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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`ARISTA NETWORKS, INC.,
`Petitioner,
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`v.
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`CISCO SYSTEMS, INC.,
`Patent Owner.
`
`
`Case IPR2015-01710
`Patent 7,224,668 B1
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`
`PETITIONER’S REQUEST FOR REHEARING
`UNDER 37 C.F.R. § 42.71
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`
`
`
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`Case: IPR2015-01710
`Attorney Docket: 40963-0006IP2
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`Arista Networks, Inc. (“Petitioner” or “Arista”) respectfully requests
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`reconsideration based on the Board’s misapprehension and/or oversight of key
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`facts and misapplication of law in deciding to deny institution under 35 U.S.C.
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`§ 325(d). This Request is timely as filed within 30 days of the Decision Denying
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`Institution. See IPR2015-01710, Paper 7 (Feb. 16, 2016); 37 C.F.R. § 42.71(d)(2).
`
`I.
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`STATEMENT OF MATERIAL FACTS
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`Patent Owner accuses Petitioner of infringing the U.S. Patent No. 7,224,668
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`B1 (the “’668 patent”) in two co-pending litigations, namely Cisco Systems, Inc. v.
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`Arista Networks, Inc., No. 4:14-cv-05343-JSW (N.D. Cal.), filed December 5,
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`2014, and ITC Inv. No. 337-TA-945 (Network Devices, Related Software and
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`Components Thereof (II)), filed December 19, 2014.
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`On April 1, 2015, Petitioner filed a petition requesting inter partes review of
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`the claims 1–10, 12, 13, 15–28, 30, 31, 33–43, 45–49, 51–64, 66, 67, and 69–72 of
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`the ’668 patent, namely IPR2015-00974 (“’974 IPR”). See ’974 IPR, Paper 2.
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`Subsequent to this filing, and prior to the issuance of a decision on institution in
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`the ’974 IPR, Petitioner became aware of another prior art reference material to the
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`validity of the ’668 patent, namely U.S. Patent No. 6,246,680 B1 (Ex. 1104,
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`“Frazier”). See IPR2015-01710, paper 2 at 60 (“’710 Petition”). On August 11,
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`2015, Petitioner filed another petition requesting inter partes review of the ’668
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`patent including the Frazier reference (Case IPR2015-01710 (“’710 IPR”)). See
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`1
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`‘710 IPR, Paper 2.
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`Several months later, on October 6, 2015 the Board denied institution on the
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`’974 Petition. See ’974 IPR, paper 7 (“’974 Decision”). More recently, on
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`February 16, 2016, the Board also denied institution on the ’710 Petition. See ’710
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`IPR, paper 7 (“’710 Decision”). With respect to the ’710 Petition, the Board
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`denied institution under 35 U.S.C. § 325(d), reasoning that: (1) the ’710 Petition
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`“advances the same or substantially the same prior art or arguments that previously
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`were presented to the Office in the ’974 IPR”; and (2) “Petitioner does not contend
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`that the newly-cited references were not known or available to it at the time it filed
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`the ’974 IPR.” Id. at 11.
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`II. LEGAL STANDARDS
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`37 C.F.R. § 42.71(c) allows a party to request a rehearing on a decision by
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`the Board on whether to institute a trial. When considering a motion for rehearing
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`a decision on institution, the Board reviews the decision for an abuse of discretion.
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`Id. An abuse of discretion may be found if a decision is based on an erroneous
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`interpretation of law, if a factual finding is not supported by substantial evidence,
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`or if the decision represents an unreasonable judgment in weighing relevant
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`factors. Star Fruits S.N.C. v. United States, 393 F.3d 1277, 1281 (Fed. Cir. 2005);
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`Arnold P’ship v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004); In re Gartside, 203
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`F.3d 1305, 1315–16 (Fed. Cir. 2000).
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`2
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`As is noted above, at issue in the present request for rehearing is the Board’s
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`reliance on 35 U.S.C. § 325(d) in denying institution. Section 325(d) provides:
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`In determining whether to institute or order a proceeding . . . the
`Director may take into account whether, and reject the petition or
`request because, the same or substantially the same prior art or
`arguments previously were presented to the Office.
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`Notably, this provision does not itself prohibit filing subsequent petitions to
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`challenge a given patent. Indeed, the PTAB routinely has instituted more than a
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`single IPR proceeding for a patent based on serial petitions. For example, U.S.
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`Patent Number 7,237,634 is the subject of thirteen instituted inter partes reviews
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`based, at least in part, on a number of serial petitions filed by the Ford Motor
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`Company (“Ford”). See IPR2014-00904, IPR2014-01416, IPR2015-00606,
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`IPR2015-00722, IPR2015-00758, IPR2015-00784, IPR2015-00785, IPR2015-
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`00787, IPR2015-00790, IPR2015-00791, IPR2015-00799, IPR2015-00800,
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`IPR2015-00801. Similarly, U.S. Patent Number 7,104,347 is the subject of five
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`instituted inter partes reviews based, at least in part, on serial petitions filed by
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`Ford. See IPR2014-00571, IPR2014-00579, IPR2014-00884, IPR2015-00794,
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`IPR2015-00795.
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`III. ARGUMENT
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`The ’710 Decision demonstrates an abuse of discretion in denying institution
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`3
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`on the ’710 Petition. In finding that the ’710 Petition contains art and arguments
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`that are “substantially the same” as those presented in the ’974 Petition, it ignores
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`that the two petitions feature different base references, and that markedly different
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`arguments are presented regarding obviousness. Further, in finding that Petitioner
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`failed to contend that the newly-cited Frazier reference was “not known or
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`available to it” at the time it filed the ’974 Petition, the ’710 Petition applies a test
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`found nowhere in statute or rule while ignoring an express representation to the
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`contrary by Petitioner. Finally, the present case cannot credibly be cast as
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`harassment warranting no consideration on the merits under Section 325(d).
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`A. Only Through Oversight or Misapprehension Could the ’710
`Decision Find that the ’710 Petition Contains Art and Arguments
`That Are Substantially the Same as Those in the ’974 Petition
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`Substantial evidence does not support the ’710 Decision’s finding that the art
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`and arguments presented in the ’710 Petition are substantially the same as those in
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`the ’974 Petition. To the contrary, they are materially different with respect to the
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`primary references and the arguments made for the obviousness combinations.
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`The ’710 Petition is based on a different primary reference
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`1.
`As an initial matter, the primary reference upon which the ’974 Petition
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`relies for the majority of the claim limitations, namely U.S. Patent No. 6,674,743
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`(“Amara”), is wholly absent from the ’710 Petition. Compare ’974 Petition at 3
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`with ’710 Petition at 2-3. Amara is included, alone or in combination with other
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`secondary references, in all invalidity grounds set forth in the ’974 Petition. See id.
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`The ’710 Petition, on the other hand, introduces a new primary reference—the
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`Frazier reference. See id. The Petitions overlap only in that the ’710 Petition uses
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`a subset of the secondary references (namely Habraken and Moberg) included in
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`the ’974 Petition. Compare ’974 Petition at 58-60 (applying combination of
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`Amara with Habraken to the challenged claims) with ’710 Petition at 31-56
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`(applying a combination of Frazier with Habraken to the challenged claims).
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`The ’710 Decision selectively cites to portions of the discussion of reasons
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`to combine Habraken with the base references, and notes that similar arguments
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`are given in each Petition. ’710 Decision at 8-9. Because both base references
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`generally discuss packet forwarding devices, the fact that the rationale for
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`combination of secondary references would be similar is unremarkable. Moreover,
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`this cursory analysis ignores the fact that the actual application of these references
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`to base references for obviousness—which takes up the majority of the Petitions—
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`is distinct in each Petition. Indeed, the portions that the ’710 Decision excerpts
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`account for less than one page out of sixty in each of the two Petitions.
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`Such limited overlap is not a legitimate basis for finding the entirety of the
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`art and arguments presented in each Petition are “substantially the same.” Yet, the
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`’710 Decision fails otherwise to justify its conclusion that the ’710 Petition
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`advances the same or substantially the same prior art or arguments that previously
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`5
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`were presented to the Office in the ’974 Petition. The ’710 Decision’s finding,
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`therefore, effectively bars the use of secondary references cited in prior filed
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`petitions in subsequent petitions, despite the PTAB’s established track record
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`allowing use of such references. See IPR2015-00778, paper 17 at 26-27 (“The fact
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`that there is overlap in some respect does not mean the prior art as a whole or the
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`arguments as a whole are the same or substantially the same.”); see also IPR2015-
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`00799, paper 11 at 6-8 (instituting despite overlapping art with earlier petition);
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`IPR2015-00792, paper 13 at 17 (same); IPR2015-00615, paper 9 at 24-25 (same);
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`IPR2015-00057, paper 10 at 20-22 (same); IPR2014-01208, paper 13 at 12-15
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`(same). By imposing such a bar here, the ’710 Decision is arbitrary and capricious
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`and therefore an abuse of discretion.
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`2.
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`The ’710 Petition presents significantly different arguments
`in making obviousness combinations
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`In the ’974 Decision, the Board denied institution in part on the finding that
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`the ’974 Petition “does not identify with specific particularity the ground on which
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`the challenge to the independent claims is based.” ’974 Decision at 15-16. The
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`Board took issue with the ’974 Petition’s identifying three limitations of claim 1
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`that could be met by either or both of the Amara or Habraken prior art references:
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`As described above with respect to Ground 1A, Amara describes (1)
`the internal applications configuring the interface ports 202-06, (2) the
`internal applications configuring policies applied by the policy
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`6
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`engines 224-28, and (3) the addresses of the device being specified in
`the configuration of the device 200. Supra, [1.1], [1.2], [3.0].
`However, even if one were to conclude that this is not the case, it
`would have been obvious in view of Habraken to modify Amara’s
`device to include any or all of (1), (2), and (3).
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`’974 Decision at 16 (citing ’974 Petition at 58) (emphasis in ’974 Decision). The
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`Board similarly criticized the ’974 Petition’s treatment of claims 37 and 55, where
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`another limitation was identified as being met by either or both of Amara or
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`Habraken. See ’974 Decision at 16. Ultimately, the Board found that the ’974
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`Petition lacked sufficient specificity because it did not state “which of the different
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`combinations is relied upon” to support a finding of obviousness. Id. at 17.
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`In contradistinction, the ’710 Petition contains no such arguments premised
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`on multiple, alternative combinations of Amara and Habraken. Instead, in
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`addressing the same limitations, the ’710 Petition argues that it would have been
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`obvious to modify the Frazier reference in view of Habraken.
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`A POSITA would have further modified Frazier’s device 101 in view
`of Habraken to have the CPS 160, and in particular the software
`processes running on CPU 161, configure the ports coupled to
`network interface 205 and to have the addresses of the device be
`specified in the configuration of the device 101.
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`’710 Petition at 28. See also id. at 29-31 (providing reasons for combining Frazier
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`and Habraken). As such, the arguments that the ’710 Petition advances as to the
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`obviousness of these limitations differ from those that the ’974 Petition made—
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`both in the identity of art relied upon in the combination and in the number of
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`combinations presented.
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`Indeed, the ’710 Decision recognizes the distinction, noting that the “current
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`[’710] Petition apparently attempts to provide [the] specificity” the Board found
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`lacking in the ’974 Petition. ’710 Decision at 10. Clearly, Petitioner presented
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`significantly different arguments in the ’710 Petition than in the ’974 Petition.
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`Therefore, substantial evidence does not support the Decision’s contrary finding.
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`3.
`The ’710 Decision relies on inapposite precedent
`Biodelivery Sciences International, Inc. v. RB Pharmaceuticals Limited,
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`Case IPR2014-00998, Paper 12 (“Biodelivery Sciences”), does not support the ’710
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`Decision’s denying institution under Section 325(d). The facts of that case are
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`readily distinguishable. In Biodelivery Sciences, the Board denied institution on a
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`second-filed petition, which the petitioner alleged contained two references that the
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`first-filed petition did not cite. See id. at 7. Importantly, the first petition actually
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`discussed one of the allegedly new references (a “EMEA Study Report”), and the
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`Board’s decision to institute the first petition also cited this reference. Id. The
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`second allegedly new reference (the “’883 Application”) was also implicated in the
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`first petition because it was related to a patent that the first petition cited “for the
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`8
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`same relevant disclosure.” Id. at 8. No such considerations exist here—the Frazier
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`reference of the ’710 Petition is completely absent from the ’974 Petition.
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`B. Only Through Oversight or Misapprehension Could the ’710
`Decision Impose an Improper Legal Test and Make Unsupported
`Findings Relating to Petitioner’s Knowledge of the Frazier
`Reference
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`In declining to institute proceedings, the ’710 Decision also relies on the
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`Petitioner’s alleged failure to “contend specifically that the newly-cited references
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`were not known or available to it at the time it filed the ’974 IPR.” ’710 Decision
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`at 11. In doing so, the Board abused its discretion by applying an improper,
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`arbitrary (and practically unworkable) legal standard and making findings of fact
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`that are not supported by substantial evidence.
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`As an initial matter, nothing in Section 325(d) or any other applicable rule or
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`statute, requires Petitioner to show that the newly-cited Frazier reference was
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`unknown or unavailable to it at the time of filing the ’710 Petition. Such a
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`requirement invokes estoppel principles that do not apply here. Specifically,
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`Section 315(e)(1) governs the estoppel effect of a ground of invalidity, and bars a
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`petitioner from requesting a proceeding before the Office on any ground that was
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`raised or “reasonably could have been raised” in a previous proceeding. 35 U.S.C.
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`§ 315(e)(1). Importantly, this bar arises only after a final written decision in the
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`inter partes review. Id. Absent a final written decision, neither Section 315(e)(1)
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`nor Section 325(d) permits the Board to effectively estop a Petitioner from using
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`newly-cited references because they “could have been raised” before.
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`Yet, the ’710 Decision effectively broadens and extends estoppel to any
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`reference that was “known or available” to a petitioner at the time of a first-filed
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`petition—a result that is not only inconsistent with the narrower application of
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`estoppel in Section 315(e)(1), but also arbitrary in its application because there is
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`no guidance in applicable statutes or rules as to what is meant by this “known or
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`available” standard and how a petitioner can make a showing that a newly-cited
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`reference was not “known or available” to it at the time of filing an initial petition.
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`Indeed, the Board has, on numerous occasions, instituted subsequently filed
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`petitions for inter partes review without requiring the petitioner to make such a
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`showing. See IPR2015-00615, paper 9 at 24 (instituting despite “references that
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`were available to Petitioner at the time of filing” an earlier filed petition);
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`IPR2015-00778, paper 17 at 27 (noting “Petitioner has not indicated that the prior
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`art references applied in this proceeding were unavailable to the Petitioner at the
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`time Petitioner filed its first Petition” but instituting anyway).
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`Further, in addition to misapplying the law, the ’710 Decision ignores record
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`evidence contrary to its finding. Even if the statute or regulations allowed the
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`Board to require a reference in a subsequent petition to be unknown and
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`unavailable to the Petitioner at the time of its first petition, Petitioner made clear in
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`10
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`the ’710 Petition that “it was after the filing of the first petition that Arista became
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`aware of Frazier . . . .” ’710 Petition at 60. This statement is an unambiguous
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`confirmation that the Frazier reference was not known to Arista at the time it filed
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`the ’974 IPR. This representation also distinguishes the present case from the
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`Unilever decision the ’710 Decision cites as supporting its reasoning in this regard,
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`as no such affirmation was included in the petition in that case. See, generally,
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`Unilever, Inc. v. Procter & Gamble Co., Case IPR2014-00506, Paper 2 (petition
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`discussed in Unilever decision).
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`The ’710 Decision fails to demonstrate that Petitioner was aware of the
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`teachings of Frazier before Petitioner filed the ’974 Petition. Compare Biodelivery
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`Sciences at 7-8 (detailing where references alleged not to have been cited in an
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`earlier filed IPR were mentioned in, or were cited by prior art included in, an
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`earlier filed petition). Rather, the record contains only Petitioner’s overt
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`representation to the contrary. As a result, substantial evidence does not support
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`the ’710 Decision’s finding that Petitioner somehow failed to confirm that the
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`Frazier reference was not known to it when it filed the ’974 Petition.
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`To the extent the ’710 Decision is applying its stated standard as requiring
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`Petitioner not only to represent that it did not know of the newly-cited prior art but
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`also to demonstrate that the newly-cited reference was somehow “unavailable” to it
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`at the time the prior petition was filed, the Decision adopts an arbitrary standard
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`that cannot be met in practice. The only art that a petition may apply in inter
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`partes review are patents and printed publications. See 35 U.S.C. § 311(b). As
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`these materials are publicly disseminated, arguably any and all prior art a petitioner
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`could apply in an inter partes review is technically “available” to it at the time it
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`files a petition (namely via prior art searches through patents and publications). As
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`such, any subsequently filed petition could be arbitrarily rejected on this ground.
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`Such a rule would be particularly unjust here where the ’668 patent is
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`asserted against Petitioner in a Section 337 Investigation before the International
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`Trade Commission. Requiring a petitioner involved in co-pending litigation to cite
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`any and all art possibly “available” to it at the time of its initial petition would
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`counsel towards waiting until the last permissible date to file the petition so as to
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`ensure that all prior art discovered in the litigation could be included. Such an
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`approach would be inconsistent with the intent of the inter partes review
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`proceeding (namely, providing an inexpensive and faster alternative to litigation),1
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`1 See H.R. REP. No. 112-98, pt. 1, at 40 (2011) (“The legislation is designed to
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`establish a more efficient and streamlined patent system that will improve patent
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`quality and limit unnecessary and counterproductive litigation costs.”); see also
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`Changes to Implement Inter Partes Review Proceedings, Post-Grant Review
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`because it would encourage delay in seeking IPR.
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`C. Arista’s Petitions for IPR for the ’668 Patent Cannot Be Credibly
`Cast as Harassment
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`The ’710 Decision further attempts to support the denial under Section
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`325(d) on policy grounds, stating “[a]llowing similar, serial challenges to the same
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`patent, by the same petitioner, risks harassment of patent owners and frustration of
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`Congress’s intent in enacting the Leahy-Smith America Invents Act.” ’710
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`Decision at 10. Although Congress raised concerns about potential harassment of
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`patent owners when it passed the AIA, the ’710 Decision notably does not find that
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`harassment is present here, nor would a finding of harassment be supported by the
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`facts of this case. As such, reliance by the Board on harassment could arise only
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`through oversight or misapprehension, and thus, an abuse of discretion.
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`As an initial matter, the ’710 Petition was Petitioner’s second petition as to
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`the ’668 patent. To the extent that the ’710 Decision suggests that the
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`circumstances here qualify as an improper “serial challenge,” it essentially imposes
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`a limit of only one petition per patent contrary to Congressional intent and Board
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`practice. Congress could have adopted such a rigid, one petition per patent rule
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`Proceedings, and Transitional Program for Covered Business Method Patents, 77
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`Fed. Reg. 48680-01 (same).
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`when enacting the AIA to protect against abuse, but did not. Instead, Congress
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`adopted other protections “sought by inventors and patent owners” to prevent inter
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`partes review from being used for harassment, including imposing “estoppel
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`against relitigating in court those issues that an inter partes challenger reasonably
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`could have raised in his administrative challenge,” imposing “time limits on
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`starting an inter partes [] review when litigation is pending,” and imposing a one-
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`year time limit on the duration” of the proceeding. 157 Cong. Rec. S1326 (daily
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`ed. Mar. 7, 2011) (statement of Sen. Sessions).
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`Although Congress imposed a further safeguard against abuse through
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`Section 325(d), this provision does not empower the Board to arbitrarily dismiss all
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`subsequently filed petitions. Relying on Section 325(d) to deny a subsequent
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`petition in a case such as this one, when the subsequent petition contains a newly-
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`cited base reference, and no IPR has been instituted, suggests that no subsequent
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`petition could ever institute.
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`Further, it is hard to imagine how Cisco can be deemed harassed, or even
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`inconvenienced, by the ’710 Petition given that the ’974 Petition was not instituted.
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`Compare Biodelivery Sciences at 6, 9 (denying institution on a second filed
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`petition where the first filed petition was instituted). This situation is not one
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`where the Patent Owner may have to defend a second inter partes review on a
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`patent already undergoing inter partes review. The sum total of Patent Owner’s
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`efforts with respect to ’974 and ’710 Petitions were the filing of two Preliminary
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`Patent Owner’s Responses, undertakings that are not even required. See 37 CFR §
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`42.107(a) (“The patent owner may file a preliminary response to the petition.”
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`(emphasis added)). If giving a Patent Owner the opportunity to file a second
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`Patent Owner’s Response on a patent is grounds for exercising discretion not to
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`institute under Section 325(d), then the Board may arbitrarily dismiss all
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`subsequently-filed petitions on this ground. Yet, it has not historically denied all
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`such subsequently-filed petitions, as noted above.
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`Moreover, to the extent that the ’710 Decision faults Petitioner for
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`addressing perceived deficiencies in the first-filed petition, see ’710 Petition at 10,
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`such activity should not be punished, especially where no IPR has been instituted.
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`To the contrary, allowing a petitioner to address any deficiencies in an earlier
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`petition furthers Congress’s purpose of making inter partes review a speedy and
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`inexpensive way to address invalidity challenges.
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`IV. CONCLUSION
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`For the foregoing reasons, Petitioner respectfully requests that the Board
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`withdraw the denial of the ’710 Petition under 35 U.S.C. § 325(d), consider the
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`prior art and arguments set forth in the ’710 Petition on the merits under 35 U.S.C.
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`§ 314(a), and authorize inter partes review of claims 1–10, 12, 13, 15–28, 30, 31,
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`33–43, 45–49, 51–64, 66, 67, and 69–72 of the ’668 patent.
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`Dated: March 17, 2016
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`Respectfully submitted,
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` /Kevin E. Greene/
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`W. Karl Renner, Reg. No. 41,265
`Kevin E. Greene, Reg. No. 46,031
`Fish & Richardson P.C.
`P.O. Box 1022
`Minneapolis, MN 55440-1022
`T: 202-783-5070
`F: 202-783-2331
`Attorneys for Petitioner
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 CFR § 42.6(e)(1), the undersigned certifies that on March 17,
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`2016, a complete and entire copy of this Request for Rehearing was provided via
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`email to the Patent Owner by serving the correspondence addresses of record as
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`follows:
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`Lori A. Gordon
`Robert Greene Sterne
`Daniel S. Block
`Sterne, Kessler, Goldstein & Fox P.L.L.C.
`1100 New York Avenue, N.W.
`Washington, DC 20005
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`Email: lgordon-PTAB@skgf.com
`Email: rsterne-PTAB@skgf.com
`Email: dblock-PTAB@skgf.com
`Email: ptab@skgf.com
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`/Edward G. Faeth/
`Edward G. Faeth
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`(202) 626-6420