Trials@uspto.gov
`571-272-7822
`
`
`Paper 7
`Entered: February 16, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ARISTA NETWORKS, INC.,
`Petitioner,
`
`v.
`
`CISCO SYSTEMS, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-01710
`Patent 7,224,668 B1
`____________
`
`Before BRYAN F. MOORE, MATTHEW R. CLEMENTS, and
`PETER P. CHEN, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 325(d); 37 C.F.R. § 42.108
`
`I. INTRODUCTION
`Petitioner, Arista Networks, Inc., filed a Petition for inter partes
`review of claims 1–10, 12, 13, 15–28, 30, 31, 33–43, 45–49, 51–64, 66, 67,
`and 69–72 of U.S. Patent No. 7,224,668 B1 (Ex. 1101, “the ’668 patent”).
`Paper 2 (“Pet.”). Patent Owner, Cisco Systems, Inc., filed a Preliminary
`
`
`571-272-7822
`
`
`Paper 7
`Entered: February 16, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ARISTA NETWORKS, INC.,
`Petitioner,
`
`v.
`
`CISCO SYSTEMS, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-01710
`Patent 7,224,668 B1
`____________
`
`Before BRYAN F. MOORE, MATTHEW R. CLEMENTS, and
`PETER P. CHEN, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 325(d); 37 C.F.R. § 42.108
`
`I. INTRODUCTION
`Petitioner, Arista Networks, Inc., filed a Petition for inter partes
`review of claims 1–10, 12, 13, 15–28, 30, 31, 33–43, 45–49, 51–64, 66, 67,
`and 69–72 of U.S. Patent No. 7,224,668 B1 (Ex. 1101, “the ’668 patent”).
`Paper 2 (“Pet.”). Patent Owner, Cisco Systems, Inc., filed a Preliminary
`
`
`
`IPR2015-01710
`Patent 7,224,668 B1
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`Response. Paper 6 (“Prelim. Resp.”). Institution of an inter partes review is
`authorized by statute when “the information presented in the petition . . . and
`any response . . . shows that there is a reasonable likelihood that the
`petitioner would prevail with respect to at least 1 of the claims challenged in
`the petition.” 35 U.S.C. § 314(a); see 37 C.F.R. § 42.108. Upon
`consideration of the Petition and the specific facts of this case, we exercise
`our discretion to deny review under 35 U.S.C. § 325(d).
`
`A. Related Matters
`The parties state that the ’668 patent is the subject of Cisco Systems,
`Inc. v. Arista Networks, Inc., No. 4:14-cv-05343-JSW (N.D. Cal.), filed
`December 5, 2014, and ITC Inv. No. 337-TA-945 (Network Devices,
`Related Software and Components Thereof (II)), filed December 19, 2014.
`Pet. 1; Paper 5 (Patent Owner’s Mandatory Notice). The ’668 patent is also
`the subject of IPR2015-00974. Petitioner also has filed petitions requesting
`inter partes review of other patents owned by Patent Owner: IPR2015-
`00973 (U.S. Patent No. 6,377,577), IPR2015-00975 (U.S. Patent No.
`8,051,211), IPR2015-00976 (U.S. Patent No. 7,023,853), IPR2015-00978
`(U.S. Patent No. 7,340,597), IPR2015-01049 (U.S. Patent No. 6,377,577),
`IPR2015-01050 (U.S. Patent No. 7,023,853), IPR2016-00018 (U.S. Patent
`No. 8,051,211), IPR2016-00119 (U.S. Patent No. 7,047,526), IPR2016-
`00244 (U.S. Patent No. 7,953,886), IPR2016-00301 (U.S. Patent No.
`6,377,577), IPR2016-00303 (U.S. Patent No. 6,377,577), IPR2016-00304
`(U.S. Patent No. 7,023,853), IPR2016-00306 (U.S. 7,023,853), IPR2016-
`00308 (U.S. Patent No. 7,162,537), and IPR2016-00309 (U.S. Patent No.
`7,224,668).
`
`2
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`IPR2015-01710
`Patent 7,224,668 B1
`
`B. The ’668 Patent
`The ’668 patent relates generally to an internetworking device, such
`as a router, with improved immunity to Denial of Service (“DoS”) attacks.
`Ex. 1101, Abstract. At the time, a router typically separated its functionality
`into a data plane, responsible for accepting transit packets at input ports and
`routing or switching them to output ports, and a control plane, responsible
`for higher layer functions, such as establishing routing tables. Id. at 1:52–
`59. Denial of Service attacks were commonly directed at the control plane.
`Id. at 1:59–67. Attempts to solve such problems were difficult to administer
`and could result in poor performance when control-plane policies were
`applied not only to control plane packets, but also to transit packets. Id. at
`2:24–3:2.
`To address these and other issues, the ’668 patent discloses an
`internetworking device whose control plane processes are collectively
`arranged as a single addressable port such that all packets intended for the
`control plane always pass through this designated port, which thereby
`provides the ability to better manage control plane traffic. Id. at 3:42–50. A
`set of port services unique to the control plane may be applied to the
`aggregate control plane port. Id. at 3:54–56.
`Figure 1 is reproduced below.
`
`3
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`IPR2015-01710
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`
`
`Figure 1 is a block diagram of internetworking device 100, such as a
`router, comprising control plane port 140, which defines a single access path
`between switch engine 130 and control plane 150. Id. at 4:47–67. Line
`cards 110 and central switch engine 130 accept packets received on a given
`port 120 and route them through to another output port 120. Id. at 5:5–7.
`Because all packets destined to control plane 150 pass through central switch
`engine 130 prior to being routed to functions 155, central switch engine 130
`can be used to implement aggregate control plane protection. Id. at 5:36–42.
`Control plane port services determine if a given packet is destined to a
`control plane process 150. Id. at 5:56–58. Control plane port 140 may be a
`single physical port or may be a virtual address, but either way, it can be
`treated as a traditional hardware port to which a full range of traditional port
`control features—e.g., rate limitation, access lists, hierarchical queues based
`
`4
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`IPR2015-01710
`Patent 7,224,668 B1
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`on priority—can be applied to help protect control plane 150 from a DoS
`attack, or to provide other QoS (quality of service). Id. at 5:1–4, 5:66–6:44.
`
`C. Illustrative Claim
`Of the challenged claims, claims 1, 19, 37, and 55 are independent. Claim 1
`is reproduced below:
`1. An internetworking device comprising:
`a. a plurality of physical network interface ports, each for
`providing a physical connection point to a network for the
`internetworking device, the ports being configurable by control
`plane processes;
`b. port services, for operating on packets entering and
`exiting the physical network interface ports, the port services
`providing an ability to control and monitor packet flows, as
`defined by control plane configurations;
`c. a control plane, comprising a plurality of
`internetworking control plane processes, the control plane
`processes for providing high-level control and configuration of
`the ports and the port services;
`d. wherein:
`i. a control plane port entity provides access to the
`collection of control plane processes, so that a set of
`control plane port services can be applied thereto; and
`ii. the control plane port services operate on
`packets received from specific, predetermined physical
`ports and destined to the collection of control plane
`processes in a way that is independent of the physical
`port interfaces and services applied thereto.
`Ex. 1001, 9:17–40.
`D. Asserted Grounds of Unpatentability
`Petitioner contends that claims 1–10, 12, 13, 15–28, 30, 31, 33–43,
`45–49, 51–64, 66, 67, and 69–72 of the ’668 patent are unpatentable based
`on the following specific grounds (Pet. 14–56):
`
`5
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`References
`
`Basis
`
`Frazier1 and Habraken2 35 U.S.C. § 103
`
`Frazier, Habraken, and
`Moberg3
`
`35 U.S.C. § 103
`
`Challenged Claim(s)
`1–6, 8, 9, 10, 12, 13, 15–22,
`24–27, 28, 30, 31, 33–40, 42,
`43, 45–47, 48, 49, 51–58, 60–
`63, 64, 66, 67, and 69–72
`7, 23, 41, and 59
`
`II. DISCUSSION
`
`A. Claim Construction
`In an inter partes review, we construe claim terms in an unexpired
`patent according to their broadest reasonable construction in light of the
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b); see
`also In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1278–79 (Fed. Cir.
`2015), cert. granted sub nom. Cuozzo Speed Techs., LLC v. Lee, 84
`U.S.L.W. 3218 (U.S. Jan. 15, 2016) (No. 15-446). Consistent with the
`broadest reasonable construction, claim terms are presumed to have their
`ordinary and customary meaning as understood by a person of ordinary skill
`in the art in the context of the entire patent disclosure. In re Translogic
`Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). An inventor may provide
`a meaning for a term that is different from its ordinary meaning by defining
`
`
`1 U.S. Patent No. 6,246,680 B1, filed June 30, 1997, issued June 12, 2001
`(Ex. 1104, “Frazier”). We note that the first named inventor on this
`reference is Shimon Muller and the third named inventor is Howard Frazier,
`however, Petitioner referred to this reference as “Frazier” so to avoid
`confusion we will refer to this reference as “Frazier.”
`2 Joe Habraken, PRACTICAL CISCO ROUTERS, Que Corp. (1999) (Ex. 1105
`“Habraken”).
`3 U.S. Patent No. 6,460,146 B1, filed December, 1998, issued October 1,
`2002 (Ex. 1106, “Moberg”).
`
`6
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`IPR2015-01710
`Patent 7,224,668 B1
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`the term in the specification with reasonable clarity, deliberateness, and
`precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`For purposes of this Decision, we determine that we need not
`expressly construe any of the terms for which the parties have proposed
`constructions.
`
`B. Asserted Obviousness over Frazier and Habraken
`All of the currently challenged claims of the ’668 patent were also
`challenged in IPR2015-00974 (“’974 IPR”) in which we did not institute
`inter partes review. In the ’974 IPR, we denied Petitioner’s proposed
`anticipation ground based on Amara4 (with Habraken5 cited to support the
`knowledge of one of ordinary skill). ’974 IPR, Decision on Institution
`(Paper 7, “’974 Dec”), 7–14. In that case, we found that Petitioner had not
`shown sufficiently either that Amara discloses “a plurality of physical
`network interface ports . . . the ports being configurable by control plane
`processes,” or that Amara combined with Habraken provides a person of
`ordinary skill in the art reason to modify Amara’s “internal applications.”
`Id.
`
`The instant Petition advances two obviousness grounds challenging
`the same claims as were challenged in the ’974 IPR, each of which
`essentially seeks to replace Amara with Frazier. Pet. 14, 56. According to
`the Petition, Frazier is proffered because “after the filing of the first petition
`[] Arista became aware of Frazier and appreciated its disclosure, particularly
`with respect to the CPU port” (Pet. 60). The CPU port disclosure of Frazier
`
`
`4 US 6,674,743 B1, issued January 6, 2004. IPR974, Ex. 1004.
`5 IPR974, Ex. 1010. This is the same reference referred to in this case as
`Habraken.
`
`7
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`IPR2015-01710
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`
`is not relied on by Petitioner to show the limitation to “a plurality of physical
`network interface ports . . . the ports being configurable by control plane
`processes.”
`Other than the substitution of Frazier for Amara, the art cited in the
`present Petition’s obviousness grounds overlaps completely with that
`asserted against the claims in the ’974 Petition. Furthermore, certain of
`Petitioner’s assertions regarding the disclosures of Frazier are substantially
`similar to the disclosure of Amara as characterized by Petitioner in the 974
`IPR; in this sense, the arguments made in both cases are substantially
`similar. For example, Petitioner states in this case, with citations to its
`declarant, that
`a POSITA would have been motivated to modify Frazier’s
`device 101 an administrator to issue commands to the CPU
`161 so that the software processes running on CPU 161
`configure the ports coupled to network interface 205. Ex.
`1101, ¶ 80. The capability to disable a certain network
`interface 205 port, for example, would have been beneficial to
`handle a situation in which the link connected to the port
`became unreliable. Id. Further, a POSITA would have
`understood that the software processes running on CPU 161
`would, for example, need to be able to configure whether a
`port operates in 10 Mb Ethernet mode, 100 Mb Ethernet
`mode, or 10/100 Mb Ethernet mode, or whether a port
`operates in half-duplex or full-duplex mode, or whether auto-
`negotiation is enabled. Id. Because routers as of the Critical
`Date operated in these different modes, it was beneficial for
`networking devices to be configurable by the software
`processes running on CPU 161 in the manner described. Id.
`Doing so in Frazier would likewise provide flexibility and
`allow an administrator of Frazier’s device to maintain routing
`on a network by bringing the hardware interfaces to life. Ex.
`1105, pp. 142-43. Part of that configuration would involve
`enabling the interfaces and assigning the addresses to the
`
`8
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`IPR2015-01710
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`
`interfaces, and that information would be stored in the
`configuration of the device as taught by Habraken. Id.
`
`
`Pet. 30–31.
`Compare these statements with the ’974 IPR, where Petitioner states
`through its declarant that
`[, i]n particular, a POSITA would have understood that the
`internal applications 230 would be able to enable or disable any
`given physical interface port, set a protocol for any given
`physical interface port, or set the address of any given physical
`interface port. See, e.g., Habraken, page 132-134. The
`capability to disable a certain physical interface port, for
`example, would have been necessary to handle a situation in
`which the link connected to the port became unreliable.
`Further, a POSITA would have understood that the internal
`applications 230 would, for example, need to be able to
`configure whether a port operates in 10 Mb Ethernet mode, 100
`Mb Ethernet mode, or 10/100 Mb Ethernet mode, or whether a
`port operates in half-duplex or full-duplex mode, or whether
`auto-negotiation is enabled. Because routers as of the Critical
`Date operated in these different modes, it was critical for
`networking devices
`to be configurable by
`the
`internal
`applications in the manner described. Accordingly, a POSITA
`would have understood that Amara describes the interface
`ports 202-208 being configurable by the internal applications
`230 and, when appropriate, the internal applications 230
`configuring the ports 202-206.
`
`
`’974 IPR, Ex. 1002 ¶ 46. The italicized portion from both cases is nearly
`identical with Frazier’s “software processes running on CPU 161” replacing
`Amara’s “internal applications 230.”
`The ground we analyzed in detail in the ’974 IPR was an anticipation
`ground, not obviousness, however, we did analyze therein the combination
`of Habraken and Amara. We found, in the ’974 Decision, “[w]hile this
`
`9
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`IPR2015-01710
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`
`passage [on pages 132 to 134 of Habraken] describes configuring a port, it is
`not clear what aspect of the Cisco router is providing the Setup dialog.
`Nothing, for example, attributes the Setup dialog to “control plane
`processes” or “internal applications” or the like of the Cisco router.” ’974
`Dec. 11.
`Petitioner also presented an obviousness ground based on Amara and
`Habraken, which was not stated with specificity. “The [’974 IPR] Petition,
`therefore, fails to identify with sufficient specificity the differences between
`the claimed invention and the prior art.” ’974 Dec. 17. While the current
`Petition apparently attempts to provide such specificity (See Pet. 28–31),
`Patent Owner, nonetheless, has been forced to address a similar ground with
`similar arguments in two separate Petitions. Prelim Resp. 9, 10; ’974
`Prelim. Resp. 22–25, 49–52; see Biodelivery Sciences International, Inc. v.
`RB Pharmaceuticals Limited, Case IPR2014-00998, slip op. at 7–8 (PTAB
`December 19, 2014) (Paper 12) (determining, in exercising § 325(d)
`discretion with respect to a ground in the second-filed petition that was
`based on a reference not formally included in the ground from the first-filed
`petition and which the prior DI merely acknowledged as a citation in a claim
`chart, that the ground in the second-filed petition presented was “the same
`arguments and relies substantially on the same prior art that the same
`Petitioner relied upon in its earlier Petition regarding the same claims of the
`same patent”). Allowing similar, serial challenges to the same patent, by the
`same petitioner, risks harassment of patent owners and frustration of
`Congress’s intent in enacting the Leahy-Smith America Invents Act. See
`H.R. Rep. No. 112-98, pt.1, at 48 (2011) (“While this amendment is
`intended to remove current disincentives to current administrative processes,
`
`10
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`IPR2015-01710
`Patent 7,224,668 B1
`
`the changes made by it are not to be used as tools for harassment or a means
`to prevent market entry through repeated litigation and administrative
`attacks on the validity of a patent. Doing so would frustrate the purpose of
`the section as providing quick and cost effective alternatives to litigation.”).
`For these reasons, we conclude that the instant Petition advances “the same
`or substantially the same prior art or arguments [that] previously were
`presented to the Office” in the ’974 IPR, and, therefore, we have discretion
`under § 325(d) to deny institution of the obviousness ground based on
`Frazier and Habraken.
`Our discretion to deny these grounds is further guided by additional
`facts. Petitioner does not contend specifically that the newly-cited
`references were not known or available to it at the time it filed the ’974 IPR.
`Rather, Petitioner states only that it “became aware of Frazier and
`appreciated its disclosure” after the filing of the ’974 IPR. See Unilever,
`Inc. v. Procter & Gamble Co., Case IPR2014-00506, slip op. at 6 (PTAB
`July 7, 2014) (Paper 17) (considering, in exercising § 325(d) discretion,
`whether new references were previously known).
`For the reasons above, we, therefore, exercise our discretion under
`§ 325(d) to deny institution of inter partes review on the obviousness
`challenge based on Frazier and Habraken to claims 1–6, 8, 9, 10, 12, 13, 15–
`22, 24–27, 28, 30, 31, 33–40, 42, 43, 45–47, 48, 49, 51–58, 60–63, 64, 66,
`67, and 69–72.
`
`B. Asserted Obviousness over Frazier, Habraken, and Moberg
`Petitioner argues that dependent claims 7, 23, 41, and 59 are
`unpatentable under 35 U.S.C. § 103(a) as obvious over Frazier, Habraken,
`and Moberg. In this ground, Petitioner relies upon its analysis of Frazier and
`
`11
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`IPR2015-01710
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`Habraken with respect to the independent claims from which these claims
`depend, and alleges that the additional reference—Moberg—teaches the
`additional limitation(s) recited in the dependent claims listed above. Pet.
`56–60.
`As discussed above, we exercise our discretion, under § 325(d), to
`find that this Petition presents the same argument as to the disclosure of “a
`plurality of physical network interface ports . . . the ports being configurable
`by control plane processes,” as recited in each of the respective independent
`claims from which these claims depend. Petitioner does not allege that
`Moberg teaches or suggests this limitation. Pet. 56–60. Additionally, in the
`’974 IPR we declined to institute on a ground that dependent claims 7, 23,
`41, and 59 were obvious over Amara, Habraken, and Moberg. ’974 Dec.
`17–18. Because we exercise our discretion not to institute on the underlying
`independent claims and because this ground is substantially similar to a
`ground presented in Petition in the ’974 IPR, we exercise our discretion not
`to institute on these challenged dependent claims.
`
`III. CONCLUSION
`
`For the foregoing reasons, we determine that the Petition presents
`substantially the same art and arguments as the Petition in the ’974 IPR, and,
`taking into account the particular facts of this case, we exercise our
`discretion to deny institution of review under 35 U.S.C. § 325(d).
`
`12
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`IPR2015-01710
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`
`
`IV. ORDER
`
`Accordingly, it is
`ORDERED that that the Petition is DENIED as to all challenged
`claims of the ’668 patent, and no trial is instituted.
`
`
`
`
`
`13
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`IPR2015-01710
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`
`PETITIONER:
`Walter K. Renner
`Kevin E. Greene
`David J. Goren
`FISH & RICHARDSON P.C.
`IPR40963-0006IP2@fr.com
`axf@fr.com
`
`PATENT OWNER:
`Lori A. Gordon
`Robert G. Sterne
`Daniel S. Block
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`lgordon-PTAB@skgf.com
`rsterne-PTAB@skgf.com
`dblock-PTAB@skgf.com
`
`
`14
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