`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEALS BOARD
`
`INTERNATIONAL BUSINESS MACHINES CORPORATION and
`ORACLE AMERICA, INC.,
`Petitioners,
`
`v.
`
`ELECTRONICS AND TELECOMMUNICATIONS RESEARCH INSTITUTE,
`Patent Owner.
`
`Case No. IPR2014-00976
`Patent 6,978,346 B2
`
`PETITIONERS’ REQUEST FOR REHEARING
`PURSUANT TO 37 C.F.R. §§ 42.71(c) AND (d)
`
`
`
`
`
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`
`
`
`I.
`
`II.
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`TABLE OF CONTENTS
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`INTRODUCTION ........................................................................................... 1
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`LEGAL STANDARD ..................................................................................... 6
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`III. THE BOARD ABUSED ITS DISCRETION IN FINDING THAT
`CHONG DOES NOT DISCLOSE A “RAID” ................................................ 6
`
`1.
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`2.
`
`3.
`
`4.
`
`The Board Misapprehended And/Or Overlooked Chong’s
`Disclosure Of “Data Mirroring” ............................................................ 7
`
`The Board Misapprehended And/Or Overlooked Chong’s
`Disclosure Of Fail-Over Of Data Storage Devices ............................. 12
`
`The Board Abused Its Discretion In Not Giving Due Weight To
`Dr. Katz’s Opinions ............................................................................. 13
`
`The Board Abused Its Discretion In Finding That Chong Does
`Not Describe A RAID ......................................................................... 14
`
`IV. THE BOARD DID NOT FIND THAT ANY OTHER ELEMENT OF
`THE ’346 PATENT CLAIMS WAS ABSENT FROM CHONG ................ 15
`
`V.
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`CONCLUSION .............................................................................................. 15
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`
`
`
`
`i
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`Pursuant to 37 C.F.R. §§ 42.71(c)–(d), Petitioners International Business
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`Machines Corporation and Oracle America, Inc. (“Petitioners”) request rehearing
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`of the Board’s December 11, 2014 Decision (Paper 14) denying institution of inter
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`partes review of U.S. Patent No. 6,978,346 (“the ’346 patent”).
`
`I.
`
`INTRODUCTION
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`Petitioners respectfully submit that the Board abused its discretion in
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`declining to institute inter partes review of the ’346 patent as anticipated by U.S.
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`Patent No. 6,070,251 and its counterpart Japanese Patent No. JP-H11-120092A
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`(collectively, “Chong”). In declining institution, the Board accepted Patent
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`Owner’s assertion that Chong does not disclose a “RAID,” dismissing the opinions
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`of Petitioners’ expert Dr. Katz as “not credible” and entitled to “little weight.”
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`These conclusions in turn rested on two findings regarding Chong’s disclosures:
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`(1) that Chong does not disclose “data mirroring,” i.e., identical data being written
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`to the two data storage devices; and (2) that Chong does not disclose fail-over of
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`data storage devices. But both of these findings were erroneous, misapprehending
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`and/or overlooking pertinent disclosures―identified by Petitioners in the Petition
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`and Dr. Katz in his Declaration―demonstrating Chong’s use of a “RAID.”
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`First, in finding that “the Chong controllers do not write identical data to
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`both data storage devices,” the Board accepted Patent Owner’s description of the
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`data flow, and its identification of a purported “missing write” between the cache
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`1
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`in one controller and the data storage device associated with the other controller
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`that would allegedly be “necessary for Dr. Katz’s assertion that ‘[data] is written
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`identically to both storage devices 124 and 125.’” (Prelim. Resp. at 34; Decision at
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`8.) But Patent Owner’s “missing write” theory was misleading, misrepresenting
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`Chong’s disclosures, and Petitioners’ reliance on them. As shown in the Petition
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`and Dr. Katz’s declaration, Chong’s “data mirroring” does not rely on this
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`“missing write” at all, but rather is achieved through an entirely different data flow.
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`As shown in the Petition, and as Patent Owner conceded, Chong discloses
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`identical data sent from each host to the caches on both controllers via primary and
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`secondary network interface controllers (GBIC/PSOCs). (Petition at 10-11, 13-15,
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`17-18, 28-30, 32-36, 41-44, 50-56; Ex. 1001, ¶¶ 36, 40, 50, 57, 60, 63, 93, 95; Ex.
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`1005 at 3:45-48 (“Since both primary and secondary controllers 16 and 22 receive
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`the same data, both caches 66 and 82 are filled at the same time in response to
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`write commands from the host”); 4:26-28 (“[E]ach of controllers 116 and 122 is
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`equivalent to the combination of primary and secondary controllers 16 and 22 in
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`FIG. 1”), Fig. 3; Prelim. Resp. at 31 (Patent Owner’s annotated figure 3 showing
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`data from both hosts sent to both caches).) And Chong further discloses that the
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`cached data in each controller is transferred to the data storage device directly
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`associated with that controller. (Petition at 10-11, 13-15, 17-18, 28-30, 32-35, 41-
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`42, 50-56; Ex. 1001, ¶ 36, 42, 48, 50, 93, 95; Ex. 1005 at 3:34-40 (“Fiber channel
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`2
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`frames supplied from the host are sent to primary controller 16, which then
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`responds on the loop by returning status information, etc. Frames addressed to data
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`storage device 24 are passed through PSOC 62 via cache 66. In the normal
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`operation, the data on the loop is also received by secondary controller 22 and data
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`storage device 24.”), 4:26-28 (“[E]ach of controllers 116 and 122 is equivalent to
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`the combination of primary and secondary controllers 16 and 22 in FIG. 1.”), Fig.
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`3; see also Prelim. Resp. at 33 (Patent Owner’s annotated figure 3 excerpt showing
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`free transfer of data from caches to data storage devices).)
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`Petitioners and Dr. Katz cited to these disclosures in pointing out that “[t]he
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`Chong Reference discloses two data storage devices, where identical data is
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`written to each.” (Petition at 13; id. at 15 (“The Chong Reference discloses the
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`preamble by describing a system having multiple hosts connected redundantly to a
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`set of data storage device, where identical data is written to each storage device for
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`data mirroring”) (citations omitted); Ex. 1001, ¶ 36 (“The Chong Reference
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`discloses a system with a RAID configuration. Data is written identically to both
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`storage devices 124 and 125 in the system.”) (citations omitted).)
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`As shown in Chong’s Figure 3, therefore, the identical data in each
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`cache―received from each host―is transferred to both data storage devices, 124
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`and 125, resulting in “data mirroring.” (See, e.g., Petition at 13, 15, 32-33; Ex.
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`1001, ¶ 36; Ex. 1005 at 3:34-40, 4:26-28, Fig. 3.) Because the identical data is
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`3
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`already in both storage devices through this data flow, no write between the cache
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`in one controller and the data storage device associated with the other controller is
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`necessary for “data mirroring,” unless and until a controller fails. (Id.; Ex. 1005 at
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`4:52-62, Fig. 4; contra Prelim. Resp. at 34.)1 Thus, Petitioners submit that the
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`Board misapprehended and/or overlooked pertinent evidence identified by
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`Petitioners in finding that Chong does not disclose “data mirroring.”
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`Second, as shown in the Petition, Chong explicitly discloses transparent data
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`storage device fail-over. For example, Chong states that it relates “to a method and
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`apparatus that performs efficient caching operations and allows failover (i.e.,
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`switch-over) in controllers and/or data storage devices to be transparent to a
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`server or a host computer.” (Ex. 1005 at 1:7-10; Petition at 13; Ex. 1001, ¶ 36.)
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`Chong thus teaches that each controller’s fail-over software detects failure “in
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`itself, the other controller, or data storage devices 124, 125.” (Ex. 1005 at 3:3-6,
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`4:28-32; Petition at 13, 21-22, 33, 43-44, 51, 56-57; Ex. 1001, ¶¶ 66, 97, 99.)
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`Chong further teaches that the fail-over operation described in columns 4 and 5
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`“also applies if one of data storage devices 124 and 125 fails.” (Ex. 1005 at 5:2-3;
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`1 Because the transfer of identical data from the hosts to both storage devices is
`clearly shown in Chong’s Fig. 3 and described in the portions of the
`specification cited in the Petition and Dr. Katz’s Declaration (see, e.g., Petition
`at 13, 15, 32-33; Ex. 1001, ¶ 36), Petitioners could not have anticipated and
`addressed Patent Owner’s flawed interpretation of Chong in the Petition before
`it was raised for the first time in Patent Owner’s Preliminary Response.
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`4
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`Petition at 11, 13, 21-22, 30-31; Ex. 1001, ¶¶ 66, 97, 99.) Again, Petitioners and
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`Dr. Katz cited these disclosures in noting that “[t]he Chong Reference is directed
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`to efficient caching operations and fail-over support in data storage controllers
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`and/or data storage devices” and that Chong’s “fail-over software detects faults in
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`either of the storage controllers or the storage devices.” (Petition at 11, 13
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`(citations omitted); see also Ex. 1001, ¶ 36 (“The Chong Reference is directed to
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`efficient caching operations and fail-over support in data storage controllers and/or
`
`data storage devices.”), 40 (“These multiple connections provide redundancy in
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`the event of a controller or data storage device failure”) (citations omitted).)
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`Although the Board acknowledged these disclosures (Decision at 6, 9), it
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`dismissed them on the basis that the combination of “data mirroring” and “fault
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`tolerance” had not been “shown sufficiently.” (id. at 9.) But as discussed above,
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`the Board’s finding that Chong does not disclose “data mirroring” was erroneous.
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`With respect, therefore, the Board’s reasoning for not crediting Chong’s disclosure
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`of data storage device fail-over was also erroneous.
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`Because the Board’s underlying factual findings were erroneous, Petitioners
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`respectfully submit that its ultimate conclusion with respect to Chong’s disclosure
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`of a “RAID” and Dr. Katz’s opinions, was an abuse of discretion. Notably, as he
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`declared, Dr. Katz was one of the researchers who developed the framework
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`underlying the initial development of RAID systems in the late 1980s, and who
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`5
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`coined the term “RAID.” (Ex. 1001, ¶¶ 11, 15.) Patent Owner itself has relied
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`upon Dr. Katz regarding the meaning of “RAID” in these and related proceedings.
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`(See Prelim. Resp. at 17-18; IPR2014-00949 Paper 16 at 16.) Thus, Dr. Katz is
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`preeminently qualified to opine as to whether Chong discloses a RAID, and his
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`opinions should not have been so lightly dismissed.
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`In sum, because the Board misapprehended and/or overlooked pertinent
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`disclosures in Chong identified by Petitioners and Dr. Katz in concluding that
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`Chong does not disclose a “RAID,” and because the Board did not find any other
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`claim element to be absent from Chong’s disclosures, rehearing should be granted,
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`and inter partes review of all claims of the ’346 patent based on Chong instituted.
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`II. LEGAL STANDARD
`A rehearing request “must specifically identify all matters the party believes
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`the Board misapprehended or overlooked, and the place where each matter was
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`previously addressed in a motion, an opposition, or a reply.” 37 C.F.R. § 42.71(d).
`
`Decisions are reviewed for an abuse of discretion, 37 C.F.R. § 42.71(c), which
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`occurs when a “decision was based on an erroneous conclusion of law or clearly
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`erroneous factual findings, or . . . a clear error of judgment.” PPG Indus. Inc. v.
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`Celanese Polymer Specialties Co. Inc., 840 F.2d 1565, 1567 (Fed. Cir. 1988).
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`III. THE BOARD ABUSED ITS DISCRETION IN FINDING THAT
`CHONG DOES NOT DISCLOSE A “RAID”
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`The Board’s decision to decline institution rested on two primary factual
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`6
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`findings: (1) that Chong does not disclose identical data written to the two data
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`storage devices; and (2) that Chong does not disclose fail-over of data storage
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`devices. (Decision at 8-9.) Based solely on those findings, the Board concluded
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`that Dr. Katz’s opinions were “not credible” and should be given “little weight,”
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`and that Petitioners had failed to show an express disclosure of a “RAID” in
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`Chong. (Id.) With respect, however, both of the Board’s underlying factual
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`findings were erroneous, misapprehending and/or overlooking pertinent
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`disclosures in Chong identified by Petitioners and Dr. Katz.
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`1.
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`The Board Misapprehended And/Or Overlooked Chong’s
`Disclosure Of “Data Mirroring”
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`The Board first found that “there is insufficient support for Petitioner’s
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`contention that Chong discloses two data storage devices that appear as a single,
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`reliable drive” because it was “not persuaded that Chong discloses writing identical
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`data to both data storage devices, as Dr. Katz states.” (Decision at 8.) Rather, the
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`Board accepted the Patent Owner’s description of Chong’s data flow. (Id.) In so
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`doing, however, the Board misapprehended and/or overlooked Chong’s disclosures
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`identified in the Petition and Dr. Katz’s supporting Declaration.
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`As shown in the Petition and Dr. Katz’s supporting declaration, Chong
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`discloses identical data being written from each host to the caches in both
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`controllers 116 and 122. (Petition at 10-11, 13-15, 17-18, 28-30, 32-36, 41-44, 50-
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`56; Ex. 1001, ¶ 36, 40, 50, 57, 60, 63, 93, 95; Ex. 1005 at 3:45-48, 4:26-28.) This
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`7
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`was conceded by the Patent Owner in its Preliminary Response, as demonstrated
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`by its annotations of Chong Figure 3:
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`
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`(Prelim. Resp. at 31.) More particularly, as shown in Patent Owner’s own
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`annotated Figure 3, Chong discloses that the data from Host 1 is transferred by
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`switching device 111
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`through a primary network
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`interface controller
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`(GBIC/PSOC) to the cache in controller 116, and also through a secondary
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`network interface controller (GBIC/PSOC) to the cache in controller 122. (Petition
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`at 10-11, 13-15, 17-18, 28-30, 32-36, 41-44, 50-56; Ex. 1001, ¶ 36, 40, 50, 57, 60,
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`63, 93, 95; Ex. 1005 at 3:45-48, 4:26-28.) This is shown by the green arrows in
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`Patent Owner’s annotated Figure 3. (Prelim. Resp. at 31.) Similarly, the data from
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`Host 2 is transferred by switching device 112 through the primary network
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`interface controller (GBIC/PSOC) to the cache in controller 122, and also through
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`the secondary network interface controller (GBIC/PSOC) to the cache in controller
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`116. (Petition at 10-11, 13-15, 17-18, 28-30, 32-36, 41-44, 50-56; Ex. 1001, ¶ 36,
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`40, 50, 57, 60, 63, 93, 95; Ex. 1005 at 3:45-48, 4:26-28.) This is shown by the
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`hashed blue arrows in Patent Owner’s annotated figure 3. (Prelim. Resp. at 31.)2
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`Further, as explained in the Petition and by Dr. Katz, Chong also discloses
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`that data from the cache in each controller is transferred to the data storage device
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`directly associated with that controller. (Petition at 10-11, 13-15, 17-18, 28-30, 32-
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`35, 41-42, 50-56; Ex. 1001, ¶ 36, 42, 48, 50, 93, 95; Ex. 1005 at 3:16-22, 25-30,
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`34-40, 4:26-28, Fig. 3.) This too was acknowledged by the Patent Owner in its
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`Preliminary Response, as again demonstrated by its annotations of Chong Figure 3:
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`
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`(Prelim. Resp. at 33.) Specifically, Chong discloses that data in the cache of
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`2 As the Board noted, in describing Figure 1’s configuration, Chong discloses
`that “[s]ince both primary and secondary controllers 16 and 22 receive the same
`data, both caches 66 and 82 are filled at the same time in response to write
`commands from the host.” (Petition at 33, 38, 50; Ex. 1005 at 3:45-48; Prelim.
`Resp. at 27-29; Decision at 8.) Chong also discloses that, in the dual storage
`device configuration shown in Figure 3, “each of controllers 116 and 122 is
`equivalent to the combination of primary and secondary controllers 16 and 22
`in Fig. 1.” (Petition at 33, 35-36, 39, 42-43, 51, 53-59; Ex. 1005 at 4:26-28.)
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`9
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`controller 116 is transferred to data storage device 124, while the identical data in
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`the cache of controller 122 is transferred to data storage device 125. (Petition at 10-
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`11, 13-15, 17-18, 28-30, 32-35, 41-42, 50-56; Ex. 1001, ¶ 36, 42, 48, 50, 93, 95;
`
`Ex. 1005 at 3:16-22, 25-30, 34-40, 4:26-28, Fig. 3.) This is shown by the arrows
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`circled in red in Patent Owner’s annotated figure. (Prelim. Resp. at 33.)
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`
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`Patent Owner did not identify any teaching in Chong suggesting that only a
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`portion of the cached data is transferred to its associated data storage device, as
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`would be required for identical data not to be written to both data storage devices.
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`Rather, as Patent Owner acknowledged, Chong’s Figure 3 shows data is freely
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`transferred between each cache and its associated data storage device. (Ex. 1005 at
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`Fig. 3, 3:16-22, 25-30, 34-40, 4:26-28; Petition at 10-11, 13-15, 17-18, 28-30, 32-
`
`35, 41-42, 50-56; Ex. 1001, ¶¶ 36, 42, 48, 50, 93, 95.) In this way, identical data
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`from both hosts is written to both storage devices, resulting in “data mirroring.”3
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`Nevertheless, Patent Owner argued that “data mirroring” was not shown
`
`because Chong teaches that data sent through each secondary network interface
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`controller to its associated cache is not written to the data storage device associated
`
`
`3 Patent Owner’s annotated Figure 3 excerpted above shows the arrows depicting
`the data flow through the secondary network interface controllers terminating at
`the respective caches. (Prelim Resp. at 31.) But Patent Owner identified no
`support for its assertion that the data transferred through the secondary network
`interface controllers is somehow stopped at the caches and not transferred with
`the other cached data to the associated data storage device.
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`10
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`with the other controller. (Prelim. Resp. at 27-35.) Specifically, in the context of
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`Chong’s Figure 3, Patent Owner asserted that, in normal mode before fail-over, the
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`data written to the cache in controller 116 is not transferred to data storage device
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`125, while the data written to the cache in controller 122 is not transferred to data
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`storage device 124. (Prelim. Resp. at 31.)
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`But that “missing write” theory is incorrect, and does not demonstrate lack
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`of “data mirroring.” As explained in the Petition and as Patent Owner
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`acknowledged, each cache already has identical data before fail-over from the
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`transfers through primary and secondary network interface controllers. (Petition at
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`10-11, 13-15, 17-18, 28-30, 34-40, 41-44, 50-56; Ex. 1001, ¶ 36, 40, 50, 57, 60, 63,
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`93, 95; Ex. 1005 at 3:45-48, 4:26-28; see also Prelim. Resp. at 33.) And that
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`identical data is transferred directly between each cache and its associated data
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`storage device, resulting in identical data in each data storage device. (Petition at
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`10-11, 13-15, 17-18, 28-30, 32-35, 41-42, 50-56; Ex. 1001, ¶ 36, 42, 48, 50, 93,
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`95; Ex. 1005 at 3:16-22, 25-30, 36-38, 4:26-28, Fig. 3; see also Prelim. Resp. at
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`33.) 4 There is thus no need for a write between the cache in one controller and the
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`4 Similarly, in the context of Chong’s single data storage device embodiment
`shown in Figure 1, Patent Owner pointed out that the data written to cache 82 is
`not transferred to data storage device 24 when in normal mode before fail-over.
`(Prelim. Resp. at 28.) Instead, the secondary controller only “listens” to
`messages going to the primary controller in “wire tap” mode. (Id.) That makes
`sense, since data storage device 24 already has identical data transferred
`through cache 66, and there is no need for it to receive a second copy.
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`storage device associated with the other controller to enable “data mirroring”
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`unless and until a controller fails. (Contra Prelim. Resp. at 34; Decision at 9.)
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`In sum, therefore, by accepting Patent Owner’s “missing write” theory and
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`reaching the erroneous finding that Chong does not disclose “data mirroring”, the
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`Board misapprehended and/or overlooked Chong’s pertinent disclosures identified
`
`by Petitioners and Dr. Katz, and therefore abused its discretion.
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`2.
`
`The Board Misapprehended And/Or Overlooked Chong’s
`Disclosure Of Fail-Over Of Data Storage Devices
`
`The Board’s second underlying factual finding supporting its conclusion that
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`Chong does not describe a RAID was that “Chong’s disclosure of the fail-over
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`operation of controller failure does not support the contention that Chong also
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`discloses a fail-over operation for the data storage devices.” (Decision at 8-9.)
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`With respect, that factual finding also was erroneous.
`
`Indeed, Chong explicitly states that it relates to “to a method and apparatus
`
`that performs efficient caching operations and allows failover (i.e., switch-over) in
`
`controllers and/or data storage devices to be transparent to a server or a host
`
`computer.” (Ex. 1005 at 1:7-10.) Chong thus teaches that the fail-over software in
`
`each controller in the Chong system detects failure “in itself, the other controller,
`
`or data storage devices 124, 125.” (Id. at 3:3-6, 4:28-32.) To that end, Chong
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`teaches that “[t]he fail-over operation [described in column 4 and depicted in
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`Figures 3 and 4] also applies if one of data storage devices 124 and 125 fails.”
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`12
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`(Id. at 5:2-3.) Petitioners addressed these disclosures in detail in the Petition and in
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`Dr. Katz’s declaration. (Petition at 11-13, 21-22, 30-31, 32-34, 42-44, 56-58; Ex.
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`1001 at ¶¶ 36, 40, 65-66, 97, 99-100.)
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`Although these passages were cited by the Board in the Decision (at 6, 9), it
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`appears that the Board misapprehended their significance and therefore failed to
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`give them due weight. In that regard, the Board’s stated reason for summarily
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`dismissing them from consideration was that it was not persuaded that Chong
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`discloses “data mirroring” in combination with these “fault tolerance” disclosures.
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`(Decision at 9.) As discussed above, however, the Board’s finding that Chong
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`does not disclose “data mirroring” was itself erroneous. Indeed, as Patent Owner
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`itself acknowledged, one skilled in the art would understand the need for “data
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`mirroring” to enable fail-over of data storage devices as recited in Chong, to ensure
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`that no data is lost. (Prelim. Resp. at 36.) That is precisely what Chong describes.
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`For these reasons, Petitioners respectfully submit that the Board’s erroneous
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`finding that Chong does not describe fail-over of data storage devices further
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`misapprehended and/or overlooked Chong’s pertinent disclosures identified by
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`Petitioners and Dr. Katz, and therefore further constituted an abuse of discretion.
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`3.
`
`The Board Abused Its Discretion In Not Giving Due Weight To
`Dr. Katz’s Opinions
`
`Based solely on its findings regarding “data mirroring” and “fault tolerance,”
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`the Board concluded that Dr. Katz’s opinions regarding “RAID” were “not
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`13
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`credible” and should be given “little weight.” (Decision at 8-9.) However, because
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`the Board’s underlying findings were erroneous for the reasons discussed above, so
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`too was its summary dismissal of Dr. Katz’s opinions based on those findings.
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`Indeed, in refusing to credit Dr. Katz’s opinions, the Board overlooked that
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`Dr. Katz was one of the researchers who pioneered the development of RAID
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`systems in the late 1980s, and coined the term “RAID.” (Ex. 1001, ¶¶ 11, 15.)
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`Patent Owner relied on Dr. Katz’s definition of “RAID” in this and other
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`proceedings regarding the ’346 patent. (Prelim. Resp. at 17-18; IPR2014-00949
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`Paper 16 at 16.) Thus, Dr. Katz is preeminently qualified to opine as to whether
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`Chong discloses a RAID. And his opinions were credible and consistent with
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`Chong’s disclosures. The Board erred by failing to give them due weight.
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`4.
`
`The Board Abused Its Discretion In Finding That Chong Does
`Not Describe A RAID
`
`At base, the Board’s decision not to institute review was founded entirely on
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`its factual findings with respect to “data mirroring” and “fault tolerance” of data
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`storage devices. (Decision at 7-9.) But as explained above, those findings were
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`erroneous and misapprehended and/or overlooked the pertinent disclosures in
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`Chong identified by Petitioners and Dr. Katz. (See Sections 1 and 2, supra.) It
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`follows that the Board’s ultimate conclusion that Chong does not describe a
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`“RAID” also was erroneous, and therefore constituted an abuse of discretion.
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`14
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`IV. THE BOARD DID NOT FIND THAT ANY OTHER ELEMENT OF
`THE ’346 PATENT CLAIMS WAS ABSENT FROM CHONG
`
`The Board based its rejection of the Petition solely on its acceptance of
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`Patent Owner’s assertion that Chong does not disclose a “RAID” which, for the
`
`reasons discussed above, was erroneous. The Board did not find that any other
`
`element of the ’346 Patent claims is absent from Chong. Indeed, as demonstrated
`
`in the Petition and Dr. Katz’s declaration, Chong explicitly describes each and
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`every element of the challenged claims. (See Petition and Ex. 1001, generally.)
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`Thus, Petitioners submit that they have demonstrated a reasonable likelihood that
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`claims 1-9 of the ’346 patent are anticipated by Chong.
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`V. CONCLUSION
`For the foregoing reasons, Petitioners request that the Board grant
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`Petitioners’ rehearing request and initiate inter partes review of claims 1 through 9
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`of the ’346 patent under 35 U.S.C. § 102 as anticipated by Chong.
`
`Date: January 9, 2015
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`Respectfully submitted,
`
`/s/ Todd M. Friedman
`Todd M. Friedman (Reg. No. 42,559)
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, NY 10022
`todd.friedman@kirkland.com
`Telephone: (212) 446-4800
`Fax: (212) 446-4900
`
`Attorneys For Petitioners
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`15
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`Petitioners’ Request for Rehearing: IPR2014-00976
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing Petitioners’
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`Request for Rehearing Pursuant to 37 C.F.R. §§ 42.71(c) and (d) was served on
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`January 9, 2015, via electronic mail, as consented to by counsel, to the Patent
`
`Owner by serving the counsel of record as follows:
`
`Matthew C. Phillips, Reg. No. 43,403
`matthew.phillips@renaissanceiplaw.com
`Derek Meeker, Reg. No. 53,313
`derek.meeker@renaissanceiplaw.com
`Renaissance IP Law Group LLP
`9600 SW Oak Street, Suite 560
`Portland, Oregon 97223
`
`Alexander C.D. Giza, Reg. No. 51,740
`agiza@raklaw.com
`Russ August & Kabat
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, California 90025
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`
`
`/s/ Todd M. Friedman
`Todd M. Friedman (Reg. No. 42,559)
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, NY 10022
`todd.friedman@kirkland.com
`Telephone: (212) 446-4800
`Fax: (212) 446-4900
`Attorneys For Petitioners
`
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