Petition for Inter Partes Review of
`U.S. Patent No. 6,816,898
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`ServiceNow, Inc.
`Petitioner
`
`v.
`
`BMC Software, Inc.
`Patent Owner
`
`U.S. Patent No. 6,816,898
`Filing Date: August 16, 2000
`Issue Date: November 9, 2004
`
`TITLE: INTERFACING EXTERNAL METRICS INTO A
`PERFORMANCE MANAGEMENT SYSTEM
`
`
`
`
`
`PETITION FOR INTER PARTES REVIEW
`OF U.S. PATENT NO. 6,816,898
`
`

`
`Table of Contents
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`
`Page
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`
`I. MANDATORY NOTICES UNDER 37 C.F.R. § 42.8(A)(1) ....................... 1
`A.
`Real Party-ln-Interest under 37 C.F.R. § 42.8(b)(1) ............................ 1
`B.
`Related Matters under 37 C.F.R. § 42.8(b)(2) ..................................... 1
`C.
`Lead and Back-Up Counsel under 37 C.F.R. § 42.8(b)(3) .................. 1
`D.
`Service Information .............................................................................. 2
`E.
`Power of Attorney ................................................................................ 2
`PAYMENT OF FEES - 37 C.F.R. § 42.103 .................................................. 2
`II.
`III. REQUIREMENTS FOR INTER PARTES REVIEW UNDER 37
`C.F.R. §§ 42.104 AND 42.108 ....................................................................... 2
`A. Grounds for Standing under 37 C.F.R. § 42.104(a) ............................. 2
`B.
`Identification of Challenge under 37 C.F.R. § 42.104(b) and
`Statement of Precise Relief Requested ................................................ 3
`Requirements for Inter Partes Review 37 C.F.R. § 42.108(c) ............. 4
`C.
`IV. BRIEF BACKGROUND OF THE UNDERLYING TECHNOLOGY ......... 4
`A.
`Computer and Network Management Using SNMP and MIBs ........... 5
`B.
`Scripts and Scripting Languages .......................................................... 6
`SUMMARY OF THE CLAIMED SUBJECT MATTER .............................. 7
`A.
`The Specification of the ’898 Patent .................................................... 7
`B.
`The Claims of the ’898 Patent .............................................................. 9
`VI. CLAIM CONSTRUCTION UNDER 37 C.F.R. § 42.104(B)(3) ................. 10
`A.
`“meta data” ......................................................................................... 11
`B.
`“accompanying” ................................................................................. 12
`C.
`“performance management data” ....................................................... 14
`D.
`“business-oriented performance management data” .......................... 15
`E.
`“service monitor” ............................................................................... 16
`VII. CLAIMS 1-12 OF THE ’898 PATENT ARE UNPATENTABLE ............. 16
`A.
`Brief Summary and Date Qualification of the Prior Art .................... 17
`
`V.
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`-i-
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`Table of Contents
`(continued)
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`Page
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`-ii-
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`
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`Brief Overview of Miller (Ex. 1003) ....................................... 17
`Brief Overview of Kernighan and O’Reilly (Exs. 1004,
`1005) ........................................................................................ 19
`B. Ground 1: Claims 1-7 and 9-12 Are Obvious Over Miller ............... 20
`1.
`Claim 1 ..................................................................................... 20
`a.
`“collecting performance management data having
`accompanying meta data, the meta data including
`information defining the performance management
`data and information indicating operations to be
`performed on the performance management data”
`(Claim 1[a]) ................................................................... 20
`(1)
`performance management data “having
`accompanying meta data, the meta data
`including information defining the
`performance management data” .......................... 23
`the meta data having “information indicating
`operations to be performed on the
`performance management data” .......................... 25
`“generating output data for display using the
`collected performance management data according
`to the information indicating the operations to be
`performed on the performance management data”
`(Claim 1[b]) ................................................................... 27
`Claim 2 ..................................................................................... 28
`a.
`“a performance management system receiving at
`least one script-based program” (Claim 2[a]) ............... 29
`“running the script-based program via the
`performance management system to periodically
`collect the performance management data from
`components in a network” ............................................. 30
`Claim 3 ..................................................................................... 33
`
`(2)
`
`b.
`
`b.
`
`1.
`2.
`
`2.
`
`3.
`
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`

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`Table of Contents
`(continued)
`
`Page
`
`a.
`
`b.
`
`4.
`5.
`6.
`
`“integrating the at least one script-based program
`into the performance management system as a
`service monitor” (Claim 3[a])........................................ 33
`“using the service monitor to periodically collect
`the performance data” (Claim 3[b]) .............................. 34
`Claim 4 ..................................................................................... 34
`Claim 5 ..................................................................................... 36
`Claim 6 (Independent Claim) ................................................... 37
`a.
`“A method for providing an interface between a
`user and a performance management system, the
`performance management system being connected
`with a network, the network including a plurality
`of components coupled by a plurality of
`connections, the performance management system
`collecting data of the components, the method
`comprising” (Claim 6, Preamble) .................................. 37
`“receiving at least one script-based program from
`the user, the script-based programs defining data
`types not provided by the performance
`management system” (Claim 6[a]) ................................ 39
`“integrating the program to the performance
`management system as a service monitor, the
`performance management system using the service
`monitor to periodically collect data of the defined
`data types from the components” (Claim 6[b]) ............. 41
`Claim 7 ..................................................................................... 43
`7.
`Claim 9 ..................................................................................... 44
`8.
`Claim 10 ................................................................................... 45
`9.
`10. Claim 11 ................................................................................... 46
`11. Claim 12 ................................................................................... 46
`
`b.
`
`c.
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`-iii-
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`

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`Table of Contents
`(continued)
`
`Page
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`
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`C. Ground 2: Claim 8 Is Obvious Over Miller in view of
`Kernighan and O’Reilly ..................................................................... 47
`a.
`“receiving input from the user, the input specifying
`a rate at which the service monitor polls the
`components” (Claim 8[a]) ............................................. 48
`“receiving input from the user, the input specifying
`names, types and units of input parameters and
`output variables of the script-based program”
`(Claim 8[b]) ................................................................... 48
`“using the input from the user to setup the program
`as a service monitor of the performance
`management system” (Claim 8[c]) ................................ 55
`VIII. CONCLUSION ............................................................................................. 56
`
`b.
`
`c.
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`-iv-
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 6,816,898
`
`
`
`Ex. No
`
`List of Exhibits
`
`Description of Document
`
`1001 U.S. Patent No. 6,816,898 to Joe Scarpelli et al.
`
`1002 Declaration of Tal Lavian, Ph.D.
`
`1003
`
`1004
`
`1005
`
`1006
`
`1007
`
`1008
`
`1009
`
`1010
`
`1011
`
`1012
`
`Todd Miller et al., satool – A System Administrator’s Cockpit, An
`Implementation, published in Proceedings of the 7th USENIX
`Conference on System Administration (1993), pp. 119-129
`
`Excerpts from Brian W. Kernighan et al., The C Programming
`Language (2d ed. 1988)
`
`Excerpts from Tim O’Reilly et al., Windows 98 in a Nutshell (1999)
`
`Excerpts from Evi Nemeth et al., UNIX System Administration
`Handbook (1989)
`
`Request for Comments (RFC) 1067, A Simple Network Management
`Protocol (August 1988)
`
`Excerpts from Heinz-Gerd Hegering et al., Integrated Management of
`Networked Systems (1999)
`
`Excerpts from Randal L. Schwartz et al., Learning Perl (2d ed. 1997)
`
`Excerpts from Microsoft Press Computer Dictionary (3d ed. 1997)
`
`Excerpts from Random House Webster’s College Dictionary (2000)
`
`Excerpts from “Joint Claim Construction Chart” filed on June 26, 2015
`BMC Software, Inc. v. ServiceNow, Inc., No. 14-CV-903 JRG (E.D.
`Tex.)
`
`
`
`
`
`-v-
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 6,816,898
`
`
`ServiceNow, Inc. (“Petitioner”) submits this Petition for Inter Partes Review
`
`of claims 1-12 of U.S. Patent No. 6,816,898 (Ex. 1001) (“’898 patent”).
`I. MANDATORY NOTICES UNDER 37 C.F.R. § 42.8(A)(1)
`A. Real Party-ln-Interest under 37 C.F.R. § 42.8(b)(1)
`The Petitioner, ServiceNow, Inc., is the real party-in-interest.
`B. Related Matters under 37 C.F.R. § 42.8(b)(2)
`The ’898 patent is the subject of one pending litigation involving the
`
`Petitioner: BMC Software, Inc. v. ServiceNow, Inc., Case No. 14-CV-00903 JRG
`
`(E.D. Tex. Sept. 23, 2014), in which the patent owner contends that the Petitioner
`
`infringes the ’898 patent.
`C. Lead and Back-Up Counsel under 37 C.F.R. § 42.8(b)(3)
`Petitioner provides the following designation of counsel.
`
`LEAD COUNSEL
`Heidi L. Keefe (Reg. No. 40,673)
`hkeefe@cooley.com
`zpatdcdocketing@cooley.com
`COOLEY LLP
`ATTN: Patent Group
`1299 Pennsylvania Ave., NW, Suite 700
`Washington, DC 20004
`Tel: (650) 843-5001
`Fax: (650) 849-7400
`
`
`
`
`
`
`BACK-UP COUNSEL
`Phillip E. Morton (Reg. No. 57,835)
`pmorton@cooley.com
`zpatdcdocketing@cooley.com
`COOLEY LLP
`ATTN: Patent Group
`1299 Pennsylvania Ave., NW, Suite 700
`Washington D.C. 20004
`
`T: (703) 456‐8668
`F: (703) 456‐8100
`
`Andrew C. Mace (Reg. No. 63,342)
`amace@cooley.com
`zpatdcdocketing@cooley.com
`COOLEY LLP
`ATTN: Patent Group
`1299 Pennsylvania Ave., NW, Suite 700
`Washington, DC 20004
`-1-
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`
`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 6,816,898
`
`
`LEAD COUNSEL
`
`BACK-UP COUNSEL
`Tel: (650) 843-5808
`Fax: (650) 849-7400
`
`Service Information
`D.
`This Petition is being served to the current correspondence address for the
`
`’898 patent, BRAKE HUGHES BELLERMANN LLP, c/o CPA Global, P.O. Box 52050,
`
`Minneapolis, MN 55402.
`
`The Petitioner may be served at the addresses provided above for lead and
`
`back-up counsel, and consents to electronic service at those addresses.
`Power of Attorney
`E.
`Filed concurrently in accordance with 37 C.F.R. § 42.10(b).
`PAYMENT OF FEES - 37 C.F.R. § 42.103
`This Petition requests review of twelve (12) claims of the ’898 patent.
`
`II.
`
`Accordingly, a payment of $23,000 is submitted herewith. This payment is
`
`calculated based on a $9,000 request fee (for up to 20 claims), and a post-
`institution fee of $14,000 (for up to 15 claims). See 37 C.F.R. § 42.15(a). This
`
`Petition meets the fee requirements of 35 U.S.C. § 312(a)(1).
`III. REQUIREMENTS FOR INTER PARTES REVIEW UNDER 37 C.F.R. §§ 42.104
`AND 42.108
`A. Grounds for Standing under 37 C.F.R. § 42.104(a)
`The Petitioner certifies that the ’898 patent is available for inter partes
`
`review and that the Petitioner is not barred or otherwise estopped from requesting
`inter partes review on the ground identified in the present Petition. The Petitioner
`
`
`
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`-2-
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 6,816,898
`
`is unaware of any previous petition for inter partes review or request for
`
`reexamination with respect to the ’898 patent.
`Identification of Challenge under 37 C.F.R. § 42.104(b) and
`B.
`Statement of Precise Relief Requested
`The Petitioner respectfully requests that the Board initiate inter partes
`
`review of claims 1-12 of the ’898 patent. This Petition cites the following prior art
`references, included as Exhibits 1003 through 1005:
`
`Ex. No.
`1003
`
`1004
`
`1005
`
`Description of Prior Art Reference
`
`Todd Miller et al., satool – A System Administrator’s Cockpit, An
`Implementation, published in Proceedings of the 7th USENIX
`Conference on System Administration (1993), pp. 119-129
`
`Excerpts from Brian W. Kernighan et al., The C Programming
`Language (2d ed. 1988)
`
`Excerpts from Tim O’Reilly et al., Windows 98 in a Nutshell (1999)
`
`As explained in Part VII.A.1 below (discussion under “Prior Art and Date
`
`Qualification”), each reference listed above qualifies as prior art to the ’898 patent.
`
`The grounds on which this Petition is based are listed below:
`
`Basis for Challenge
`Ground Claims
`1
`1-7, 9-12 Unpatentable over Miller under 35 U.S.C. § 103(a)
`2
`8
`Unpatentable over Miller in view of Kernighan and O’Reilly
`under 35 U.S.C. § 103(a)
`
`Part VII below provides a detailed explanation as to why claims 1-12 are
`
`unpatentable based on the grounds identified above. This Petition cites additional
`
`prior art materials (Exhibits 1006 through 1011) for background purposes. The
`
`
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`-3-
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 6,816,898
`
`Petitioner has also submitted an accompanying Declaration of Tal Lavian, Ph.D.
`(“Lavian Decl.”) (Exhibit 1002), a technical expert with extensive experience in
`
`software development,
`
`computer networks,
`
`and network management
`
`technologies. (Lavian Decl., Ex. 1002, ¶¶ 5-14, Ex. A.)
`C. Requirements for Inter Partes Review 37 C.F.R. § 42.108(c)
`The Board should institute inter partes review of claims 1-12 because this
`Petition establishes a reasonable likelihood of prevailing. As explained in Part
`VII, each limitation of claims 1-12 is disclosed and/or suggested by the prior art.
`IV. BRIEF BACKGROUND OF THE UNDERLYING TECHNOLOGY
`The ’898 patent relates to the field of network management and generally
`
`describes a method for collecting performance management data having
`
`accompanying metadata. (’898, Ex. 1001, Abstract, 1:63-2:1.) This section will
`
`provide a brief background of the state of the art pertinent to a person of ordinary
`skill in the art as of August 2000. (See Lavian Decl., ¶¶ 22-36.)1
`
`
`1 As explained by Dr. Lavian, a person of ordinary skill in the art would have had
`at least a bachelor’s degree in electrical engineering or computer science (or
`
`equivalent degree or experience) with at least four years of computer programming
`
`experience. (Lavian Decl., Ex. 1002, ¶¶ 18, 19.) Such a person would also have
`
`had an understanding of computer systems and networks, the software for
`
`monitoring those systems and networks (such as Network Management Systems
`
`software), and the tools for creating such software such as scripting and
`
`programming languages. (Id. ¶ 19.)
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`Petition for Inter Partes Review of
`U.S. Patent No. 6,816,898
`
`A. Computer and Network Management Using SNMP and MIBs
`By no later than the 1980s, businesses and enterprises frequently used
`
`computers that were connected to a network (commonly known as a “Local Area
`
`Network” (LAN)). As the number of devices connected to a network increased, so
`
`did the need for software tools to monitor and manage those devices. An entire
`
`field referred to as “network management” grew out of this need. (Lavian Decl., ¶
`
`24.) For example, in August 1988, a standardized protocol known as the Simple
`
`Network Management Protocol (“SNMP”) was introduced and remains in wide use
`
`today. (See RFC 1067, A Simple Network Management Protocol (August 1988),
`
`Ex. 1007, § 1.) SNMP, as its name suggests, provides a straightforward protocol
`
`that allows one “network element” (such as a computer) to gather information
`
`about and monitor another network element.
`
`The protocol provides a means by which “management information for a
`network element may be inspected or altered by logically remote users.” (Id., § 1.)
`
`Each network element typically contains a software program known as an SNMP
`
`“agent” that is responsible for responding to SNMP requests from the network
`
`management “station” (“NMS”). The SNMP agent can, for example, gather
`
`information about the network element and report that information back to the
`management station. (Id., § 3; Lavian Decl. ¶ 25.) In general, the NMS requests
`
`information from a device, and the SNMP agent for that device gathers the specific
`
`information and returns it to the NMS. (Lavian Decl. ¶ 26.)
`A key component of network management using SNMP is a “Management
`Information Base” or “MIB.” The term “MIB” generally refers to a collection of
`
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`Petition for Inter Partes Review of
`U.S. Patent No. 6,816,898
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`information that describes characteristics about a particular network element being
`monitored (such as a computer). (See Heinz-Gerd Hegering et al., Integrated
`
`Management of Network Systems (1999) (“Hegering”), Ex. 1008, at 158.) This
`information is often referred to as MIB “variables” or “objects.” (Id.)
`
`A MIB is typically associated with an SNMP agent and follows a
`
`hierarchical structure that defines how the variables or objects are arranged and
`
`may be identified. (Lavian Decl. ¶¶ 28, 29.) The MIB may be used by the SNMP
`agent to respond to requests for information from the NMS. (Id. ¶ 29.)
`Scripts and Scripting Languages
`B.
`The term “script” refers to a type of computer program that was well-known
`
`to persons of ordinary skill in the art. The ’898 patent acknowledges, in fact, that
`
`script-based programs were already being used in a computer and network
`
`management context before August 2000. (’898, 2:9-17.) In fact, scripts pre-date
`
`the ’898 patent by decades. For example, IBM used scripts for IBM mainframe
`
`computers in the 1950s, and the first PCs introduced in the early 1980s included
`
`scripting languages such as BASIC. (Lavian Decl. ¶ 30.)
`
`Generally speaking, a script includes program instructions written in a plain
`
`text, interpretable programming language. This means that, in contrast to an
`
`executable program that is executed directly by a microprocessor (or CPU), a
`
`script-based program is generally executed by another program called an
`
`interpreter, which carries out the instructions in the script. (Lavian Decl. ¶ 31.)
`
`There are many different computer programming languages that can be used
`
`to write script-based programs. The ’898 patent, for example, refers to at least two
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`Petition for Inter Partes Review of
`U.S. Patent No. 6,816,898
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`examples, “shell script” languages and “Perl.” (’898, 7:18-20.) An example of a
`
`shell script language, called “sh” or the “Bourne shell,” dates from 1977 and was
`
`included in Bell Laboratories’ legendary UNIX operating system. Perl, which is
`
`short for “Practical Extraction and Reporting Language,” is a scripting language
`
`that was originally developed in 1987. (Lavian Decl. ¶ 32.)
`
`Script-based programs can be written by a computer programmer and saved
`to a text file on the computer. (Id. ¶ 33.) Many scripts can be executed by typing
`in the name of the script through a “command-line” interface. (Id. ¶ 33-34.) Dr.
`
`Lavian provides a detailed example of exemplary a script written in Perl to
`illustrate creation and execution of scripts on a computer. (Id. ¶¶ 33-36.)
`SUMMARY OF THE CLAIMED SUBJECT MATTER
`V.
`A. The Specification of the ’898 Patent
`The ’898 patent relates to the field of network management and generally
`
`describes a method for collecting performance management data having
`
`accompanying meta data. (’898, Abstract, 1:63-2:1.) The data can be collected
`
`using a script-based program that can be integrated into a larger performance
`
`management system. (’898, 7:28-30, 8:17-19.) The Background of the Invention
`
`acknowledges that the prior art already included systems that collect performance
`management data from the network. (’898, e.g., 1:38-41 (“Typical network
`
`management systems collect information regarding the operation and performance
`
`of the network and analyze the collected information to detect problems in the
`
`network.”).) Figure 3, reproduced below, illustrates several of concepts key to
`
`understanding the claims of the ’898 patent:
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`-7-
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`Petition for Inter Partes Review of
`U.S. Patent No. 6,816,898
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`
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`(’898, Fig. 3; see also id., 2:42-43 (“FIG. 3 illustrates a data flow diagram of
`
`monitoring system for monitoring a network of components.”).)
`Script-based program 110 in Figure 3 (at upper left, above) can be a file
`
`containing instructions written in a scripting language, such as Perl or a shell script
`
`language. (’898, 7:14-20; see also id., Fig. 4, 9:52-56.) Generally speaking, the
`
`script-based program contains instructions for collecting particular data from
`components on the network. (’898, e.g., 7:28-30, 9:52-56.)
`
`The ’898 patent further explains that the script-based program 110 can be
`
`incorporated into a larger network management system (e.g., network monitor
`150). (’898, e.g., 7:15-18, 8:17-19.) To do so, the script-based program is
`
`registered with the system as a service monitor 140. (’898, 8:44-46, 8:52-54.) The
`
`network management system runs the service monitor automatically to collect data
`from the network components. (’898, 11:13-16; see also id., 10:46-48.)
`
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`Petition for Inter Partes Review of
`U.S. Patent No. 6,816,898
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`The performance management system also uses “meta data” accompanying
`
`the data collected from the network components. (’898, 4:11-22.) This metadata
`
`“indicates what it is that is being collected and what is to be done with the data
`
`being collected.” (’898, 4:15-17.) “For example, the meta data may indicate that
`
`an alarm is to be associated with the data or may indicate how to administer.”
`
`(’898, 4:17-19.) The performance management system processes the collected
`
`performance management data, which may result in “generat[ing] customized
`graphs 181, customized records 182, and/or setting an alarm 183 if necessary.”
`
`(’898, 7:30-34.)
`The Claims of the ’898 Patent
`B.
`The ’898 patent has two independent claims, claims 1 and 6. Claim 1
`
`recites:
`
`1.
`
`A method comprising:
`
`[a]
`
`[b]
`
`collecting performance management data having accompanying
`meta data, the meta data including information defining the
`performance management data and information indicating
`operations to be performed on the performance management
`data; and
`
`the collected
`generating output data for display using
`performance management data according to the information
`indicating the operations to be performed on the performance
`management data. and a second indicator for the at least one IT
`subcomponent, wherein the first and second indicator are each
`
`
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`Petition for Inter Partes Review of
`U.S. Patent No. 6,816,898
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`separately visible at the same time on a single display window
`of a display unit.
`
`(’898, 12:55-64 (Claim 1).) The bracketed notations above (e.g., “[a],” “[b],” etc.)
`
`were added to facilitate identification of these limitations in this Petition. The
`
`second independent claim, claim 6, recites:
`
`6.
`
`[a]
`
`[b]
`
`A method for providing an interface between a user and a
`performance management
`system,
`the
`performance
`management system being connected with a network, the
`network including a plurality of components coupled by a
`plurality of connections, the performance management system
`collecting data of the components, the method comprising:
`
`receiving at least one script-based program from the user, the
`script-based programs defining data types not provided by the
`performance management system;
`
`integrating the program to the performance management system
`as a service monitor, the performance management system
`using the service monitor to periodically collect data of the
`defined data types from the components.
`
`The additional claims addressed in this Declaration—i.e., claims 2-5 and 7-12—
`
`depend directly or indirectly from independent claim 1 or 6. Those claims are
`addressed in detail in the analysis in Part VII below.
`VI. CLAIM CONSTRUCTION UNDER 37 C.F.R. § 42.104(B)(3)
`“A claim in an unexpired patent shall be given its broadest reasonable
`
`construction in light of the specification of the patent in which it appears.” 37
`
`
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`-10-
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`Petition for Inter Partes Review of
`U.S. Patent No. 6,816,898
`
`C.F.R. § 42.100(b). As the Federal Circuit has recognized, the “broadest
`
`reasonable construction” standard is different from the manner in which the scope
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`of a claim is determined in litigation. See In re Swanson, 540 F.3d 1368, 1377‐78
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`(Fed. Cir. 2008).
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`The parties in the concurrent litigation have also exchanged claim
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`construction positions for these terms and filed them with the district court.
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`Although they are not binding on the Board, they are nonetheless included
`herewith so the Board is aware of the positions taken by the parties. (See Joint
`Claim Construction Chart, Ex. 1012.)2
`“meta data”
`A.
`The term “meta data” is recited in independent claim 1. The proper
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`construction of “meta data” is simply “data about other data.” This construction
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`is consistent with the ordinary meaning of the term in the field at the time. (Lavian
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`Decl. ¶ 48.) For example, the Microsoft Press Computer Dictionary from 1997
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`defines “meta data” is “[d]ata about data. For example, the title subject, author, and
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`2 Exhibit 1012 is a copy of the “Joint Claim Construction Chart” (JCCC) filed
`with the district court in which the patent owner and the Petitioner set forth
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`positions on the meaning of certain terms. Because the district court litigation
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`involves patents beyond the ’898 patent, the JCCC included in Exhibit 1012 was
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`redacted to remove portions related to patents other than the ’898 patent.
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`size of a file constitute meta data about the file.” (Microsoft Press Computer
`Dictionary (3d ed. 1997), Ex. 1010, at 305 (emphasis added).)3
`This definition is consistent with the specification of the ’898 patent. For
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`example, the specification states that “the meta data may indicate that an alarm is
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`to be associated with the data or may indicate how to administer.” (’898, 4:15-19.)
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`As another example, the patent also discusses “meta data that indicates what
`operations or actions to perform on or with the data.” (Id., 4:26-27.) One of
`ordinary skill in the art would have therefore have understood “meta data” under
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`its broadest reasonable construction to mean “data about other data.”
`“accompanying”
`B.
`The term “accompanying” is recited in claim 1 as part of the larger phrase,
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`“collecting performance management data having accompanying meta data.” The
`broadest reasonable interpretation of “accompanying” is “associated.”
`The Random House Webster’s College Dictionary (2000) [Ex. 1011]
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`provides a number of definitions for the verb “accompany”:
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`1. to go along or in company with. 2. to exist or occur in
`association with: Thunder accompanies lightning. 3. to cause
`to be associated with or attended by: He accompanied his
`speech with gestures. . . . [additional definitions related to
`musical accompaniment omitted]
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`3 Persons of ordinary skill in the art use the term “meta data” and “metadata,” the
`latter lacking any intervening space character, interchangeably.
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`(Random House Webster’s College Dictionary (2000), Ex. 1011, at 9 (italics in
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`original).) The second and third definitions above confirm that the present-tense
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`verb “accompanying” can simply mean being “associated with.”
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`The first definition quoted above implies physical togetherness, such as
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`when two people “accompany” each other on a business trip. But as explained by
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`Dr. Lavian, a person of ordinary skill in the art would not have adopted that
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`meaning for the ’898 patent. (Lavian Decl. ¶ 51.) In fact, there is nothing in the
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`specification that indicates that “accompanying,” under its broadest reasonable
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`construction, requires that the claimed “performance management data” and “meta
`data” physically accompany or travel with each other. (Id.) To the contrary, the
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`’898 patent explains that performance management data is collected from the
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`network and analyzed using associated meta data that was already present in the
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`performance management system:
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`Once the [service] monitor is activated, the network performs
`[sic] monitoring and management system runs it periodically to
`collect the type of data defined in the service monitor. Network
`monitor also analyzes the data with meta data, which has
`already been defined within performance monitoring and
`management system.
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`(’898, Ex. 1001, 10:67-11:6, 4:11-13 (“In the present invention, generic modules,
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`as well as the data storage, receive data and are able to process the data using
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`information that accompanies the data.”).)
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`Petition for Inter Partes Review of
`U.S. Patent No. 6,816,898
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`Because the specification confirms that the “meta data” has “already been
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`defined within [the] performance monitoring and management system,” a person of
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`ordinary skill in the art would understand that the “performance management data”
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`has accompanying “meta data” in the sense that the two are associated with each
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`other, but the metadata need not “accompany” the performance management data
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`in the sense of requiring physical togetherness. (Lavian Decl. ¶ 51.) Accordingly,
`the broadest reasonable construction of “accompanying” is “associated.”
`“performance management data”
`C.
`The term “performance management data” is recited in each independent
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`claim. This term is described in the following passage of the specification:
`
`FIG. 2 illustrates an embodiment of a network monitor 22
`capable of detecting problems or potential problems in a
`network environment. Network monitor 22 includes a data
`collection module 30 that collects information from various
`devices or applications, such as information regarding network
`utilization (or device utilization), lost packets, response time, or
`number of errors. Data collection module 30 collects
`information regarding the operation or performance of the
`network environment on one or more communication links 31.
`Data collection module 30 can collect data from any number of
`networks and any number of network devices or applications.
`
`(’898, Ex. 1001, 6:1-12 (underlining added).) Based on this description,
`“performance management data” under its broadest reasonable construction is
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`“information regarding the operation or performance of the network
`environment.”
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`“business-oriented performance management data”
`D.
`The term “business-oriented performance management data” is recited in
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`dependent claim 7, which reads: “The method defined in claim 6 wherein the data
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`collected by the service monitor is business-oriented performance management
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`data of the components.” The ’898 patent does not define “business-oriented
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`performance management data,” and in fact, the written description does not use
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`this phrase at all. It refers once to “business oriented network data,” and uses the
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`phrase “business-oriented data” four times. (’898, 2:1-2, 2:2-4, 9:53-56, 11:41-46,
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`11:46-49.) With respect to “business-oriented data,” the patent states:
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`In fact, management or business-oriented data is usually
`neglected by current network management system. For
`example, a typical network management system does not keep
`track of the number of tickets sold in an airline’s web site, even
`though the statistics on the number of tickets sold would be
`very useful to an airline using the network management system.
`
`(’898, 2:2-8.) Although it is not clear whether the above passage actually relates to
`“business-oriented performance management data,” in any c