UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ARISTA NETWORKS, INC.
`Petitioner
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`v.
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`CISCO SYSTEMS, INC.
`Patent Owner
`____________________
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`Case IPR2015-00974
`Patent 7,224,668
`____________________
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`PATENT OWNER PRELIMINARY RESPONSE
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`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`I. 
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`II. 
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`
`Table of Contents
`
`Introduction. ..................................................................................................... 1 
`
`The ’668 Patent presents a novel internetworking device that provides
`improved security and Quality of Service. ...................................................... 2 
`
`A.  Denial of Service (DoS) attacks have been a significant problem for
`networks. ............................................................................................... 2 
`
`B. 
`
`C. 
`
`Existing approaches to address DoS attacks had serious limitations. ... 3 
`
`The novel solution provided by the ’668 patent. .................................. 4 
`
`III.  Claim Construction. ......................................................................................... 8 
`
`A. 
`
`B. 
`
`“Port Services” apply to each packet entering into or exiting from a
`port, for operating on packets entering and exiting the physical
`network interface ports. ......................................................................... 9 
`
`The Board should reject Petitioner’s construction for the term
`“specific, predetermined ports” because the term is unambiguous and
`requires no construction. ..................................................................... 14 
`
`C. 
`
`The Board should reject Petitioner’s means-plus-function analysis. .. 15 
`
`1. 
`
`2. 
`
`3. 
`
`4. 
`
`“means for configuring a plurality of physical network interface
`ports” (claim 37). ...................................................................... 16 
`
`“means for processing packets originating at a plurality of
`physical ports” (claim 38). ........................................................ 17 
`
`“means for passing packets through the control plane port,
`rather than directly from the physical ports to individual control
`plane processes” (claim 38). ..................................................... 18 
`
`“means for configuring the control plane port services as an
`entity separate from physical port services” (claim 54). .......... 18 
`
`IV.  Ground 1A: Petitioner fails to show that claims 1-6, 8, 9, 15-22, 24-27, 33-
`40, 42, 45-47, 51-58, 60-63, and 69-72 are anticipated by Amara. .............. 19 
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`- i -
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`A.  Amara’s packet-forwarding device. .................................................... 19 
`
`
`
`B. 
`
`Petitioner fails to show that Amara discloses all of the elements of the
`challenged independent claims as arranged in the claim. ................... 22 
`
`1. 
`
`2. 
`
`3. 
`
`4. 
`
`5. 
`
`Petitioner fails to show that Amara discloses “a plurality of
`physical network interface ports . . . the ports being
`configurable by control plane processes” (elements
`1.1/19.1/37.1/55.1). ................................................................... 22 
`
`Petitioner fails to show that Amara discloses “[executing] port
`services, [] on packets entering and exiting the physical network
`interface ports” (elements 1.2/19.2/37.2/55.2). ........................ 25 
`
`Petitioner fails to show that Amara discloses “the port services .
`. . as defined by control plane configurations” (elements
`1.2/19.2/37.2/55.2). ................................................................... 28 
`
`Petitioner fails to show that Amara discloses “control plane
`processes for providing high-level control and configuration of
`the ports and the port services” (elements 1.3/19.3/37.3/55.3).
` ................................................................................................... 32 
`
`Petitioner fails to show that Amara discloses “operat[e][ing] on
`packets received from specific, predetermined physical ports
`and destined to the collection of control plane processes”
`(elements 1.5/19.5/37.5/55.5). .................................................. 32 
`
`C. 
`
`D. 
`
`E. 
`
`Petitioner fails to show that Amara discloses identifying packets
`destined to the control plane “using information specified in
`configuration of the internetworking device” as recited in dependent
`claims 3, 21, 39 and 57. ....................................................................... 34 
`
`Petitioner fails to show that Amara discloses identifying and
`forwarding Layer 2 control packets to the control plane port as recited
`in dependent claims 5, 26, 46, and 62. ................................................ 37 
`
`Petitioner fails to show that Amara expressly or inherently discloses
`identifying and forwarding Layer 3 control packets to the control
`plane port as required by dependent claims 6, 27, 47, and 63. ........... 38 
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`F. 
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`Petitioner fails to show that Amara discloses controlling and/or
`configuring “control plane port services as [a unique] entity separate
`from physical [port] services” as recited in claims 18, 36, 54, and 72.
` ............................................................................................................. 41 
`
`V.  Ground 2A: Petitioner fails to show that claims 7, 23, 41, and 59 are obvious
`in view of Amara and Moberg under 35 U.S.C § 103. .................................. 42 
`
`A. 
`
`B. 
`
`The invention of Moberg. .................................................................... 43 
`
`The combination of Amara and Moberg does not disclose distributing
`control plane processes across multiple processors. ........................... 44 
`
`VI.  Ground 3A: Petitioner fails to show that claims 10, 12, 13, 28, 30, 31, 43,
`48, 49, 64, 66, and 67 are obvious in view of Amara and Subramanian under
`35 U.S.C § 103. .............................................................................................. 46 
`
`VII.  Ground 4A: Petitioner fails to show that claims 10, 12, 13, 28, 30, 31, 43,
`48, 49, 64, 66, and 67 are obvious in view of Amara and Hendel under 35
`U.S.C § 103. ................................................................................................... 46 
`
`A. 
`
`B. 
`
`The Board should reject ground 4A because this ground is redundant
`to Ground 3A. ...................................................................................... 47 
`
`Petitioner fails to show that the combination of Amara and Hendel
`discloses applying distributed control plane port services only to
`packets received from specific, pre-determined physical ports. ......... 48 
`
`VIII.  Petitioner fails to establish a prima facie case of obviousness for Grounds
`1B, 2B, 3B, 4B. .............................................................................................. 49 
`
`IX.  Conclusion. .................................................................................................... 53 
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`
`Table of Authorities
`
`
`Cases
`
`Biotec Biologische Naturverpackungen GmbH & Co. KG v. Biocorp, Inc.,
`249 F.3d 1341 (Fed. Cir. 2001) ................................................................................ 14
`
`CallCopy v. Verint Am.,
`IPR2013-00486 (Paper 11, February 5, 2013) ......................................................... 52
`
`Cat Tech LLC v. Tube-Master Inc.,
`528 F.3d 871 (Fed. Cir. 2008) ............................................................................ 15, 33
`
`Elekta Instrument S.A. v. O.U.R. Scientific Int’l Inc.,
`214 F.3d 1302 (Fed. Cir. 2000) .......................................................................... 15, 33
`
`Google v. EveryMD,
`IPR2014-00347 (Paper 9, May 22, 2014) ................................................................ 52
`
`Illumina, Inc. v. The Trustees of Columbia University in the City of New York,
`IPR2012-00006 (Paper 43, May 10, 2013) ........................................................ 47, 48
`
`In re Chaganti,
`2014 WL 274514 (Fed. Cir. 2014)........................................................................... 50
`
`In re Kahn,
`441 F.3d 977 (Fed. Cir. 2006) .................................................................................. 50
`
`In re Morris,
`127 F.3d 1048 (Fed. Cir. 1997) ................................................................................ 10
`
`In re Robertson,
`169 F.3d 743 (Fed. Cir. 1999) ............................................................................ 23, 40
`
`Liberty Mutual Ins. Co. v. Progressive Casualty Ins. Co.,
`CBM2012-00003 (Paper 7, October 10, 2012) .................................................. 47, 52
`
`SanDisk Corp. v. Memorex Products, Inc.,
`415 F. 3d 1278 (Fed. Cir. 2005) ............................................................................... 13
`
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`
`Table of Authorities
`(Continued)
`
`
`Schrader-Bridgeport Int’l, Inc. v. Continental Automotive Sys. US, Inc.,
`IPR2013-00014 (Paper No. 15, April 10, 2013) ...................................................... 48
`
`Technology Patents LLC v. T-MOBILE (UK) Ltd.,
`700 F.3d 482 (Fed. Cir. 2012) .................................................................................. 13
`
`Ultratec, Inc. v. CaptionCall, LLC,
`IPR2013-00288 (Paper 23, January 10, 2014) ......................................................... 47
`
`Vibrant Media, Inc. v. Gen. Elec. Co.,
`IPR 2013-00172 (Paper 9, July 28, 2014) ............................................................... 16
`
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F. 3d 1576 (Fed Cir. 1996) .................................................................................. 13
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`
`Statutes
`
`35 U.S.C. § 102 ........................................................................................................ 48
`35 U.S.C. § 103 ............................................................................................ 42, 46, 50
`35 U.S.C. § 312 ........................................................................................................ 49
`35 U.S.C. § 316 ........................................................................................................ 48
`
`Regulations
`
`37 C.F.R. § 41.104 ................................................................................................... 51
`37 C.F.R. § 42.22 ..................................................................................................... 52
`37 C.F.R. § 42.100 ................................................................................................... 10
`37 C.F.R. § 42.104 ................................................................................................... 16
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`
`Exhibit List
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`Exhibit No. Description
`2001
`D-Link DES-1024D Data Sheet
`PCT International Publication No. WO 01/89606 to Wilson, et al.
`2002
`2003
`Microsoft Computer Dictionary, Fifth Edition, p. 155 (2002)
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`- vi -
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`I.
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`Introduction.
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`IPR2015-00974
`U.S. Patent No. 7,224,668
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`The Board should deny the instant Petition for the obvious reasons that the
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`cited references do not contain each and every element of the challenged claims
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`despite Petitioner’s efforts to stretch, mold, and often create from whole-cloth the
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`teachings of the references. Patent Owner answers each of Petitioner’s arguments
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`with facts and with common sense. First, Patent Owner presents the context for the
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`invention: that within the past decade, data networks, like the Internet, critical to
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`worldwide communications, had become vulnerable to attacks, particularly Denial
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`of Service (DoS) attacks, and that existing techniques to deal with DoS attacks
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`enjoyed limited effectiveness. The ’668 patent addresses these serious issues by
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`implementing a novel interworking device that could manage DoS attacks and
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`generally improve quality of service. Patent Owner next shows that Petitioner’s
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`reliance on Amara as an anticipatory reference is misplaced. Amara presents an
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`architecture that fundamentally differs from that disclosed in the ’668 patent. And
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`Amara does not disclose all of the claim elements, a critical failing for establishing
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`anticipation, which Petitioner cannot solve with its inherency arguments, and
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`which the Board should view as Petitioner’s concession that its anticipation
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`arguments are incomplete. In Sections IV, V and VI, Patent Owner shows that
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`Petitioner’s attempts to combine Amara with a succession of references—Moberg
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`in Section IV, Subramanian in Section V, and Hendel in Section VI—do not meet
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`the well-understood test for obviousness, and in the case of the Amara-Hendel
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`
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`combination, also fails for violating the Board’s rules against redundancy. Finally,
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`Patent Owner shows that Petitioner’s final obviousness arguments, lumped in the
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`final two pages of the Petition, fail to meet this Board’s most basic requirement to
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`lay out facts and arguments. In the end, Petitioner has not met its burden and the
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`Board should deny the Petition.
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`II. The ’668 Patent presents a novel internetworking device that provides
`improved security and Quality of Service.
`A. Denial of Service (DoS) attacks have been a significant problem for
`networks.
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`By 2002, private and public data networks, including the Internet, were
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`critical to the worldwide communications infrastructure. As such, these networks
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`and their backbone components—routers, switches, firewalls, and web servers—
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`became a popular target for attackers. One common network attack, DoS, sought to
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`overwhelm a network to prevent the network from servicing normal network
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`traffic. A coordinated, widespread DoS attack, over many internetworking devices,
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`can have a significant impact on the infrastructure, and “[i]n the extreme case, . . .
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`result in multiple compromised Internet hosts that can disrupt the operation of the
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`Internet itself.” (’668 patent, 1:36-40.) As an example, a powerful attack in 2002
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`resulted in “seven of the thirteen servers” that managed global internet traffic
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`failing, which disrupted Internet traffic around the globe. (’668 patent, 1:25-29.)
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`DoS attacks exploit the normal traffic processing operations of network
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`
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`routing components. For instance, attackers may generate malicious traffic and
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`direct it to what is known as the “control plane.” (’668 patent, 1:59-63.) The
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`control plane of a device “is responsible for higher layer functions of the device,
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`such as establishing routing tables and entering quality service policies.” (’668
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`patent, 1:57-59.) Attackers direct DoS attacks to the control plane because, if the
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`control plane fails, the entire device may malfunction or fail. (’668 patent, 1:59-
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`2:3.)
`
`B. Existing approaches to address DoS attacks had serious limitations.
`Techniques developed prior to the ’668 patent to detect, prevent, and
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`mitigate DoS attacks had limitations that reduced their effectiveness. For example,
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`one approach used “Reverse Pass Forwarding” or “Selective Packet Discard,”
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`which “[s]electively . . . apply filters to packets arriving from specific known
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`mischievous Internet Protocol (IP) addresses,” or can detect packets having forged
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`addresses. (’668 patent, 2:24-31.) This approach suffered problems including that it
`
`required a network administrator to know, in advance, a list of mischievous IP
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`addresses, and also that it required application of the filters to every packet
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`received by the ports of a device.
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`Another approach focused on identification based on packet type, using an
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`“access list configured on an input interface to explicitly deny or limit specific
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`problematic packet types.” (’668 patent, 2:32-34.) This technique negatively
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`
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`impacted device performance because the device had to apply additional classes
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`and policies for every packet received over every interface, regardless of whether
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`the packet is destined for the control plane or data plane. (’668 patent, 2:59-65.)
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`Moreover, control-plane destined packet types were not always easily identified,
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`and policies could not be written to be efficiently control such packets. (’668
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`patent, 3:10-14.)
`
`C. The novel solution provided by the ’668 patent.
`Faced with the problem of managing DoS attacks and generally improving
`
`quality of service, the inventors of the ’668 patent developed a novel interworking
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`device. The ’668 patent explains that its networking device “typically separates its
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`functionality into control plane functions and data plane functions.” (’668 patent,
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`1:52-54.) “The data plane is principally responsible for accepting transit packets at
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`input ports [of the device] and routing or switching them to output ports [of the
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`device].” (’668 patent, 1:54-56.) Data planes typically include a plurality of
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`physical ports that define physical connection points to the network, and also “port
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`services” that can be applied to packets entering into or exiting from the ports.
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`(’668 patent, 3:38-41.) The control plane is generally “responsible for higher layer
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`functions of the device, such as establishing routing tables and entering quality
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`service policies.” (’668 patent, 1:57-59.) The ’668 patent protects the control plane
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`from threats such as DoS attacks by providing technology that includes a “single
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`
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`entity” for accessing the control plane––referred to in the patent as a “control plane
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`port”––together with a set of “control plane port services” that may be applied to
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`packets destined for the control plane in a way that is independent of the physical
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`ports and port services from which the packets are received. (’668 patent, 3:48-54.)
`
`The ’668 patent describes two exemplary techniques for providing control
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`plane port services––“aggregate” control plane port services and “distributed”
`
`control plane port services. FIG. 1 (reproduced below) illustrates an exemplary
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`interworking device that uses “aggregate” control plane port services. In this
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`embodiment, packets are delivered from the physical ports of the device to the
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`central switch engine 130. The central switch engine then applies the normal input
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`port services rules and Quality of Service (QoS) processing to the packet. (’668
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`patent, 6:67-7:2.) The normal input port services are applied to all packets received
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`by the device. For example, an administrator may have general rules, such as
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`access control lists, that should be applied to each packet received by the device,
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`regardless of whether the packets are destined for the control plane or data plane.
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`After the normal port services are applied, for example, the central switch
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`engine 130 determines whether the packet is destined for the control plane or the
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`data plane (in which case it is determined to be a “transit packet”). (’668 patent,
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`7:3-11.) If the central switch engine 130 determines that the packet is destined for
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`the control plane, it is routed through the “control plane port,” and thereafter
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`
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`“aggregate control plane port services” are applied to the packet. (’668 patent,
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`7:11-13.) In the “aggregate” control plane services embodiment, control plane
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`services can be applied to control plane packets “received from any port on the
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`device.” (’668 patent, 6:45-50.)
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`FIG. 2 of the ’668 patent illustrates an exemplary internetworking device
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`that uses “distributed” control plane port services. This embodiment may use both
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`a central switch engine 130 and a distributed switch engine 131, and when a packet
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`is received, port services are first applied to packets received by the physical ports
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`by the “distributed switch engine.” (’668 patent, 8:6-8.) Subsequently, if the
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`“distributed switch engine” determines that the packet is a control plane packet, the
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`“distributed switch engine” applies “distributed” control plane port services. (’668
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`patent, 8:13-16.) In this embodiment, the “distributed control plane port services”
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`are applied only to control plane packets received at ports with which the
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`distributed control plane port services are associated. (’668 patent, 6:49-54.) Any
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`packet not dropped by the “distributed control plane port services” is delivered to
`
`the central switch engine, where “aggregate control plane port services,” if they are
`
`configured, can also be applied by the central switch engine to control plane
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`packets received from any port on the device. (’668 patent, 8:16-19.) Eventually, if
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`the packet is not dropped by the “aggregate control plane services” (assuming they
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`are configured), then it is delivered to the control plane. (’668 patent, 8:20-24.)
`
`In exemplary embodiments using “aggregate” or “distributed” control port
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`services, the internetworking device of the ’668 patent, which separately handles
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`control plane traffic, addresses DoS attacks and improves quality of service. This
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`
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`novel approach of the ’668 patent avoids the limitations of the prior approaches
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`described in Section I.B above, in which, for example, control-plane-specific rules
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`apply to all traffic received on any port of the device regardless of whether the
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`traffic is destined for the control plane. And, because the ’668 patent explains that
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`input port services apply to all traffic, the ’668 patent provides the flexibility
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`needed to allow normal input port services to be applied to all traffic received on
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`any port of the device, while allowing control-plane-specific policies to be
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`independently applied solely to traffic intended for the control plane. Because
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`normal input port services are first applied to all packets received on any port of
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`the device, and then control-plane-specific policies are applied only to packets
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`destined for the control plane, “transit packet throughput performance is minimally
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`affected because control plane port services are applied if and only if a packet is
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`first determined to have a control plane destination.” (’668 patent, 9:6-9.)
`
`III. Claim Construction.
`The parties ask the Board to construe only a limited number of terms in this
`
`proceeding. The Patent Owner proposes a construction for one term in the ’668
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`patent––“port services, for operating on packets entering and exiting the physical
`
`network interface ports.” Petitioner did not propose a construction for this term.
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`The Board should adopt Patent Owner’s construction because Patent Owner’s
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`
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`construction properly applies the broadest reasonable interpretation standard.
`
`Petitioner also proposes a construction for only one term in the ’668 patent–
`
`–“specific, predetermined physical ports.” The Board should reject Petitioner’s
`
`construction for this term because the term is unambiguous and requires no
`
`construction.
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`In addition, Petitioner provided a statement of the function and structure for
`
`the means-plus-function claim elements of claims 37, 38, 43, 53, and 54. The
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`Board should reject Petitioner’s means-plus-function analysis because Petitioner
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`improperly and incorrectly raises indefiniteness for several means-plus-function
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`elements.
`
`A. “Port Services” apply to each packet entering into or exiting from a
`port, for operating on packets entering and exiting the physical network
`interface ports.
`
`Term
`“port services, for
`operating on packets
`entering and exiting the
`physical network
`interface ports”
`
`Cisco
`input and/or output services
`applied to each packet entering
`into or exiting from a port, for
`operating on packets entering
`and exiting the physical
`network interface ports
`
`Arista
`no
`construction
`provided
`
`
`
`Each of the challenged independent claims recites the element “[executing]
`
`port services [for operating] on packets entering and exiting the physical network
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`interface ports.” The proper construction for this term, under the broadest
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`
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`reasonable interpretation standard is “input and/or output services applied to each
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`packet entering into or exiting from a port, for operating on packets entering and
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`exiting the physical network interface ports.” This is the plain meaning of the
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`claim language and is confirmed by the intrinsic evidence.
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`In an inter partes review, “[a] claim . . . shall be given its broadest
`
`reasonable construction in light of the specification of the patent in which it
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`appears.” 37 C.F.R. § 42.100(b). Stated differently, claim terms should be
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`construed using “the broadest reasonable meaning of the words in their ordinary
`
`usage as they would be understood by one of ordinary skill in the art, taking into
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`account whatever enlightenment by way of definitions or otherwise that may be
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`afforded by the written description contained in the applicant’s specification.” In re
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`Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
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`Patent Owner’s construction should be adopted because it is the proper
`
`construction for the term when viewed in light of the plain meaning of the
`
`language and specification of the ’668 patent. The ’668 patent consistently and
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`repeatedly explains that the “port services” are applied to each packet that is
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`received or sent by the internetworking device’s physical interface ports, regardless
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`of whether the packet is a control plane packet or a data plane packet. Both the
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`IPR2015-00974
`U.S. Patent No. 7,224,668
`“aggregate” control plane services and the “distributed” control plane services
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`
`
`embodiments apply “port services” to all packets.
`
`Annotated Figure 4 below highlights this for the “aggregate control plane
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`port services” embodiment.
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`
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`At step 402, normal input port services are applied to packets once they are
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`received by the central switch engine, regardless of the type of packet. (’668
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`patent, 6:65-7:2.) As shown, the ’668 patent describes applying “input port
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`services” before a packet is determined to be destined to the control plane.
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`Specifically, it is not until step 403, that “the central switch engine 130 performs
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`its normal Layer 2 and Layer 3 switching/routing decision,” after which if “the
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`U.S. Patent No. 7,224,668
`packet is destined for a known control plane 150 address, or to an address not on a
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`forwarding table 160. . . . [t]he packet is then routed through the aggregate control
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`plane port 140.” In other words, the “input port services” are applied to all packets,
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`including both control plane and data plane packets, as a packet is not determined
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`to be a control plane packet until after the “input port services” are applied.
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`Similarly, the “distributed control plane services” embodiment, as
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`highlighted in annotated FIG. 6 below, also depicts normal “port services” being
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`applied to each packet regardless of the type of packet.
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`Any construction for this term that interprets “port services” to only be
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`applied to some, but not all, packets sent or received by the interface would
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`exclude both of the preferred embodiments disclosed in the ’668 patent and
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`therefore is improper. SanDisk Corp. v. Memorex Products, Inc., 415 F. 3d 1278,
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`1285 (Fed. Cir. 2005) (“A claim construction that excludes a preferred
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`embodiment . . . ‘is rarely, if ever, correct.’” (quoting Vitronics Corp. v.
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`Conceptronic, Inc., 90 F. 3d 1576, 1582 (Fed Cir. 1996)).)
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`Further, the ’668 patent explains that one of the advantages of the invention
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`is that input port services are applied to every packet, regardless of whether the
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`packet is a data plane packet or control plane packet: “With the control plane being
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`treated as a traditional port, rules can be established using the method according to
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`the invention that is enforced after port input services and the switching decision
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`has been made.” (’668 patent, 9:1-4, emphasis added.) See also, Technology
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`Patents LLC v. T-MOBILE (UK) Ltd., 700 F.3d 482, 493 (Fed. Cir. 2012) (finding
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`that an “ordered list” needed to be created by the receiving user because it was
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`“[o]ne of the primary purposes of the invention.”)
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`Accordingly, the Board should adopt Patent Owner’s construction for this
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`term: “input and/or output services applied to any packet received or sent by the
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`network interface ports, regardless of the type of packet.”
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`B. The Board should reject Petitioner’s construction for the term “specific,
`predetermined ports” because the term is unambiguous and requires no
`construction.
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`
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`Term
`“specific,
`predetermined ports”
`
`Arista
`Cisco
`plain and ordinary meaning construed broadly enough to
`encompass all of the ports of
`the internetworking device
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`The term “specific, predetermined ports” is unambiguous and requires no
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`construction. Each of the challenged independent claims provides that the control
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`plane port services operate “on packets received from specific, predetermined
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`physical ports.” Where, as here, the claim language is unambiguous, construction
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`is unnecessary and a determination that the plain ordinary meaning applies is
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`appropriate. See, e.g., Biotec Biologische Naturverpackungen GmbH & Co. KG v.
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`Biocorp, Inc., 249 F.3d 1341, 1349 (Fed. Cir. 2001) (“the meaning of ‘melting’
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`does not appear to have required ‘construction,’ or to depart from its ordinary
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`meaning”).
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`Petitioner offers no explicit construction of the term. Rather, Petitioner states
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`“the term ‘specific, predetermined physical ports’ should be construed broadly
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`enough to encompass all of the ports of the internetworking device.” (Pet., p. 10.)
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`While Patent Owner does not disagree that the term can “encompass all of the
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`ports,” the plain meaning of the term also requires that the ports be “specific” and
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`“predetermined.” That is, the ports are determined before the services are applied
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`to the packets. (See, e.g., ’668 patent, 6:44-57.) Petitioner’s broad interpretation,
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`without more, reads out the terms “specific” and “predetermined,” and therefore is
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`improper. See Cat Tech LLC v. Tube-Master Inc., 528 F.3d 871, 885 (Fed. Cir.
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`2008) (refusing to adopt a claim construction which would render a claim
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`limitation meaningless); Elekta Instrument S.A. v. O.U.R. Scientific Int’l Inc., 214
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`F.3d 1302, 1305-07 (Fed. Cir. 2000) (refusing to adopt a claim construction which
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`would render claim language superfluous).
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`C. The Board should reject Petitioner’s means-plus-function analysis.
`Claims 37, 38, 43, 53, and 54 each recite elements in means-plus-function
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`format. Petitioner asserts that four of these means-plus-function elements recited in
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`claims 37, 38, and 54 are indefinite for not having sufficient structure disclosed in
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`the ’668 patent. (Pet., pp. 10-14.) Petitioner’s argument is a transparent attempt to
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`avoid the statutory restriction against directly raising indefiniteness as a ground of
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`unpatentability in an IPR proceeding. The Board should reject Petitioner’s
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`argument for this reason alone. The Board should also reject Petitioner’s argument
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`for another reason: the ’668 patent does in fact disclose sufficient structure for each
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`of these elements, as set forth in detail below.
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`Recognizing its burden to set forth a structure for each means-plus-function
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`element, Petitioner identifies the “potentially” “closest corresponding” structure for
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`these four elements. Petitioner’s superficial identification fails to comply with Rule
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`U.S. Patent No. 7,224,668
`42.104, which requires that Petitioner identify “the specific portions of the
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`
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`specification that describe the structure . . . corresponding to each function,” not
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`the “potentially closest.” Moreover, Petitioner’