`
`
`
`
`Case No. IPR2015-00811
`
`
`Filed on behalf of: VirnetX Inc.
`By:
`
`Joseph E. Palys
`Paul Hastings LLP
`875 15th Street NW
`Washington, DC 20005
`Telephone: (202) 551-1996
`Facsimile: (202) 551-0496
`E-mail: josephpalys@paulhastings.com
`
`
`
`
`
`
`Paper No.
`Filed: June 18, 2015
`
`Naveen Modi
`Paul Hastings LLP
`875 15th Street NW
`Washington, DC 20005
`Telephone: (202) 551-1990
`Facsimile: (202) 551-0490
`E-mail: naveenmodi@paulhastings.com
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
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`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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`
`
`
`
`APPLE INC.
`Petitioner
`
`v.
`
`VIRNETX INC.
`Patent Owner
`
`
`
`
`
`
`
`Case IPR2015-00811
`Patent 8,868,705
`
`
`
`
`
`
`
`
`
`
`Patent Owner’s Preliminary Response
`to Petition for Inter Partes Review
`of U.S. Patent No. 8,868,705
`
`
`
`
`
`
`
`

`

`
`
`I.
`
`II.
`
`
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`Case No. IPR2015-00811
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`Table of Contents
`
`Introduction ...................................................................................................... 1
`
`The Petition Fails to Meet the Requirements for Instituting an
`Inter Partes Review ......................................................................................... 1
`
`A.
`
`B.
`
`C.
`
`The Petition Improperly Relies on Material That It Fails to
`Establish Is Statutory Prior Art ............................................................. 2
`
`The Petition’s Obviousness Ground Is Redundant and Should
`Be Denied .............................................................................................. 6
`
`The Petition Fails to Show a Reasonable Likelihood That
`Petitioner Will Prevail With Respect to Even One Claim ..................10
`
`1.
`
`2.
`
`3.
`
`4.
`
`The Cited Portions of Aventail Do Not Disclose the
`Claimed “Determining” ............................................................12
`
`The Cited Portions of Aventail Do Not Disclose the
`Claimed Features of At Least Claims 2, 9, 16, and 33 .............19
`
`The Petition Does Not Apply the Proposed Claim
`Construction for “Provisioning Information” To Aventail .......20
`
`The Petition Fails to Comply with 35 U.S.C. §312(a)(3)
`and 37 C.F.R. § 42.104(b)(4) ....................................................22
`
`III. The Petition’s Claim Constructions Are Flawed and Should Be
`Rejected .........................................................................................................23
`
`A. Overview of the ’705 Patent ................................................................25
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`Level of Ordinary Skill in the Art .......................................................26
`
`“Encrypted Communications Channel” Phrases (Claims 1, 2, 4-
`7, 9, 11-13, 18, 21, 22, and 26-29) ......................................................27
`
`“Intercept[ing] . . . A Request to Look up an Internet Protocol
`(IP) address” (Claims 1 and 21) ..........................................................30
`
`“Domain Name” (Claims 1, 3, 10, 21, and 25) ...................................34
`
`“Secure Domain Name” (Claims 3, 10, and 25) .................................35
`
`i
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`
`G.
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`H.
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`Case No. IPR2015-00811
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`“Provisioning Information” (Claims 1, 9, and 21) ..............................38
`
`“Modulated Transmission Link/Unmodulated Transmission
`Link” (Claims 5, 6, 11, 12, 27 and 28) ................................................40
`
`I.
`
`“Phone” (Claims 8, 15, 30, and 32) ....................................................42
`
`IV. Conclusion .....................................................................................................42
`
`
`
`ii
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`Case No. IPR2015-00811
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Apple Inc. v. Evolutionary Intelligence, LLC,
`IPR2014-00079, Paper No. 8 (Apr. 25, 2014) .................................................... 11
`
`Apple Inc. v. VirnetX Inc.,
`IPR2014-00237, Paper No. 15 (Sept. 15, 2014). .......................................... 30, 35
`
`Apple Inc. v. VirnetX Inc.,
`IPR2014-00483, Paper No. 11 (Sept. 15, 2014). .................................................. 9
`
`Elec. Frontier Found. v. Pers. Audio, LLC,
`IPR2014-00070, Paper No. 21 (Apr. 18, 2014) ................................................ 5, 6
`
`EMC Corp. v. Personal Web Techs., LLC,
`IPR2013-00087, Paper No. 25 (June 5, 2013) ................................................ 8, 10
`
`Garmin Int’l, Inc. v. Cuozzo Speed Techs. LLC,
`IPR2012-00001, Paper No. 15 (Jan. 9, 2013) ..................................................... 24
`
`Google Inc. et al. v. EveryMD.com LLC,
`IPR2014-00347, Paper No. 9 (May 22, 2014) .................................................... 11
`
`L-3 Comm. Holdings, Inc. v. Power Survey, LLC,
`IPR2014-00832, Paper No. (Nov. 14, 2014) ........................................................ 3
`
`Liberty Mut. Ins. Co. v. Progressive Cas. Ins. Co.,
`CBM2012-00003, Paper No. 7 (Oct. 25, 2012) ............................................ 7, 8, 9
`
`Microsoft Corp. v. Proxyconn, Inc.,
`No. 2014-1542, slip op. (Fed. Cir. Jun. 16, 2015) ........................................ 24, 36
`
`Motorola Solutions, Inc. v. Mobile Scanning Techs., LLC,
`IPR2013-00093, Paper No. 28 (Apr. 29, 2013) .................................................. 24
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) .................................................... 24, 40
`
`Samsung Elecs. Co. v. Rembrandt Wireless Techs., LP,
`IPR2014-00514, Paper No. 18 (Sep. 9, 2014) .................................................. 5, 6
`
`iii
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`

`
`Tempur Sealy Int’l, Inc. v. Select Comfort Corp.,
`IPR2014-01419, Paper No. 9 (Mar. 27, 2015) ................................................... 11
`
`Case No. IPR2015-00811
`
`VirnetX Inc. v. Cisco Sys. Inc.,
`767 F.3d 1308 (Fed. Cir. 2014) .......................................................................... 29
`
`In re Zletz,
`893 F.2d 319 (Fed. Cir. 1989) ............................................................................ 23
`
`Federal Statutes
`
`35 U.S.C. § 311(b) ............................................................................................. 1, 2, 4
`
`35 U.S.C. § 312(a)(3) ................................................................................. 1, 2, 22, 23
`
`35 U.S.C. § 313 .......................................................................................................... 1
`
`35 U.S.C. § 314(a) ................................................................................... 2, 11, 18, 20
`
`Federal Rules
`
`37 C.F.R. § 1.322(a)(3) ............................................................................................ 30
`
`37 C.F.R. § 42.1(b) .................................................................................................... 7
`
`37 C.F.R. § 42.100(b) .............................................................................................. 23
`
`37 C.F.R. § 42.104(b) ................................................................................................ 1
`
`37 C.F.R. § 42.104(b)(4) .............................................................................. 11, 22, 23
`
`37 C.F.R. § 42.107 ..................................................................................................... 1
`
`
`
`
`
`iv
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`
`I.
`
`Introduction
`
`
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`Case No. IPR2015-00811
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`Patent Owner VirnetX Inc. respectfully submits this Preliminary Response
`
`in accordance with 35 U.S.C. § 313 and 37 C.F.R. § 42.107, responding to the
`
`Petition for Inter Partes Review (the “Petition”) filed by Apple Inc. against Patent
`
`Owner’s U.S. Patent No. 8,868,705 (“the ’705 patent”). Patent Owner requests
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`that the Board not institute inter partes review for several reasons.
`
`First, Petitioner relies on material that it has not shown is a “patent[] or
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`printed publication[]” under 35 U.S.C. § 311(b). Second, Petitioner proposes
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`redundant grounds without identifying how any one ground improves on any other,
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`contravening Board precedent requiring petitioners to identify differences in
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`proposed rejections. Next, Petitioner has not met its burden of demonstrating a
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`reasonable likelihood of prevailing in proving unpatentability of any challenged
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`’705 patent claim. The Petition also fails to identify where and what in the prior
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`art discloses each claimed feature, violating the particularity requirements of 35
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`U.S.C. § 312(a)(3) and 37 C.F.R. § 42.104(b). And finally, Petitioner proposes a
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`number of incorrect claim constructions upon which it bases its unpatentability
`
`grounds. Each of these reasons requires denial of institution.
`
`II. The Petition Fails to Meet the Requirements for Instituting an
`Inter Partes Review
`The grounds that may be raised in a petition for inter partes review (IPR) are
`
`limited to those “that could be raised under section 102 or 103 and only on the
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`basis of prior art consisting of patents or printed publications.” 35 U.S.C. § 311(b).
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`Case No. IPR2015-00811
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`In addition, the Board will not consider redundant grounds and to the extent they
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`are proposed, Petitioner carries the burden of “articulat[ing] a meaningful
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`distinction in terms of relative strengths and weaknesses with respect to application
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`of the prior art disclosures to one or more claim limitations.” ScentAir Techs., Inc.
`
`v. Prolitic, Inc., IPR2013-00180, Paper No. 18 at 3 (Aug. 26, 2013); see also Idle
`
`Free Sys., Inc. v. Bergstrom, Inc., IPR2012-00027, Paper No. 26 at 3 (June 11,
`
`2013) (“[A]t [the] time of institution the Board analyzes the petition on a claim-by-
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`claim, ground-by-ground basis, to eliminate redundant grounds.”) To be instituted,
`
`a petition must also “show[] that there is a reasonable likelihood that the petitioner
`
`would prevail with respect to at least 1 of the claims challenged in the petition.”
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`35 U.S.C. § 314(a). This showing requires that the petition “identif[y], in writing
`
`and with particularity, each claim challenged, the grounds on which the challenge
`
`to each claim is based, and the evidence that supports the grounds for the challenge
`
`to each claim.” 35 U.S.C. § 312(a)(3). Petitioner fails to meet each of these
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`requirements.
`
`A. The Petition Improperly Relies on Material That It Fails to
`Establish Is Statutory Prior Art
`Prior art relied on in a petition for inter partes review may only consist of
`
`“patents or printed publications.” 35 U.S.C. § 311(b). As such, the burden is on
`
`Petitioner to establish that RFC 2401, which is not a patent, was “sufficiently
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`2
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`accessible to the public interested in the art.” In re Klopfenstein, 380 F.3d 1345,
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`Case No. IPR2015-00811
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`1348 (Fed. Cir. 2004); see also Actavis, Inc. v. Research Corp. Techs., Inc.,
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`IPR2014-01126, Paper No. 22 at 9-13 (Jan. 9, 2015) (finding that “Petitioner has
`
`not satisfied its burden to prove that [a] thesis is a printed publication under
`
`§ 102(b)”); L-3 Comm. Holdings, Inc. v. Power Survey, LLC, IPR2014-00832,
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`Paper No. 9 at 12 (Nov. 14, 2014) (“The party seeking to introduce the reference
`
`‘should produce sufficient proof of its dissemination or that it has otherwise been
`
`available and accessible to persons concerned with the art to which the document
`
`relates and thus most likely to avail themselves of its contents.’”); A.R.M., Inc. v.
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`Cottingham Agencies Ltd., IPR2014-00671, Paper No. 10 at 7 (Oct. 3, 2014).
`
`Petitioner merely alleges that “RFC 2401 (Ex. 1008) was published in
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`November 1998.” (Pet. at 24 (citing Ex. 1008 at 1).) However, Petitioner does not
`
`provide evidence to establish that RFC 2401 would have been sufficiently
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`accessible to the public interested in the art on that date. While RFC 2401
`
`nominally recites “November 1998” on its first page, nowhere in the document is
`
`there any indication as to what the date means. (See Ex. 1008 at 1.)
`
`RFC 2026, provided by the same “Network Working Group” as RFC 2401
`
`(compare Ex. 1036 at 1, with Ex. 1008 at 1), purports to “document[] the process
`
`used by the Internet community for the standardization of protocols and
`
`procedures” and to “define[] the stages in the standardization process, the
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`3
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`requirements for moving a document between stages and the types of documents
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`Case No. IPR2015-00811
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`used during this process.” (See Ex. 1036 at 1.)1 Petitioner’s expert, Dr. Tamassia,
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`refers to RFC 2026 in his discussion of how RFCs are “typically” released. (Ex.
`
`1005 at ¶ 152.) Neither Dr. Tamassia nor the Petition establish or even allege that
`
`Dr. Tamassia has personal knowledge that RFC 2401 was actually released in
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`November 1998 in the way he says RFCs are typically released. However, even if
`
`RFC 2401 was released in this manner (and Patent Owner submits that Petitioner
`
`has not provided any evidence to establish that it was), Petitioner has still not
`
`established that RFC 2401 qualifies as a printed publication within the meaning of
`
`Section 311(b).
`
`RFC 2026 generally states that “RFCs can be obtained from a number of
`
`Internet hosts using anonymous FTP, gopher, World Wide Web, and other Internet
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`document-retrieval systems.” (Id. at 6.) RFC 2026 does not explain how the
`
`1 The Petition does not cite to RFC 2026 or to any testimony citing to the
`
`document. Therefore, it cannot properly be relied upon to establish RFC 2401 as a
`
`printed publication. However, Patent Owner addresses the document to the extent
`
`the Board considers statements by Petitioner’s expert regarding RFC 2026 not
`
`cited in the Petition. As explained, these statements, and RFC 2026 itself, still fail
`
`to establish that RFC 2401 qualifies as a printed publication within the meaning of
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`Section 311(b).
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`4
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`public interested in the art would become aware of the location of such Internet
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`Case No. IPR2015-00811
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`document-retrieval systems. Indeed, Dr. Tamassia suggests that the intended
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`audience of RFC 2401 would have been limited to the “Network Working Group,”
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`stating the nominal date that RFC documents are “published” merely “starts a
`
`period for others to provide comments on the document” (in particular, what RFC
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`2026 refers to as “community review”). (See Ex. 1005 at ¶ 152; Ex. 1036 at 20.)
`
`RFC 2026 also acknowledges that “[m]any standards groups other than the IETF
`
`create and publish standards documents.” (See id. at 24.)
`
`In the past, the Board has found that references similar to RFC 2401 are not
`
`statutory prior art. For example, in Samsung Elecs. Co. v. Rembrandt Wireless
`
`Techs., LP, IPR2014-00514, Paper No. 18 at 5, 7 (Sep. 9, 2014), the petitioner
`
`relied on a “Draft Standard” of the Institute of Electrical and Electronics Engineers
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`(“IEEE”). The Board found that the petitioner had failed to establish the Draft
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`Standard qualified as a printed publication because the petitioner did not provide
`
`evidence as to whether the Draft Standard was made available to persons outside of
`
`the IEEE “Working Group” responsible for the Draft Standard and how members
`
`of the public would have known about the Draft Standard. See id. at 7-8.
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`Similarly, in Elec. Frontier Found. v. Pers. Audio, LLC, IPR2014-00070, Paper
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`No. 21 at 22-24 (Apr. 18, 2014), the Board found that a reference was not a printed
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`publication where a “Petitioner fail[ed] to provide any information regarding [a
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`reference] posting, the group [to which the reference was posted], who is in the
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`Case No. IPR2015-00811
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`group, or the size of the group.” In both cases, the Board denied institution based
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`on these findings. See Samsung Elecs., IPR2014-00514, Paper No. 18 at 10
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`(“Because Petitioner has not met its burden in establishing that Draft Standard is a
`
`‘printed publication’ and, thus, prior art, Petitioner has not shown a reasonable
`
`likelihood of prevailing on the grounds asserted.”); Elec. Frontier Found.,
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`IPR2014-00070, Paper No. 21 at 26.
`
`Petitioner has similarly failed to meet its burden to establish that RFC 2401
`
`is a printed publication. For example, Petitioner has not provided any evidence as
`
`to (1) whether RFC 2401 was made available to persons outside of the “Network
`
`Working Group”; (2) how members of the public outside of the “Network Working
`
`Group” would have known about RFC 2401; (3) who is in “Network Working
`
`Group”; or (4) the size of the Network Working Group. Therefore, because the
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`Petition does not establish that RFC 2401 was a printed publication to qualify as
`
`prior art, and because all of Petitioner’s proposed rejections rely on RFC 2401, the
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`Board should deny institution of the Petition.
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`B.
`
`The Petition’s Obviousness Ground Is Redundant and Should Be
`Denied
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`Concurrent with this Petition, in which Petitioner challenges claims 1-3, 6,
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`14, 16-25, 28, 31, 33, and 34 of the ’705 patent as obvious over Aventail in view of
`
`RFC 2401, and claims 4, 5, 7, 26, 27, and 29 as obvious over Aventail, RFC 2401,
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`6
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`and Brand, Petitioner also filed a petition for inter partes review in IPR2015-
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`Case No. IPR2015-00811
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`00810 (“the ’810 Petition”). The ’810 Petition challenges the same patent and the
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`same claims, asserting two grounds of rejection. The ’810 Petition’s grounds of
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`rejection simply substitute Aventail with Beser, alleging that claims 1-4, 6, 8-26,
`
`and 28-34 are obvious over Aventail in view of RFC 2401, and that claims 5, 7,
`
`and 27 are obvious over Beser, RFC 2401, and Brand. The Petition fails to assert
`
`or explain why the proposed grounds in the Petition are not redundant of the
`
`grounds in the ’810 Petition. Instead, the Petition contends, without explanation,
`
`that each Petition presents “non-redundant grounds.” (Pet. at 2.) Given the
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`Board’s jurisprudence regarding redundancy, Petitioner’s redundant grounds
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`should be rejected.
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`Redundant grounds place a significant burden on the Board and the patent
`
`owner, and cause unnecessary delay that jeopardizes meeting the statutory deadline
`
`for final written decisions. Liberty Mut. Ins. Co. v. Progressive Cas. Ins. Co.,
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`CBM2012-00003, Paper No. 7 at 2 (Oct. 25, 2012). The consideration of
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`redundant grounds frustrates Congress’s intent that the Board “secure the just,
`
`speedy, and inexpensive resolution of every proceeding,” in violation of 37 C.F.R.
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`§ 42.1(b).
`
`The Board explains that where multiple grounds of rejection are presented,
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`the “[d]ifferences between the claimed invention and the prior art are a critically
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`important underlying factual inquiry . . . .” Liberty Mut. Ins. Co., CBM2012-
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`Case No. IPR2015-00811
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`00003, Paper No. 7 at 2-3. The redundancy inquiry does not focus on “whether the
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`applied prior art disclosures have differences, for it is rarely the case that the
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`disclosures of different prior art references, will be literally identical. EMC Corp.
`
`v. Personal Web Techs., LLC, IPR2013-00087, Paper No. 25 at 3 (June 5, 2013).
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`Rather, the Board considers “whether the petitioner articulated a meaningful
`
`distinction in terms of relatives strengths and weaknesses with respect to
`
`application of the prior art disclosures to one or more claim limitations.” Id. at 3-4.
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`The Petitioner carries the burden of articulating that “meaningful distinction.”
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`ScentAir Techs., IPR2013-00180, Paper No. 18 at 3. Put simply, “[t]o avoid a
`
`holding of redundancy, the Petition has to explain why one reference is better in
`
`one respect but worse in another respect.” Toyota Motor Corp. v. Am. Vehicular
`
`Sciences LLC, IPR2013-00421, Paper No. 15 at 29 (Jan. 13, 2014).
`
`Petitioner’s burden of articulating a distinction between its redundant
`
`grounds is not lessened or removed simply because those grounds may appear in
`
`more than one petition. In fact, the policy considerations behind denying
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`redundant grounds are even more compelling when those grounds are presented
`
`across multiple petitions. Multiple petitions necessitate multiple written decisions
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`and an analysis of a corresponding number of briefs, as well as the potential for
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`differing panels of judges, multiple scheduling conferences, and multiple oral
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`arguments—all of which tax the Board’s resources and diminish its ability to
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`Case No. IPR2015-00811
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`ensure the speedy resolution of each proceeding. Moreover the Board has
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`previously recognized grounds as being redundant across petitions and dismissed
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`the redundant grounds. See Apple Inc. v. VirnetX Inc., IPR2014-00483, Paper No.
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`11 at 6 (Sept. 15, 2014).
`
`In Liberty Mutual, the Board identified two types of redundant rejections:
`
`(1) “horizontally” redundant rejections and (2) “vertically” redundant rejections.
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`Liberty Mut. Ins. Co., CBM2012-00003, Paper No. 7 at 3. The Board explained
`
`that horizontally redundant rejections apply “a plurality of prior art references . . .
`
`not in combination to complement each other but as distinct and separate
`
`alternatives.” Id. Vertical redundancy “exists when there is assertion of an
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`additional prior art reference to support another ground of unpatentability when a
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`base ground already has been asserted against the same claim without the
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`additional reference and the Petitioner has not explained what are the relative
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`strength and weakness of each ground.” Id. at 12.
`
`Here, the Petition is horizontally redundant in view of the ’810 Petition. In
`
`both petitions, Petitioner alleges that claims 1-3, 6, 14, 16-25, 28, 31, 33, and 34
`
`are rendered obvious by either Beser or Aventail in view of RFC 2401, and that
`
`claims 5, 7, and 27 are rendered obvious by either Beser or Aventail in view of
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`RFC 2401 and Brand. These grounds are horizontally redundant and Petitioner
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`Case No. IPR2015-00811
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`fails to provide any explanation to the contrary.
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`In the instant Petition, Petitioner claims that Aventail discloses each of the
`
`claimed limitations, including a “communications channel,” but relies on RFC
`
`2401 for the claimed “encrypted communications channel.” (Pet. at 27-43.)
`
`Similarly, in the ’810 Petition, Petitioner claims that Beser discloses each of the
`
`claimed limitations, including a communications channel, but again relies on RFC
`
`2401 for the claimed “encrypted communications channel.” Attempting to address
`
`redundancy, Petitioner claims its grounds are “non-redundant” because each
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`petition “present[s] unique correlations of the challenged ’705 claims to the prior
`
`art.” (Pet. at 2.) But, as the Board has explained, a redundancy analysis does not
`
`focus on whether the prior art references are identical. EMC Corp., IPR2013-
`
`00087, Paper No. 25 at 3. And Petitioner does not attempt to “articulate[] a
`
`meaningful distinction in terms of relative strengths and weaknesses with respect
`
`to application of the prior art disclosures to one or more claim limitations.” Id. at
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`3-4 (emphasis added). Consequently, the Board should deny Petitioner’s
`
`redundant grounds.
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`C. The Petition Fails to Show a Reasonable Likelihood That
`Petitioner Will Prevail With Respect to Even One Claim
`The Board may not authorize an inter partes review unless the information
`
`presented in the petition “shows that there is a reasonable likelihood that the
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`petitioner would prevail with respect to at least 1 of the claims challenged in the
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`Case No. IPR2015-00811
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`petition.” 35 U.S.C. § 314(a). A petition must be denied if it fails to explain
`
`“[h]ow the construed claim is unpatentable,” and “specify where each element of
`
`the claim is found in the prior art patents or printed publications relied upon.” 37
`
`C.F.R. § 42.104(b)(4). See, e.g., Google Inc. et al. v. EveryMD.com LLC,
`
`IPR2014-00347, Paper No. 9 at 18-20 (May 22, 2014) (rejecting petition for
`
`insufficient explanation); Apple Inc. v. Evolutionary Intelligence, LLC, IPR2014-
`
`00079, Paper No. 8 at 17-19 (Apr. 25, 2014) (rejecting petition for including
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`“vague” explanation of the prior art); Tempur Sealy Int’l, Inc. v. Select Comfort
`
`Corp., IPR2014-01419, Paper No. 9 (Mar. 27, 2015) (rejecting petition for not
`
`identifying specific portions of the evidence that support the challenge and not
`
`specifying where each element of the claim is found in those references).
`
`Here, the petition fails to satisfy the requirements of both 35 U.S.C. § 314(a)
`
`and 37 C.F.R. § 42.104(b)(4). Based on the petition’s mapping of the claimed
`
`features to Aventail, one or more claimed features of the independent claims are
`
`not disclosed and hence, there is no reasonable likelihood of prevailing with
`
`respect to even one claim. Furthermore, the petition’s analysis is conclusory in
`
`several places and fails to meet the specificity required by § 42.104(b)(4). For
`
`example, the petition fails to show “[h]ow the construed claim is unpatentable”
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`because it fails to apply Petitioner’s proposed claim construction to the cited
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`Case No. IPR2015-00811
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`references.
`
`1.
`
`The Cited Portions of Aventail Do Not Disclose the Claimed
`“Determining”
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`Claim 1 of the ’705 patent recites a “determining” step—“determining
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`whether the request to look up an IP address [intercepted] in step 1 corresponds to
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`a device that accepts an encrypted channel connection with the client device.” (Ex.
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`1001 at 55:53-56.) Petitioner contends that the claimed “determining” is disclosed
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`by Aventail because Aventail discloses determining whether a domain name
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`specified in a connection request (alleged “intercepted DNS request,” see Pet. at
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`32) matches a domain name of a remote host in Aventail Connect’s table of
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`redirection rules. (Pet at. 33-35, citing Ex. 1009 at 8-9, 11-12, 40.) According to
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`Petitioner, “inclusion of the remote host in the redirection rule table . . . enables the
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`Aventail Connect client to determine if the remote host will accept an encrypted
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`connection” (Id. at 34, citing Ex. 1009 at 8-9, 11-12, 40 and Ex. 1005 at ¶ 237.)
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`Both of these propositions are incorrect. First, a domain name is never specified in
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`the connection request. Second, the mere inclusion of the remote host in the
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`redirection table does not mean that the remote host will accept any encrypted
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`connection because, as even Petitioner admits, Aventail does not teach an
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`encrypted connection to the remote host. The following brief overview of Aventail
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`makes clear the above-noted deficiencies.
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`Aventail discloses that Aventail Connect is an application designed to run on
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`a workstation and it routes network traffic from an application to a proxy server
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`(the Extranet (SOCKS) server). (Ex. 1009 at 7-9.) The Extranet server “sends the
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`traffic to the Internet or the external network.” (Id. at 7.) Certain traffic may be
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`routed through the Extranet server so that a remote host may be accessed. (Id. at 6-
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`7.)
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`The operation of Aventail Connect is described on pages 11-13, under the
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`heading “How Does Aventail Connect Work?” First, a “DNS lookup” is received
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`at Aventail Connect from a client application. (Id. at 11.) If the destination
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`hostname in the DNS lookup “matches a redirection rule” or the “DNS proxy
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`option is enabled and the domain cannot be looked up directly,” a “false DNS
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`entry” is created by Aventail Connect and returned to the client application. (Id. at
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`12.) A redirection rule defines, for a destination (e.g., a remote host), what type of
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`traffic (i.e., TCP and/or UDP) will be allowed to be routed to that destination, and
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`the type of proxy redirection. (Id. at 38-40.) In the proxy redirection field, the
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`administrator can specify one of three options (see table below)
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`(Id. at 40.)
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`Case No. IPR2015-00811
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`The above actions occur in step 1 as recited in Aventail. (Id. at 11-12.) In
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`step 2, the client application requests a connection to the remote host and this
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`connection request is checked by Aventail Connect. (Id. at 12.) The connection
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`request may contain a previously-created “false DNS entry” that indicates whether
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`the connection should be proxied. (Id.) When such a “connection is completed,”
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`the SOCKS negotiation process “begins,” resulting in a connection to the “extranet
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`(SOCKS) server.” (Id.) During the SOCKS negotiation, Aventail Connect sends a
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`list of authentication methods enabled in its configuration file and once the
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`Extranet Server selects one of the authentication methods, “Aventail Connect
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`executes the specified authentication processing.” (Id.) Aventail Connect “then
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`sends the proxy request to the extranet (SOCKS) server” (emphasis added) and the
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`proxy request includes “either the IP address provided by the application or the
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`DNS entry (hostname) . . . .” (Id.) The application then transmits and receives
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`data. (Id.)
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`In step 3, the application transmits and receives data. (Id.) “If an encryption
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`module is enabled and selected by the SOCKS server, Aventail Connect encrypts
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`the data on its way to the [Extranet] server on behalf of the application.” (Id.) But,
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`as Petitioner admits, Aventail does not disclose that traffic is encrypted to the
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`remote host. (Pet. at 39-43.)
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`Petitioner contends that the claimed “determining” is disclosed by Aventail
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`because Aventail discloses determining whether a domain name specified in a
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`connection request matches a domain name in Aventail Connect’s table of
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`redirection rules. (Pet at. 33-35, “Aventail explains that if the domain name in the
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`connection request matches a domain name in Aventail Connect’s table of
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`redirection rules . . . .”) But the connection request does not include a domain
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`name. Instead, the connection request includes an IP address, which is either the
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`fake IP address that was previously returned by Aventail Connect (in step 1), a
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`routable IP address, or a real IP address. (Ex. 1009 at 12.) Indeed, as
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`demonstrated by the flowchart generated by Petitioner’s expert regarding
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`Aventail’s operation (recreated below with emphasis), Petitioner’s expert agrees
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`that the connection request only has an IP address and not a domain name. (Ex.
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`1005 at ¶ 218.)
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`Even assuming Petitioner meant to rely on the “proxy request” rather than
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`the “connection request,” since the “proxy request” may include a hostname,
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`Petitioner has not shown the claimed “determination.” This is because the proxy
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`request, which is sent “after” the connection is completed, with a host name
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`included therein is never matched against a redirection rules table. (Ex. 1009 at
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`11-12.) Indeed, the matching of the host name against the redirection rules table
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`occurs much earlier and the proxy request with the host name is sent “after” the
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`connection has been established. (Id.)
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`Petitioner is also incorrect in stating that “inclusion of the remote host in the
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`redirection rule table . . . enables the Aventail Connect client to determine if the
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`remote host will accept an encrypted connection.” (Pet. at 34.) As stated earlier, a
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`redirection rule for a destination (e.g., a remote host) only specifies the particular
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`protocol for the traffic (i.e., TCP and/or UDP) that will be allowed to be routed to
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`that destination, and also “how to redirect traffic” to the destination. (Ex. 1009 at
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`38-40.) With regards to proxy redirection, Aventail provides the following three
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`options: all traffic to a particular destination can be blocked (denied); all traffic
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`could be routed to a specified Extranet Server; or traffic can be routed directly to
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`the remote host. (Id. at 40.) The redirection rule does not, however, imply that the
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`remote host will accept an encrypted connection because, as Petitioner admits,
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`Aventail does not teach an encrypted connection to the remote host. (Pet. at 39-43,
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`“Aventail, thus, does not explicitly show that the entire path between the client
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`device and the target device (including the portion of path between the Extranet
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`server and remote host) remains encrypted” (emphasis added).)
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`Petitioner attempts to analogize the proxying of traffic to a host with the host
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`accepting an encrypted connection. (Pet. at 34.) But the mere fact that a remote
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`host accepts a proxied connection does not suggest that the remote host is one that
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`accepts an encrypted connection. Not surprisingly, the Petition is silent regarding
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`the relationship between a proxied connection and an encrypted connection. (Pet.
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`at 34.) In fact, Petitioner acknowledges that Aventa