must be
`
`able to “recognize that a query message is requesting a secure computer network
`
`address,” (Resp. at 17), and it “may” be able to provide other services, such as
`
`“supporting the establishment of a VPN communication link.” Resp. at 18. Patent
`
`Owner relies on this new definition to argue Kiuchi does not disclose an SDNS,
`
`
`
`5
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`but provides no analysis in support. Resp. at 16. Patent Owner never explains
`
`what it means to “recognize” that a query is requesting a secure address, and what
`
`an SDNS server “may” do is irrelevant to what the claims require. These added
`
`limitations thus are unwarranted. Both arguments also are irrelevant because
`
`Kiuchi shows (i) the C-HTTP name server will recognize whether a host
`
`corresponds to a secure address, and if it does not, the C-HTTP name server will
`
`return an error message, and (ii) if the host does correspond to a secure address, the
`
`C-HTTP name server supports establishing a secure connection by returning the
`
`server-side proxy’s IP address and public key. Ex. 1004 at 65; Ex. 1011 ¶ 33.
`
`3.
`
`Tunnel Packeting
`
`Patent Owner argues the Board’s construction of “tunnel packeting” is
`
`flawed, but then advances a detailed and highly conditional construction that is
`
`inconsistent with the term’s plain language. Patent Owner’s arguments ultimately
`
`are irrelevant because Kiuchi shows an HTTP message that is “wrapped” in a C-
`
`HTTP message (Ex. 1004 at 66, Fig. (c)), and Patent Owner’s expert admitted
`
`“wrapping” can mean placing one packet inside of another packet, (Ex. 1090 at
`
`33:7-35:19). The Board should maintain its construction. Ex. 1011 ¶ 26.
`
`4.
`
`Client Computer
`
`Patent Owner attempts to narrow the meaning of the term “client computer”
`
`to a “user’s computer,” arguing that the ’274 specification “repeatedly and
`
`
`
`6
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`consistently” “equates the user’s computer 2601 with the ‘client computer’ in
`
`claim 15.” Resp. at 21-22. The ’274 patent disclosure does no such thing – the
`
`language Patent Owner quotes to support its argument is from a different patent
`
`and is not present in the ’274 specification. Resp. at 21 (quoting Ex. 1025). The
`
`’274 specification uses the term “user’s computer” only twice, including once to
`
`describe prior art systems. Ex. 1001 at 38:61-62, 42:28-29. This is far from a
`
`repeated and consistent use of the term, and plainly does not operate to redefine
`
`“client computer” with the “reasonable clarity, deliberateness, and precision”
`
`necessary. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). Because a person
`
`of ordinary skill in the art would understand a “client” is any “application program
`
`that establishes connections for the purpose of sending requests,” the Patent
`
`Owner’s new definition must be rejected. Ex. 1021 at 5; Ex. 1011 ¶ 45.
`
`II. Ground 1: Kiuchi Anticipates Claims 1-4, 7, 8, 10, 12, 15, and 17
`
`The Board correctly found that Kiuchi anticipates claims 1-4, 7, 8, 10, 12,
`
`15, and 17. Dec. at 12-16. In response, Patent Owner contends (1) Kiuchi does
`
`not disclose a single “secure network address” and “second network device,” (2)
`
`neither of the messages in Kiuchi identified by the Board constitute an “access
`
`request message” and (3) Kiuchi does not disclose a “VPN communication link”
`
`because the communications are not direct or on a network. None of these
`
`contentions is supported by the record, and each must be rejected.
`
`
`
`7
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`A. The “Server-Side Proxy” and “Host” Are the Same Device
`
`Nearly all of Patent Owner’s arguments rest on its allegation that the Board
`
`erred by “mapping the same claim feature to varying addresses and devices” in the
`
`Kiuchi scheme. Resp. at 29-35. Specifically, Patent Owner contends “the Board
`
`relies on the host server’s IP address and the host server, meaning Kiuchi’s origin
`
`server,” in some instances, but on the server-side proxy’s name and address in
`
`others. Id. at 29. The Board did no such thing – it correctly recognized that in
`
`Kiuchi the “host” and the “server-side proxy” are the same device.
`
`Patent Owner employs this mischaracterization of the Board’s position and
`
`of what Kiuchi teaches to contend the Board improperly “mixes and matches” the
`
`Kiuchi elements, identifying the server-side proxy’s name and IP address as
`
`mapping to the claimed “secure network address” and “second network device,”
`
`for some limitations, but referring to the “host” and the “host IP address” when
`
`discussing the same claim elements in other contexts. Resp. at 31-35.
`
`The Board can readily dismiss these arguments because Kiuchi makes
`
`absolutely clear that the “host” is the name of the server-side proxy, including
`
`repeated statements that the C-HTTP hostname is associated with a server-side
`
`proxy. See Ex. 1004, p. 68 §§ 4.2(2), 4.3(3)(d); p. 65, § 2.3(2); p. 71, App. § 1.3
`
`(“Server-Side-Proxy-Name: Used for specifying the hostname of a server-side
`
`proxy.”); p. 73, App. 3; Ex. 1011 ¶¶ 37, 40-41, 34. Even Dr. Monrose agrees that
`
`
`
`8
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`Kiuchi shows “a host name [is] associated with the firewall . . . the server-side
`
`proxy is installed on the firewall,” and the host name of the proxy can be stored in
`
`the C-HTTP name server. Ex. 1090 at 49:8-51:19, 66:4-67:7, 68:4-18.
`
`Tellingly, Patent Owner cites no passage in Kiuchi where it equates the
`
`“host” or “hostname” with the origin server. That is because there are none.
`
`Instead, Kiuchi explains “[f]rom the view of the user agent or client-side proxy, all
`
`resources appear to be located in a server-side proxy on the firewall.” Ex. 1004 at
`
`p. 66, § 2.3(7); Ex. 1090 at 56:1-21. That statement would be illogical if the client-
`
`side proxy knew the hostname and IP address of the origin servers. While Patent
`
`Owner identifies the “resource” portion of the URL as corresponding to the origin
`
`server, the resource is not the hostname, is not sent to the C-HTTP name server,
`
`and is irrelevant. Resp. at 33-34; Ex. 1090 at 52:15-17. Patent Owner’s reliance
`
`on the Petition is equally unpersuasive; the referenced diagrams merely depict the
`
`undisputed fact that the server-side proxy and origin servers are separate devices.
`
`In fact, the cited portions state “the hostname is different than the origin server’s
`
`name[].” Id. (citing Pet. at 24-25). Patent Owner’s analysis would fail even if it
`
`were correct that the “host” referred to the origin server because Kiuchi shows the
`
`“host” is resolved into the IP address of the server-side proxy and any message
`
`sent to the origin server necessarily is sent to the IP address of the server-side
`
`proxy. Ex. 1004 at p. 65-66 § 2.3(2), (6); Ex. 1090 at 53:4-18, 57:14-58:6, 61:3-
`
`
`
`9
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`19, 64:1-65:11; Ex. 1011 ¶¶ 31-33, 36. Thus, Patent Owner’s arguments, based on
`
`a factually inaccurate description of Kiuchi, must be rejected.
`
`B. Kiuchi Discloses an “Access Request Message”
`
`The Board correctly found Kiuchi to describe two different messages (the
`
`HTTP/1.0 GET Request and Kiuchi’s step (3) request for connection), each of
`
`which is “an access request message.” Dec. at 13-14. Patent Owner disagrees,
`
`asserting neither message (1) is sent to “the alleged secure computer network
`
`address,” (2) seeks “communication, information, or services”, and (3) is part of a
`
`VPN communication link. Resp. at 36. Those flawed arguments must be rejected.
`
`1.
`
`Both Messages Identified by the Board Are Sent to “a
`Second Network Device” at a “Secure IP Address”
`
`Patent Owner incorrectly asserts (Resp. at 31-34) the Board has identified
`
`two different “second devices” and two different “secure network addresses” – in
`
`reality, Kiuchi’s step (3) request for connection is sent to the same “second
`
`network device” and the same “secure network address.” See § II.A, above.
`
`Patent Owner then contends the HTTP/1.0 GET Request is never received by the
`
`server-side proxy or the origin server because the client-side proxy sends a C-
`
`HTTP message to the server-side proxy. Resp. at 36. But Kiuchi explains the
`
`client-side proxy receives the HTTP/1.0 GET Request, encrypts it, “wraps” the
`
`encrypted HTTP/1.0 message in a C-HTTP message and sends it to the server-side
`
`proxy. Ex. 1004 at p. 66, Fig. (c); see id. § 2.3(8) (“the C-HTTP response is
`
`
`
`10
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`decrypted and the HTTP/1.0 response extracted”), § 2.3(6) (“a client-side proxy
`
`forwards HTTP/1.0 requests from the user agent in encrypted form using C-HTTP
`
`format.”). Thus, the server-side proxy receives both the C-HTTP message and the
`
`HTTP/1.0 message. Indeed, Kiuchi’s use of C-HTTP to wrap an encrypted
`
`HTTP/1.0 message before transmission over a public network is one of the
`
`techniques the ’274 patent says can be used in establishing VPN communication
`
`links. Ex. 1001 at 15:20-23, 22:24-32. And as Dr. Monrose explained,
`
`“wrapping” involves placing one packet inside of another packet in the context of
`
`the ’274 patent, and this is one way to form tunnels. Ex. 1090 at 33:7-25:19; Ex.
`
`1001 at 49:28-36, 50:44-52. Thus, Kiuchi shows sending the “access request
`
`message” via a VPN communication link. See Dec. at 6, 8-9 (describing “tunnel
`
`packeting” as “placing data or information in one protocol format (or packet
`
`portion), into another protocol format (or portion of a packet)”). Patent Owner also
`
`argues the HTTP/1.0 message sent by the user agent is modified by the client-side
`
`proxy (i.e., by removing the connection ID from the URL per Kiuchi Figure (c))
`
`before sending it to the server-side proxy. Resp. at 36-37. This is irrelevant – the
`
`client-side proxy is the “first network device,” not the user agent. Dec. at 12-13.
`
`2.
`
`Both Messages Seek Communication, Information or
`Services
`
`Patent Owner next disputes that the C-HTTP messages are seeking
`
`“communication, information or services” from the server-side proxy. Resp. at 38-
`
`
`
`11
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`39. But, Patent Owner and Dr. Monrose admit the Kiuchi server-side proxy
`
`provides at least one service—buffering: “the server-side proxy may buffer
`
`resources it receives from the origin server prior to sending them to the client-side
`
`proxy.” Resp. at 39; Ex. 2041 ¶ 45; Ex. 1090 at 56:12-15. And the HTTP/1.0
`
`GET Request signifies the client-side proxy is requesting from the server-side
`
`proxy to both provide information and perform a service – to service the access
`
`request message by forwarding it to the origin server, obtain and buffer the
`
`requested information, and return it. See Ex. 1021 at 5 (“server[:] An application
`
`program that accepts connections in order to service requests by sending back
`
`responses.”), id. (“proxy[:] An intermediary program which acts as both a server
`
`and a client for the purpose of making requests on behalf of other clients. . . .”);
`
`Ex. 1011 ¶ 45. Similarly, step (3) of Kiuchi, the “request for connection” message,
`
`signifies that the client-side proxy is seeking to communicate with the server-side
`
`proxy and to establish a connection. Ex. 1004 at p. 65, § 2.3(1); Ex. 1090 at 55:13-
`
`15; Ex. 2041 ¶ 34. Thus, both messages are access request messages.
`
`C. Kiuchi Discloses a “VPN Communication Link”
`
`The Board correctly found Kiuchi to disclose a VPN communication link
`
`that is used when sending the access request message. Dec. at 13-15. In response,
`
`Patent Owner asserts Kiuchi’s “point-to-point connection” between its client-side
`
`and proxy-side servers is neither (a) on a network or (b) direct. Resp. at 39-44.
`
`
`
`12
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`This argument requires the Board to adopt Patent Owner’s improper construction
`
`for VPN communication link. See § I.C.1, above. It also ignores that this same
`
`type of point-to-point connection is depicted in Figure 33 of the ’274 patent and
`
`identified by Patent Owner as being a VPN communication link. Resp. at 7.
`
`Patent Owner’s position also conflicts with Kiuchi’s disclosure, which states “we
`
`discuss the design and implementation of a closed HTTP . . .-based network (C-
`
`HTTP) which can be built on the Internet,” and then uses the term “network” to
`
`describe this system. Ex. 1004 at p. 64, §§ 1, 2.1, 2.2; id. at p. 68, § 4.2(3); see Ex.
`
`1090 at 61:10-14. Kiuchi also describes an exemplary “virtual network” as linking
`
`multiple participants, such as “the headquarters and branches of a given
`
`corporation.” Ex. 1004 at p. 69, § 5; see id. at p. 65, § 2.3(1); Ex. 1090 at 69:9-
`
`72:3 (multiple connection IDs in a “connection table in the client-side proxy”
`
`indicates connection with multiple server-side proxies).
`
`Patent Owner’s arguments about “direct” communications are equally
`
`flawed. Patent Owner does not dispute that the client-side proxy and the server-
`
`side proxy in Kiuchi directly communicate. Resp. at 36-37. It instead
`
`manufactures a supposed difference out of how these messages are packaged and
`
`delivered (i.e., that HTTP/1.0 messages are encapsulated in C-HTTP messages).
`
`Id. In reality there is no difference – the Kiuchi proxy servers encapsulate, or
`
`“wrap”—but do not reformat—HTTP/1.0 messages into encrypted C-HTTP
`
`
`
`13
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`messages, the same type of technique described in the ’274 specification and
`
`defined in claims 12 and 13. Compare Ex. 1004 at p. 66, § 2.3(6), with Ex. 1001 at
`
`49:31-34. Indeed, Patent Owner elsewhere argues “tunnel packeting” in the ’274
`
`patent requires “that data structured in one protocol format is placed within another
`
`protocol format.” Resp. at 19. This is exactly what happens with the HTTP/1.0
`
`messages in Kiuchi. Excluding the Kiuchi encapsulation from the scope of the
`
`patent claims is flatly inconsistent with the ’274 disclosure and would render
`
`claims 12 and 13 indefinite.
`
`D. Kiuchi Discloses the “Client Computer” of Claim 15
`
`Patent Owner sole argument with respect to claim 15 is that the client-side
`
`proxy cannot be a “client computer” because the phrase “client computer” should
`
`be construed to mean “user’s computer.” Resp. at 44-45. As discussed in § I.C.3,
`
`this construction is not warranted. See also Ex. 1011 at ¶ 45; Ex. 1021 at 5.
`
`III. Ground 2: Kiuchi In View of Bhatti Renders Claims 1-4, 7, 8, 10, 12, 15,
`and 17 Obvious
`
`The Board correctly found Kiuchi in view of Bhatti renders claims 1-4, 7, 8,
`
`10, 12, 15, and 17 obvious. Dec. at 16-17. In response, Patent Owner argues that
`
`because the “access request message” in Bhatti is sent to a content server (the
`
`origin server in Kiuchi), in a Kiuchi combination it would not be sent to the
`
`claimed “second network device,” i.e., the server-side proxy. Resp. at 49-50.
`
`Patent Owner ignores that in Kiuchi all HTTP messages are routed through the
`
`
`
`14
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`client-side and server-side proxies, meaning, inter alia, that a Bhatti access request
`
`message would be sent from the client-side proxy (“first network device”) to the IP
`
`address (“secure network address”) of the server-side proxy (“second network
`
`device”). See Pet. at 46; Ex. 1011 ¶ 54 (“the client-side proxy would send the
`
`access request message to the IP address of the server-side proxy using the C-
`
`HTTP connection”). This message signifies the client-side proxy is requesting the
`
`server-side proxy to both provide information and perform a service: service the
`
`access request message by forwarding it to the origin server, obtain and buffer the
`
`requested information, and return it. See § II.C; Ex. 1021 at 5; Ex. 1011 ¶¶ 45, 55.
`
`IV. Ground 3: Kiuchi in View of Linblad with or without Bhatti Renders
`Claim 5 Obvious
`
`Patent Owner presents no distinct response to Ground 3. Resp. at 50. The
`
`Board should maintain its finding that claim 5 is obvious based on this ground.
`
`V. Conclusion
`
`For the reasons set forth above, the Board should not alter its claim
`
`construction findings, and it should maintain its finding that the challenged claims
`
`are unpatentable.
`
`Dated: February 11, 2015
`
`
`
`
`
`
`
`Respectfully Submitted,
`
`/ Jeffrey P. Kushan /
`Jeffrey P. Kushan
`Registration No. 43,401
`Sidley Austin LLP
`1501 K Street NW
`
`
`
`15
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`Washington, DC 20005
`jkushan@sidley.com
`(202) 736-8914
`Attorney for Petitioner Apple
`
`
`
`
`
`
`
`
`
`IPR2014-00404
`
`
`
`Petitioner’s Reply (Paper 34)
`
`Certificate of Service
`
`I hereby certify that on this 11th day of February, 2015, a copy of this
`
`Petitioner’s Reply has been served in its entirety by email on the following counsel
`
`of record for Patent Owner:
`
`
`Joseph E. Palys
`E-mail: josephpalys@paulhastings.com
`
`Naveen Modi
`E-mail: naveenmodi@paulhastings.com
`
`Jason E. Stach
`E-mail: Jason.stach@finnegan.com
`
`
`February 11, 2015
`
`
`
`Respectfully submitted,
`
`/Jeffrey P. Kushan/
`Jeffrey P. Kushan
`Attorney for Petitioner Apple
`
`
`
`Dated:
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
