UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`
`
`SOPHOS INC.,
`Petitioner
`
`v.
`
`FINJAN, INC.,
`Patent Owner
`
`U.S. Patent No. 8,677,494
`
`Filing Date: November 7, 2011
`Issue Date: March 18, 2014
`Title: Malicious Mobile Code Runtime Monitoring System And Methods
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`
`
`Inter Partes Review No.: IPR2015-01022
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`
`
`PETITIONER’S REQUEST FOR REHEARING OF
`DECISION DENYING INSTITUTION OF INTER PARTES REVIEW OF
`U.S. PATENT NO. 8,677,494
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`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`
`
`SOPHOS INC.,
`Petitioner
`
`v.
`
`FINJAN, INC.,
`Patent Owner
`
`U.S. Patent No. 8,677,494
`
`Filing Date: November 7, 2011
`Issue Date: March 18, 2014
`Title: Malicious Mobile Code Runtime Monitoring System And Methods
`
`
`
`Inter Partes Review No.: IPR2015-01022
`
`
`
`PETITIONER’S REQUEST FOR REHEARING OF
`DECISION DENYING INSTITUTION OF INTER PARTES REVIEW OF
`U.S. PATENT NO. 8,677,494
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`TABLE OF CONTENTS
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`IPR2015-01022
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`Page
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`I.
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`II.
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`INTRODUCTION ......................................................................................... 1
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`FACTUAL BACKGROUND ……………………………………………. 2
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`III. LEGAL STANDARD ................................................................................... 3
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`IV. ARGUMENT ................................................................................................ 3
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`A.
`the
`for
`“Deriving Security Profile Data
`TBAV Teaches
`Downloadable, Including a List of Suspicious Operations that may be
`Attempted by the Downloadable” ………………………............................. 4
`
`1.
`TBAV Teaches Deriving “Suspicious Operations that may be
`Attempted by the Downloadable” ……………………………......... 5
`
`2.
`TBAV Teaches “a List of Suspicious Operations that may be
`Attempted by the Downloadable” …………………………………... 7
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`B.
`TBAV Teaches “Storing the Downloadable Security Profile Data in a
`Database” ...................................................................................................... 8
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`1.
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`The Board Erred In Its Construction of “Database.” ................ 8
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`2.
`Storing Heuristic Flag Data in a Log File is “Storing the
`Downloadable Security Profile Data in a Database” ........................ 13
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`V. CONCLUSION............................................................................................ 15
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`IPR2015-01022
`Request for Rehearing
`Pursuant to 37 CFR §42.71, Sophos Inc. (“Petitioner”) respectfully moves
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`for rehearing of the Decision Denying Institution of Inter Partes Review issued on
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`September 24, 2015 (Paper 7) (the “Decision”), as to claims 1, 10, 14, and 18
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`(“challenged claims”) of U.S. Patent No. 8,677,494 (the “’494 patent”) (Ex. 1001).
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`I.
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`Introduction
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`Petitioner seeks reconsideration of the denial of two of the four grounds of
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`unpatentability raised in the petition the grounds based on TBAV, Grounds 1 and
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`2. The Board denied institution on these two grounds because it found that TBAV
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`did not disclose two claim elements. First, the Board found that TBAV did not
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`disclose deriving a “list of suspicious computer operations” because the Board
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`disagreed with Petitioner’s construction, finding that “‘instructions’ are not
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`themselves ‘operations.’” However, the Board acknowledged that “operations” can
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`be the result of executing “instructions,” and the Petition includes multiple
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`statements that TBAV disclosed “instructions that perform … operations.” Thus,
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`the Board abused its discretion by finding that the Petition failed to establish that
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`TBAV discloses deriving a “list of suspicious computer operations” through its
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`identification in TBAV of suspicious instructions that perform suspicious
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`operations.
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`The Board also denied institution on the Grounds 1 and 2 because it adopted
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`a construction of “database” and found that TBAV did not disclose storing
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`downloadable security profile data in a “database” under that construction. This
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`IPR2015-01022
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`construction is legal error because it is not the broadest reasonable construction.
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`The Board acknowledged that there was no evidence of any disavowal of claim
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`scope in the intrinsic evidence, but then proceeded to select the narrowest of four
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`definitions of “database” despite the fact that the other broader definitions were
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`consistent with the specification. Under the correct broadest reasonable
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`construction, TBAV discloses the storage of security profile data in a “database.”
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`Accordingly, both reasons given by the Board for failing to institute trial based on
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`the TBAV are faulty and Petitioner’s request for rehearing should be granted.
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`II.
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`Factual Background
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`Petitioner submitted its Petition on April 8, 2015. The Petition presented
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`four grounds of unpatentability of the challenged claims based on four prior art
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`references: ThunderBYTE Anti-Virus Utilities User Manual, ThunderBYTE B.V.
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`(1995) (“TBAV”) (Ex. 1006), U.S. Patent No. 5,440,723 (“Arnold”) (Ex. 1008),
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`U.S. Patent No. 5,623,600 (“Ji”) (Ex. 1009), and U.S. Patent No. 5,951,618
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`(“Chen”) (Ex.101). Petition at 4. Petitioner supported its petition with the
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`Declaration of Paul Clark (“Clark Declaration”) (Ex. 1002).
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`Patent Owner filed its Preliminary Response to the Petition (Paper 6) on July
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`14, 2015. The Board, citing to several of Patent Owner’s arguments, denied
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`institution of inter partes review on all grounds in the Petition.
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`III. Legal Standard
`In considering a rehearing request under 37 C.F.R. § 42.71(d), the Board
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`IPR2015-01022
`Request for Rehearing
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`reviews a prior decision “for an abuse of discretion.” 37 C.F.R. § 42.71(c). “The
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`burden of showing a decision should be modified lies with the party challenging
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`the decision. The 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).
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`“An abuse of discretion occurs when a ‘decision was based on an erroneous
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`conclusion of law or clearly erroneous factual findings, or… a clear error of
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`judgment.’” Illumina, Inc. v. Trustees of Columbia University, IPR2013-00011,
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`Paper 44 at 2 (Patent Tr. & App. Bd. May 10, 2013) (citing 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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`When the Board misapprehends or overlooks issues establishing a reasonable
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`likelihood of success for the Petitioner, an inter partes review should be granted.
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`Handi Quilter, Inc. v. Bernina International, AG, IPR 2014-00720, paper 17 at 23-
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`24. (Patent Tr. & App. Bd. December 30, 2014).
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`IV. Argument
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`The Board, relying on Patent Owner’s arguments in its Preliminary
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`Response (at 16-37), concluded that the challenged claims are not obvious over
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`TBAV in view of Ji and/or Chen. The Patent Owner’s arguments were supported
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`by a discussion of the ’494 patent that addressed the ’494 specification only,
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`without addressing U.S. Provisional 60/030,639 (the ’639 application). Preliminary
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`Response at 4-6. However, as demonstrated by Petitioner, the ’639 application
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`provides the entire and exclusive support for the challenged claims. Petition at 7-
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`11. Based on this plain attempt to misdirect the Board, Patent Owner presented
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`constructions at odds with the disclosure on which the challenged claims are based.
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`After summarizing the ’494 patent only in terms of the ’494 specification
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`(Decision at 2-3), the Board erred by adopting constructions of claim terms that
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`were not the broadest reasonable constructions and that conflict with the intrinsic
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`evidence of the ’494 patent and ’639 application. Decision at 6-10. Thus, the Board
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`misapprehended TBAV’s teachings and failed to acknowledge that TBAV teaches
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`the elements of the challenged claims.
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`A. TBAV Teaches “Deriving Security Profile Data for the
`Downloadable, Including a List of Suspicious Operations that
`may be Attempted by the Downloadable”
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`The Board states that TBAV does not disclose “deriving… a list of
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`suspicious computer operations that may be attempted by the Downloadable.”
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`Decision at 13. This finding is based on the notion that Petitioner has not explained
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`how “instructions” are “operations” or how TBAV discloses “a list of heuristic
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`flags in the file.” Id. at 13-14. As explained below, the Board misapprehended or
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`overlooked Petitioner’s arguments that establish TBAV’s heuristic flags indicate
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`IPR2015-01022
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`suspicious operations and that TBAV lists heuristic flags in a log file.
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`1.
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`TBAV Teaches Deriving “Suspicious Operations that may
`be Attempted by the Downloadable”
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`The Board acknowledges that “TBAV’s TbScan ‘performs heuristic analysis
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`of files,’ which heuristic analysis ‘includes detecting suspicious instruction
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`sequences within a file and applying heuristic flags to the file’” and “heuristic flags
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`reasonably could be termed “security profile data for [a] Downloadable.” Decision
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`at 13. However, the Board also states that “Petitioner does not explain, nor can we
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`discern, how TBAV’s heuristic analysis discloses ‘deriving… a list of suspicious
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`computer operations that may be attempted by the Downloadable.’” Id. To support
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`this conclusion, the Board noted its interpretation of “suspicious computer
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`operations” does not include that “instructions” are operations. Id. at 13-14.
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`The Board’s reliance on the distinction between “instructions” and
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`“operations” elevates form over substance and is not a valid basis for denying
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`institution of Grounds 1 and 2. The Board states “[w]hereas a suspicious computer
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`operation might result from the execution of instructions deemed to be potentially
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`hostile, instructions are not operations.” Id. at 8. This is a distinction without a
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`difference, as no operation can take place without execution of instructions, and
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`the instructions dictate the operations that take place when the instructions are
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`executed. “Software [is] the ‘set of instructions, known as code, that directs a
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`computer to perform specified functions or operations’” Microsoft Corp. v. AT&T
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`IPR2015-01022
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`Corp., 550 U.S. 437,447 (2007) (quoting Fantasy Sports Props., Inc. v.
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`Sportsline.com, Inc., 287 F.3d 1108, 1118 (Fed. Cir. 2002)). Instructions and
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`operations are inextricably intertwined.
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`However, even considering the Board’s distinction between instructions and
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`operations, the Board overlooked evidence in the Petition that TBAV’s heuristic
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`flags describe suspicious computer operations. Petition at 18-19. The Petition and
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`the portions of TBAV cited therein give examples of heuristic flags indicating
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`suspicious computer operations. One example is the flag “# - decryptor code
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`found.” Ex. 1006 at 180. As Petitioner stated, this flag “indicat[es] that the file
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`contains instructions that perform self-decryption operations.” Petition at 19
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`(emphasis added). Another example given in the Petition is the flag “A –
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`Suspicious Memory Allocation,” which the Petition explains “perform[s] non-
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`standard memory search and/or allocation operations.” Ex. 1006 at 181, Petition at
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`19 (emphasis added). The Petition and the cited portions of TBAV include further
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`heuristic flag examples omitted herein.
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`As these examples indicate, TBAV’s heuristic flags do not describe the
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`instructions themselves (i.e., the actual computer commands or code used), but
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`what operations result when such instructions are executed. Indeed, an examination
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`of the portions of TBAV cited in the Petition reveals that while the flags are used
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`to flag instructions (hence Petitioner’s use of the word), the flags explain why
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`these instructions are suspicious based on what they cause to happen (i.e., the
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`operations they cause). Ex. 1006 at 180-185. TBAV even teaches that one
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`suspicious operation may comprise more than one instruction, explaining that
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`instruction sequences may have malicious purposes. Ex. 1006 at p. 155. Thus, the
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`Board misapprehended or overlooked evidence and argument in the Petition that
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`TBAV’s teachings regarding the heuristic flags disclose the claimed “suspicious
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`computer operations.”
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`2.
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`TBAV Teaches Including “a List of Suspicious Operations
`that may be Attempted by the Downloadable” In a File
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`Though the Board contends that “Petitioner does not identify where TBAV
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`discloses such a ‘list of heuristic flags in the file,’” the Petition includes the
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`following passage: “TbScan provides the option to output scan results to a log file.
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`The results in the log file include the heuristic flags assigned to each file. Ex. 1006,
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`p. 60; Ex. 1002 ¶ 74.” Petition at 20. Cited page 60 of Exhibit 1006 states “The log
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`file lists all infected program files, specifying heuristic flags (see Appendix B) and
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`complete pathnames.” Ex. 1006 at p. 60. The log file includes a list of infected
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`program files with heuristic flags. This is a list of heuristic flags (among other
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`information). Heuristic flags are security profile data for Downloadables (Decision
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`at 13) indicating suspicious program operations, as described above.
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`Accordingly, TBAV teaches and suggests at least “deriving security profile
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`data for the Downloadable, including a list of suspicious operations that may be
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`attempted by the Downloadable.” The Board’s failure to recognize and understand
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`these teachings represents clear error and, therefore, warrants rehearing.
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`B.
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`TBAV Teaches “Storing the Downloadable Security Profile Data
`in a Database”
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`The Board does not consider the log file or the TBSCAN.SIG file to be a
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`database. Decision at 14. However, this finding is based on an unreasonably
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`narrow construction of the term “database.” Id. at 9-10 and 14. As explained
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`below, the Board misapprehended or overlooked Petitioner’s arguments that
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`establish not only why the Board’s construction is too narrow, but also how the log
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`file is a database storing Downloadable security profile data. Accordingly,
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`rehearing and reconsideration should be granted.
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`The Board Erred In Its Construction of “Database.”
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`1.
`The Board construed the term “database” narrowly to mean “a collection of
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`interrelated data organized according to a database schema to serve one or more
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`applications” and rejected Petitioner’s proposed construction of “any structured
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`store of data.” Decision at 9-10. In rejecting Petitioner’s construction, the Board
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`argued that its construction is the broadest reasonable interpretation “in light of the
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`claim language and the specification of the ’494 patent” while also acknowledging
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`that “the ’494 patent does not define the term ‘database’” and that “there is no
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`evidence that Patent Owner disavowed the full scope of that term either in the
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`Specification or during prosecution.” Id. However, the Board’s construction
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`directly conflicts with the intrinsic and extrinsic evidence.
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`While the Board’s construction is the same as was adopted by a court in
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`related litigation between the parties, that court was not bound—as the Board is
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`bound—to construe claim terms according to their broadest reasonable
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`interpretation. While the ’494 patent may not explicitly define “database,” it
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`clearly evidences that a “database” is broader than “a collection of interrelated data
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`organized according to a database schema to serve one or more applications.”
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`As shown in the Petition (Petition at 8 and 10-11), the ’639 application
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`discloses a security database 240 that “stores security policies 305 in a first data
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`storage device 230 portion, known Downloadables 307 in a second data storage
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`device 230 portion and Downloadable Security Profiles (DSPs) data corresponding
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`to the known Downloadables 310 in a third-data storage device 230 portion.” Ex.
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`1005 at p. 8, ll. 14-19. Storage device 230 is described as a device such as a read-
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`only memory (ROM) or magnetic disk. Ex. 1005 at p. 7, ll. 14-15. The intrinsic
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`evidence thus contemplates a database that is simply several separate portions of a
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`storage device, each containing different types of data. The plain language of the
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`’639 application suggests nothing more than arranging the data in the database 240
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`into separate portions of the ROM or magnetic disc, and does not require or
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`suggest a database schema or any type of organization.
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`Against this backdrop, the Board must consider whether “a collection of
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`interrelated data organized according to a database schema to serve one or more
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`applications” is the broadest reasonable interpretation of “database,” or whether
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`there is a broader reasonable interpretation. Patent Owner’s own evidence provides
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`additional reasonable definitions for “database” that are broader than the Board’s
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`construction. Patent Owner cites the “database” definition from the IBM
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`Dictionary of Computing, Tenth Edition (1994). Preliminary Response at 12, Ex.
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`2002 at 3. Indeed, this entry defines “database” four ways. Of those, the Board’s
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`definition is the narrowest. Both “a collection of data fundamental to a system” and
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`“a collection of data fundamental to an enterprise” are broader as they impose no
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`restrictions on whether the data is interrelated or how the data is stored. Ex. 2002 at
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`3. The Board correctly notes that “there is no evidence that Patent Owner
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`disavowed the full scope of (database) either in the Specification or during
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`prosecution.” Decision at 10. As the intrinsic evidence is consistent with this
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`definition, “a collection of data fundamental to a system” is the broadest
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`reasonable definition of this term.
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`Furthermore, this definition fits the ’639 application’s disclosure better than
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`the Board’s construction. As discussed above, the patent does not disclose, teach,
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`or suggest a database schema. However, the ’639 application does describe a
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`collection of data (a security database 240 that stores data in data storage device
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`230 portions (Ex. 1005 at p. 8, ll. 14-19)) fundamental to a system (the data in the
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`security database 240 is used “for determining whether a received Downloadable is
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`hostile” (Ex. 1005 at p. 7, ll. 16-19; p. 4, ll. 1-6) and includes security policies 305,
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`known Downloadables 307,and DSPs corresponding to the known Downloadables
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`310 (Ex. 1005 at p. 8, ll. 14-19)). There is nothing in this description that requires
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`any specific organization of the data the database, or that the data in the database
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`be “interrelated.” Construing “database” as “a collection of data fundamental to a
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`system” comports more fully with the intrinsic evidence than the Board’s
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`construction.
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`Other Board decisions construing the term “database” indicate that the
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`Board’s construction in the ’494 patent context is too narrow. In MySpace, Inc. v.
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`Graphon Corp., 672 F.3d 1250 (Fed. Cir. 2012), the Federal Circuit upheld a lower
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`court’s construction of “database” as “a collection of data with a given structure
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`that can be stored and retrieved.” MySpace, 672 F.3d at 1255-57. This
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`construction aligns with Petitioner’s proposed construction of “any structured store
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`of data,” particularly in light of the Federal Circuit’s observation that “all types of
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`databases . . . are searchable and retrievable.” Id. at 1256. In so doing, the Federal
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`Circuit rejected the argument that “database” should be limited to a “relational
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`database,” which the Federal Circuit described as a database that “separates the
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`stored data into multiple relations or ‘tables’ and connects them through the use of
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`identification (“ID”) fields. Id. at 1254. The requirement in the Board’s
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`construction for the data to be “interrelated” implies a relational database, which is
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`inconsistent with the Federal Circuit’s refusal to narrowly construe a “database” as
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`limited to a “relational database” in MySpace.
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`In CBM2013-00038, “database” was construed as “an organized collection
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`of data” based on a dictionary citation, CBM2013-00038, Paper No. 57 (Final
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`Written Decision) at 9. This construction is very similar to the construction
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`presented in the Petition. While this decision (unlike MySpace) is non-precedential,
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`it is nonetheless indicative of a broader accepted meaning of database.
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`Petitioner notes that this panel adopted the same construction of database in
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`in IPR2015-00907 as adopted here. IPR2015-00907, Paper No. 8, at 8-10. That
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`decision is non-precedential and therefore is not binding here. More significantly,
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`that decision is distinguishable because it relied at least in part on portions of the
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`specification at issue in that case that are not applicable here. In particular,
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`although the ’494 patent at issue in this case is a continuation of U.S. Patent No.
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`7,613,926 (the “’926 patent) at issue in IPR2015-00907, the disclosure in the ’926
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`that was relied on by the Board to support its construction of database in IPR2015-
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`00907 has nothing at all to do with the subject matter of the ’494 patent claims,
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`which are based entirely on the ’639 application. Petition at 7-8. Indeed, the Board
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`appears to have appreciated this difference because it did not cite the
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`corresponding portions of the ’494 patent to support its construction of “database”
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`in the Decision. Decision at 9-10.
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`Patent Owner offered its inappropriately narrow definition of “database” to
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`try to exclude the specific prior art put forth by Petitioner. Preliminary Response at
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`p. 12. However, this definition is far narrower than necessary in view of the
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`intrinsic evidence and is far narrower than definitions in Patent Owner’s own
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`extrinsic evidence that fully comport with the ’639 application’s description. By
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`adopting this definition, the Board misapprehended or overlooked the Petitioner’s
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`evidence as laid out in the Petition. This constitutes clear error warranting
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`reconsideration. Petitioner respectfully requests adoption of the construction
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`proposed in the Petition at p. 13, “any structured store of data.” Alternatively, “a
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`collection of data fundamental to a system” should be adopted.
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`2.
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`Storing Heuristic Flag Data in a Log File is “Storing the
`Downloadable Security Profile Data in a Database”
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`The Decision states that
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`the evidence cited by Petitioner does not demonstrate that TBAV and
`Ji teach or suggest storing security profile data in a ‘database,’ as that
`term is properly construed. Neither the ‘log file’ to which Petitioner
`asserts ‘TBAV teaches that heuristic analysis results… can be output’
`nor the ‘TBSCAN.SIG file’ to which Petitioner asserts TBAV’s
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`TbGenSig program adds virus signatures (Pet. 25) is disclosed to be a
`database. Decision at 14.
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`IPR2015-01022
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`As discussed above, the Board’s construction of “database” is clearly
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`erroneous. Under either construction advanced by Petitioner herein, both the log
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`file and the TBSCAN.SIG file are databases. Under the narrower construction, “a
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`collection of data fundamental to a system,” both the log file and the
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`TBSCAN.SIG file are a collection of data. The log file includes a list of infected
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`program files with heuristic flags (i.e., data). Ex. 1006 at p. 60. This data is
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`fundamental to the system. The log file contains scan results, and the TBAV
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`system protects against viruses and, among other things, reports virus scan results.
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`Ex. 1006 at pp. 1, 60. Thus, the log file is a database. Under the broader
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`construction, the log file is a structured store of data, “the log file lists all infected
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`program files, specifying heuristic flags” (emphasis added). Ex. 1006 at p. 60.
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`These features of the log file are laid out in the Petition. Petition at 18-20. As
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`explained above, the list of heuristic flags constitutes Downloadable security
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`profile data. The Board’s incorrect construction of “database” and resulting
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`misapprehension of Petitioner’s arguments explaining how the database contains
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`Downloadable security profile data is clear error and warrants rehearing.
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`V. Conclusion
`Petitioner respectfully submits the Board misapprehended or overlooked
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`Petitioner’s obviousness argument, and applied erroneous legal standards in its
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`analysis, amounting to an abuse of discretion. For these reasons, Petitioner
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`respectfully requests rehearing of the Board's decision, a finding that the Petition
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`has established a reasonable likelihood that Petitioner will prevail with respect to
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`the obviousness of claims 1, 10, 14, and 18 of the ’494 patent, and a finding that
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`inter partes review should be instituted.
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`Dated: October 26, 2015
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`
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`Respectfully Submitted,
`
` /James M. Heintz/
`James M. Heintz
`Reg. No. 41,828
`DLA PIPER LLP (US)
`11911 Freedom Drive, Suite 300
`Reston, VA 20190
`(703) 773-4148
`
`Attorney for Petitioner Sophos Inc.
`
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`
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`WEST\264243031.1
`
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`15
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`CERTIFICATE OF SERVICE
`
`IPR2015-01022
`Request for Rehearing
`
`
`Pursuant to 37 C.F.R. 37 C.F.R. §§ 42.6(e) and 42.105(b), the undersigned certifies that
`
`on October 26, 2015, a complete and entire copy of this PETITIONER’S REQUEST
`FOR REHEARING OF DECISION DENYING INSTITUTION OF INTER
`PARTES REVIEW OF U.S. PATENT NO. 8,677,494 was served by email, at the
`following addresses of record:
`
`Bey & Cotropia Pllc
`Attn: Dawn-Marie Bey
`213 Bayly Ct
`Richmond, VA 23229-7343
`804.404.2637
`dbey@beycotropia.com
`
`Paul J. Andre
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`pandre@kramerlevin.com
`
`
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`Dated: October 26, 2015
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`
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`Respectfully Submitted,
`
`
`
`
`
` /James M. Heintz/
`James M. Heintz
`Reg. No. 41,828
`DLA PIPER LLP (US)
`11911 Freedom Drive, Suite 300
`Reston, VA 20190
`(703) 773-4148
`
`Attorney for Petitioner Sophos Inc.
`
`WEST\264243031.1
`
`
`16
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