Trials@uspto.gov Paper 10
`571-272-7822 Entered: March 31, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ACTIVISION BLIZZARD, INC.,
`ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC., and
`ROCKSTAR GAMES, INC.,
`Petitioner,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01964
`Patent 6,829,634 B1
`____________
`
`
`
`Before SALLY C. MEDLEY, LYNNE E. PETTIGREW, and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`PETTIGREW, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571-272-7822 Entered: March 31, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ACTIVISION BLIZZARD, INC.,
`ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC., and
`ROCKSTAR GAMES, INC.,
`Petitioner,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01964
`Patent 6,829,634 B1
`____________
`
`
`
`Before SALLY C. MEDLEY, LYNNE E. PETTIGREW, and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`PETTIGREW, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
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`IPR2015-01964
`Patent 6,829,634 B1
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`I. INTRODUCTION
`Activision Blizzard, Inc., Electronic Arts Inc., Take-Two Interactive
`Software, Inc., 2K Sports, Inc., and Rockstar Games, Inc. (collectively,
`“Petitioner”) filed a Petition for inter partes review of claims 1–18 of U.S.
`Patent No. 6,829,634 B1 (Ex. 1001, “the ’634 patent”). Paper 2 (“Pet.”).
`Acceleration Bay, LLC (“Patent Owner”) filed a Corrected Preliminary
`Response. Paper 7 (“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 Preliminary Response, we conclude the
`information presented shows there is a reasonable likelihood that Petitioner
`would prevail in establishing the unpatentability of claims 1–18 of the
`’634 patent.
`
`A. Related Matters
`Petitioner and Patent Owner identify the following pending judicial
`matters as relating to the ’634 patent: Acceleration Bay LLC v. Activision
`Blizzard, Inc., Case No. 1:15-cv-00228-RGA (D. Del., filed Mar. 11, 2015);
`Acceleration Bay LLC v. Electronic Arts Inc., Case No. 1:15-cv-00282-RGA
`(D. Del., filed Mar. 30, 2015); and Acceleration Bay LLC v. Take-Two
`Interactive Software, Inc., Case No. 1:15-cv-00311-RGA (D. Del., filed
`Apr. 13, 2015). Pet. 4; Paper 4, 1.
`Petitioner and Patent Owner also identify five other petitions for inter
`partes review filed by Petitioner challenging the ’634 patent and similar
`patents:
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`IPR2015-01951
`IPR2015-01953
`IPR2015-01970
`IPR2015-01972
`IPR2015-01996
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`Pet. 4; Paper 4, 1.
`
`U.S. Patent No. 6,714,966 B1
`
`U.S. Patent No. 6,701,344 B1
`U.S. Patent No. 6,829,634 B1
`
`B. The ’634 Patent
`The ’634 patent relates to a “broadcast technique in which a broadcast
`channel overlays a point-to-point communications network.” Ex. 1001,
`4:29–30. The broadcast technique overlays the underlying network system
`with a graph of point-to-point connections between host computers or nodes
`through which the broadcast channel is implemented. Id. at 4:49–52.
`Figure 1 of the ’634 patent is reproduced below:
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`Figure 1 illustrates a broadcast channel represented by a “4-regular,
`4-connected” graph. Id. at 5:7–8. The graph of Figure 1 is “4-regular”
`because each node is connected to exactly four other nodes (e.g., node A is
`connected to nodes E, F, G, and H). Id. at 4:64–65, 5:8–12. A node in a
`4-regular graph can only be disconnected if all four of the connections to its
`neighbors fail. Id. at 4:65–5:1. Moreover, the graph of Figure 1 is
`“4-connected” because it would take the failure of four nodes to divide the
`graph into two separate sub-graphs (i.e., two broadcast channels). Id. at 5:1–
`5.
`
`To broadcast a message over the network, an originating computer
`sends the message to each of its four neighbors using the point-to-point
`connections. Id. at 4:56–58. Each computer that receives the message sends
`the message to its other neighbors, such that the message is propagated to
`each computer in the network. Id. at 4:58–60. Each computer, however,
`only sends to its neighbors the first copy of the message that it receives and
`disregards subsequently received copies. Id. at 7:66–8:2. Each computer
`that originates messages numbers its own messages sequentially so that each
`computer that receives the messages out of order can queue the messages
`until it receives the earlier ordered messages. Id. at 2:52–53, 8:17–21, 30–
`35.
`
`C. Illustrative Claims
`Petitioner challenges claims 1–18 of the ’634 patent. Claims 1 and 10
`are independent and are illustrative of the claimed subject matter:
`1. A non-routing table based computer network having a
`plurality of participants, each participant having connections to
`at least three neighbor participants, wherein an originating
`participant sends data to the other participants by sending the
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`data through each of its connections to its neighbor participants,
`wherein each participant sends data that it receives from a
`neighbor participant to its other neighbor participants, wherein
`data is numbered sequentially so that data received out of order
`can be queued and rearranged, further wherein the network is
`m-regular and m-connected, where m is the number of neighbor
`participants of each participant, and further wherein the number
`of participants is at least two greater than m thus resulting in a
`non-complete graph.
`10. A non-routing table based broadcast channel for
`participants, comprising:
`a communications network that provides peer-to-peer
`communications between the participants connected to the
`broadcast channel; and
`for each participant connected to the broadcast channel, an
`indication of four neighbor participants of that participant; and
`a broadcast component that receives data from a neighbor
`participant using the communications network and that sends the
`received data to its other neighbor participants to effect the
`broadcasting of the data to each participant of the . . . broadcast
`channel, wherein the network is m-regular and m-connected,
`where m is the number of neighbor participants of each
`participant, and further wherein the number of participants is at
`least two greater than m thus resulting in a non-complete graph.
`
`Id. at 29:12–25, 29:43–60.
`
`D. Asserted Grounds of Unpatentability
`Petitioner asserts that claims 1–18 are unpatentable based on the
`following grounds (Pet. 6):
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`Reference(s)
`DirectPlay1 and Lin2
`Lin
`Lin3
`
`Basis
`§ 103(a)
`§ 102(a)
`§ 103(a)
`
`Challenged Claims
`1–18
`10, 11, 15, and 18
`1–18
`
`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).
`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).
`
`1. “m-regular”
`Petitioner proposes the term “m-regular,” recited in at least
`independent claims 1 and 10, means “each node is connected to exactly m
`
`
`1 Bradley Bargen & Peter Donnelly, Inside DirectX®: In-Depth Techniques
`for Developing High-Performance Multimedia Applications (1998)
`(Ex. 1003) (“DirectPlay”).
`2 Meng-Jang Lin, et al., Gossip versus Deterministic Flooding: Low
`Message Overhead and High Reliability for Broadcasting on Small
`Networks, Technical Report No. CS1999-0637 (Univ. of Cal. San Diego,
`1999) (Ex. 1004 (Exhibit B)) (“Lin”).
`3 Petitioner articulates this ground as obviousness “in view of Lin and the
`knowledge of a POSITA.” Pet. 6. Because obviousness is determined from
`the perspective of a person of ordinary skill in the art, we refer to this ground
`simply as obviousness over Lin.
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`other nodes.” Pet. 13 (citing Ex. 1001, 4:64–65, 15:32–41). Patent Owner
`does not offer a construction of this term. Prelim. Resp. 13. For purposes of
`this Decision, we agree Petitioner’s proposed construction accords with the
`broadest reasonable construction consistent with the Specification, which,
`for example, describes a graph in which each node is connected to four other
`nodes as a 4-regular graph. Ex. 1001, 4:64–65.
`
`2. “non-complete graph”
`Petitioner proposes the term “non-complete graph,” recited in at least
`independent claims 1 and 10, be construed as a “graph in which at least two
`nodes are not connected to each other,” and cites the claims themselves as
`support. Pet. 13 (citing Ex. 1001, 29:23–25, 29:58–60). However, we
`observe that the claims define what a non-complete graph is. For example,
`in claim 1, a non-complete graph results when each participant is connected
`to m neighbor participants, “and further wherein the number of participants
`is at least two greater than m thus resulting in a non-complete graph.”
`Ex. 1001, 29:23–25. Patent Owner does not offer a construction of this
`term. Prelim. Resp. 13. For purposes of this Decision, we are not persuaded
`the term “non-complete graph” requires any further definition beyond what
`is in the claims.
`
`3. “m-connected”
`Petitioner proposes the term “m-connected,” recited in at least
`independent claims 1 and 10, means “dividing the network into two or more
`separate parts would require the removal of at least m nodes.” Pet. 13 (citing
`Ex. 1001, 5:1–5). Patent Owner does not offer a construction of this term.
`Prelim. Resp. 13. The portion of the Specification cited by Petitioner
`describes the 4-connected graph as having the property that it would take the
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`failure of at least 4 nodes to divide the graph into disjoint subgraphs.
`Ex. 1001, 5:1–5. Consequently, we agree for purposes of this Decision that
`Petitioner’s proposed construction accords with the broadest reasonable
`construction consistent with the Specification.
`
`B. Asserted Anticipation by Lin
`
`Petitioner contends claims 10, 11, 15, and 18 are anticipated by Lin.
`Pet. 17–20, 41–51, 53–56. Relying on the testimony of Dr. David R.
`Karger, Petitioner provides analysis and claim charts showing how Lin
`allegedly discloses all of the limitations of claims 10, 11, 15, and 18. Id.
`(citing Ex. 1019).4 Patent Owner counters that Lin is not prior art, Prelim.
`Resp. 14–20, and that Lin does not anticipate the challenged claims,
`id. at 36–39. We begin our discussion with a brief summary of Lin and then
`address the parties’ contentions.
`
`1. Summary of Lin
`Lin describes broadcasting messages to all of the processors in a
`computer network. Ex. 1004, 8.5 Specifically, Lin discloses a protocol that
`superimposes a communications graph on top of the processors in the
`network. Id. at 9. Figure 2 of Lin is reproduced below:
`
`4 Patent Owner argues Petitioner improperly incorporates Dr. Karger’s
`declaration by reference and contends we should deny trial on that basis.
`Prelim. Resp. 34–36 (citing 37 C.F.R. § 42.24(a)(1)(i)). However, contrary
`to Patent Owner’s argument, we do not find it necessary to “sift through
`over 150 pages of Dr. Karger’s declaration to locate the specific arguments
`corresponding to the numerous paragraphs cited to support [Petitioner’s]
`assertions.” Id. at 35. Accordingly, we decline to deny institution of an
`inter partes review on this basis.
`5 We refer to the exhibit pagination. The Lin reference starts on page 8 of
`Exhibit 1004.
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`Figure 2 depicts Harary graphs Hn,t containing n nodes and t
`connections. Ex. 1004, 14. Using Lin’s “simple broadcast protocol,” one
`processor or node initiates the broadcast of a message by sending it to all of
`its neighbors, i.e., those nodes that share a link between them. Id. at 9. A
`node that receives the message for the first time sends the message to all of
`its neighbors except the neighbor that forwarded the message. Id. This
`technique is called “flooding.” Id. The disclosure in Lin compares flooding
`with another broadcast protocol called gossiping. Id. Lin explains that
`flooding over a Harary graph provides most of the attractions of the gossip
`protocol, such as scalability, adaptability, and reliability, but with a
`substantially lower message overhead. Id. at 27.
`
`2. Analysis
`As a threshold matter, we address Patent Owner’s contention that Lin
`is not prior art. Prelim. Resp. 14–20. Patent Owner acknowledges
`Petitioner’s declaration of Glenn Little, who identifies November 23, 1999,
`as the publication date for Lin. Id. at 15–16; see also Ex. 1004, 1–3
`(testifying to the public availability of Lin at the University of California,
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`San Diego, CSE Technical Reports Library no later than November 23,
`1999). For purposes of this Decision, we agree the foregoing evidence
`establishes Lin as § 102(a) prior art as of November 23, 1999. At this
`juncture, Patent Owner does not dispute this, but contends that an
`embodiment of the claimed invention, Small-World Wide Area Networking
`(“SWAN”), was actually reduced to practice as of September 16, 1999—the
`date SWAN was tested and fulfilled its intended use—and November 11,
`1999––the date SWAN was put to use at Boeing. Prelim. Resp. 16–18. In
`support, Patent Owner directs us to Exhibit 2001, a Boeing Invention
`Disclosure form, provided by the named inventors of the ’634 patent, Fred
`Holt and Virgil Bourassa. Id. at 17. In addition, Patent Owner directs us to
`a page from Exhibit 2001 that purportedly is an actual SWAN screen shot
`depicting an exemplary computer network topology, “which maps to the
`’634 patent claims.” Id. at 18. Based on Exhibit 2001, Patent Owner argues
`Boeing’s actual reduction to practice antedates Lin’s earliest prior art date.
`Id. at 20.
`We have reviewed Exhibit 2001 and, on this record, determine that it
`is insufficient evidence of actual reduction to practice of an embodiment of
`the claimed invention prior to November 23, 1999. Among other things, we
`note the page containing the SWAN screen shot purportedly demonstrating a
`computer topology in accordance with the claimed invention is dated
`December 23, 1999, which is after the proffered public availability date of
`Lin. Moreover, although Exhibit 2001 does indicate “Date Satisfactorily
`Tested 9/16/99” and “In Production 11/11/99,” which is consistent with
`Patent Owner’s contentions, there is insufficient evidence linking the
`claimed invention to what was tested and what was put into use on those
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`respective dates. Because the evidence is insufficient at this juncture to
`antedate Lin, we agree Lin is prior art under § 102(a) for purposes of this
`Decision.
`We turn now to Petitioner’s contention that Lin anticipates claims 10,
`11, 15, and 18. Relying on Lin’s disclosures, Petitioner provides a proposed
`mapping of Lin to independent claim 10 of the ’634 patent. Pet. 41–50.6
`For example, Petitioner submits that Lin’s description of a communications
`graph superimposed on top of interconnected computer processors discloses
`the recited “non-routing table based broadcast channel for participants.”
`Pet. 42–43 (citing Ex. 1004, 8–9). Claim 10 also recites “a communications
`network that provides peer-to-peer communications between the participants
`connected to the broadcast channel.” Ex. 1001, 29:45–47. For this
`limitation, Petitioner cites Lin’s networks in which all nodes are identical
`and in which “no processor has a specific role to play.” Pet. 45 (citing
`Ex. 1004, 9; Ex. 1019 ¶ 147).
`Claim 10 further recites “for each participant connected to the
`broadcast channel, an indication of four neighbor participants of that
`participant.” Ex. 1001, 29:48–50. According to Petitioner, Lin’s Harary
`network examples, such as the H22,4 graphs in Figure 4, disclose an
`indication of four neighbors for each participant. Pet. 47 (citing Ex. 1004,
`16, 25; Ex. 1019 ¶ 149; Ex. 1002, 260–62 (prosecution history cited in
`support of Petitioner’s contention that a figure showing a participant
`
`
`6 Petitioner relies on the same claim chart for all of its asserted grounds.
`Petitioner, however, relies solely on Lin’s disclosures for its contention that
`Lin anticipates claims 10, 11, 15, and 18. Pet. 56.
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`connected to neighbor participants discloses an “indication” of neighbor
`participants)).
`Claim 10 also requires that each participant include “a broadcast
`component that receives data from a neighbor participant using the
`communications network and that sends the received data to its other
`neighbor participants to effect the broadcasting of the data to each
`participant of the . . . broadcast channel.” Ex. 1001, 29:51–55. Petitioner
`asserts that Lin’s description of a “simple broadcast protocol,” in which “a
`processor initiate[s] the broadcast of [message] m, by sending m to all of its
`neighbors [and] a node that receives m for the first time sends m to all of its
`neighbors except for the one which forwarded it” discloses this limitation.
`Pet. 49 (quoting Ex. 1004, 9).
`Finally, claim 10 recites that “the network is m-regular and
`m-connected, where m is the number of neighbor participants of each
`participant, and further wherein the number of participants is at least two
`greater than m thus resulting in a non-complete graph.” Ex. 1001, 29:55–60.
`For this limitation, Petitioner relies on two graphs in Lin, the H8,4 graph of
`Figure 2 and the H22,4 graph of Figure 4, which disclose m-regular networks
`in which each participant has exactly 4 neighbor participants, and the
`respective number of participants, 8 and 22, is at least two times greater than
`m, which is 4. Pet. 49–50; see id. at 31–34 (citing Ex. 1004, Figs. 2, 4).
`Claim 11 depends directly from claim 10 and further recites “wherein
`the broadcast component disregards received data that it has already sent to
`its neighbors.” Ex. 1001, 30:1–3. For this limitation, Petitioner relies on
`Lin’s statement that “a node that receives m for the first time sends m to all
`of its neighbors except for the one which forwarded it m.” Ex. 1004, 9
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`(emphasis added); see Pet. 50; Ex. 1019 ¶ 165. Although we agree this
`description suggests a participant would not forward a duplicate message it
`already had received and instead would disregard it, see Pet. 51 (citing
`Ex. 1019 ¶ 165), we are not persuaded Lin necessarily discloses the recited
`limitation, as is required for anticipation. See Bettcher Indus., Inc. v. Bunzl
`USA, Inc., 661 F.3d 629, 639 (Fed. Cir. 2011).
`Claim 15 depends directly from claim 10 and requires each participant
`to be a computer. Petitioner contends Lin discloses this limitation because
`each node in Lin’s graphs is a processor. Pet. 38–39 (citing Ex. 1004, 9).
`Claim 18 also depends directly from claim 10 and requires the participants
`to be peers. As with the “peer-to-peer communications” limitation of
`claim 10, Petitioner cites Lin’s description of networks in which all nodes
`are identical and in which “no processor has a specific role to play.” Pet. 56;
`see id. at 36 (citing Ex. 1004, 9).
`For purposes of this Decision, we are persuaded Petitioner has shown
`sufficiently that Lin discloses the limitations of claims 10, 15, and 18. On
`the present record, we are not persuaded by Patent Owner’s arguments to the
`contrary. Specifically, Patent Owner contends that “Lin would not work to
`implement a real-time, synchronized network where participants are
`immediately updated as to any data broadcast on the network . . . [as]
`contemplated by the ’634 patent.” Prelim. Resp. 36. This argument,
`however, is not commensurate with the scope of the challenged claims,
`which do not require a specific delivery time. Patent Owner’s other
`arguments building on these alleged deficiencies in comparison to the
`purported objectives of the ’634 patent, see id. at 36–39, are not persuasive
`for the same reasons.
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`For the foregoing reasons, we determine the information presented
`demonstrates a reasonable likelihood that Petitioner would prevail in
`establishing that Lin anticipates claims 10, 15, and 18 of the ’634 patent, but
`does not demonstrate a reasonable likelihood that Petitioner would prevail in
`establishing that Lin anticipates claim 11.
`
`C. Asserted Obviousness over Lin
`
`Petitioner contends claims 1–18 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over Lin in view of the knowledge of a person having
`ordinary skill in the art. Pet. 25–59. Relying on the testimony of
`Dr. Karger, Petitioner explains how Lin allegedly teaches or suggests all of
`the claim limitations when considered in view of the knowledge of a person
`having ordinary skill in the art. Id. (citing Ex. 1019).
`
`1. Claims 10–18
`Each of claims 11–18 depends directly from independent claim 10. In
`addition to its contentions regarding anticipation by Lin addressed above,
`Petitioner presents analysis directed to certain limitations of claims 10–18.
`Having reviewed Petitioner’s arguments and evidence, we are persuaded, for
`purposes of this Decision, that Lin in view of the knowledge of a person of
`ordinary skill in the art sufficiently teaches or suggests the limitations of
`these claims. As with Petitioner’s asserted anticipation ground, Patent
`Owner’s contentions regarding non-obviousness of claims 10–18, including
`alleged data delivery times, are not commensurate with the scope of these
`claims. See Prelim. Resp. 36–39.
`With respect to the recitation in claim 10 of “a communications
`network that provides peer-to-peer communications,” Petitioner contends
`that even if Lin does not disclose this limitation expressly or inherently, a
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`person of ordinary skill in the art would have found it obvious to implement
`Lin’s network using peer-to-peer communications. See Pet. 57; Ex. 1019
`¶¶ 195–97. For dependent claim 11, as discussed above, we are persuaded
`Lin’s disclosure that “a node that receives m for the first time sends m to all
`of its neighbors except for the one which forwarded it m” sufficiently
`suggests to a person skilled in the art a broadcast component that “disregards
`received data that it has already sent to its neighbors.” See Pet. 50–51;
`Ex. 1019 ¶ 165.
`Claim 12 recites that a “participant connects to the broadcast channel
`by contacting a participant already connected to the broadcast channel.”
`Ex. 1001, 30:3–6. Claim 13 requires each participant to be a “computer
`process,” and claim 14 requires each participant to be a “computer thread.”
`Id. at 30:7–10. For purposes of this Decision, we are persuaded by
`Petitioner’s contentions that a person of ordinary skill in the art would have
`understood that connecting to Lin’s network would require contacting an
`already connected participant and that Lin’s flooding protocol comprises one
`or more processes executing on a computer, which in turn comprise one or
`more threads. Pet. 58–59 (citing Ex. 1019 ¶¶ 209–10, 212–17).
`Finally, claim 16 requires the communications network to use TCP/IP
`protocol, and claim 17 requires the network to be the Internet. Ex. 1001,
`30:14–18. On the present record, we are persuaded by Petitioner’s
`contention that it would have been obvious to implement the “generic
`networks” disclosed in Lin using the Internet, “the best-known example of a
`computer-based communications network.” Pet. 59 (citing Ex. 1004, 8);
`Ex. 1019 ¶ 220; see also KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 421
`(2007) (“When there is a design need or market pressure to solve a problem
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`and there are a finite number of identified, predictable solutions, a person of
`ordinary skill has good reason to pursue the known options within his or her
`technical grasp.”). Moreover, Petitioner has shown sufficiently that it would
`have been obvious to use TCP/IP because, among other things, Lin discloses
`implementing the network on Ethernet, Ex. 1004, 24–25, and TCP/IP was a
`well-known Ethernet protocol, as well as the prevalent communications
`protocol for the Internet. Pet. 59; Ex. 1019 ¶¶ 201–02, 219.
`For the foregoing reasons, we determine the information presented
`demonstrates a reasonable likelihood that Petitioner would prevail in
`establishing that claims 10–18 would have been obvious over Lin in view of
`the knowledge of a person having ordinary skill in the art.
`
`2. Claims 1–9
`Independent claim 1 is directed to a “non-routing table based
`computer network having a plurality of participants,” which Petitioner
`asserts is taught by Lin’s computer network that uses flooding to propagate
`messages to all of the processors in a network. Pet. 26–27 (citing Ex. 1004,
`8–10, 14). Most of the other limitations of claim 1 are similar to limitations
`of claim 10, and Petitioner contends Lin discloses those limitations for
`substantially the same reasons discussed above with respect to anticipation
`of claim 10 by Lin. See Pet. 26–34, 56.
`The remaining limitation of claim 1 recites that “data is numbered
`sequentially so that data received out of order can be queued and
`rearranged.” Ex. 1001, 29:19–20. Petitioner acknowledges that Lin does
`not disclose this limitation expressly. Pet. 56. Nonetheless, Petitioner cites
`Lin’s disclosure that messages are only flooded by nodes the first time they
`are received, and argues that a person of ordinary skill in the art would have
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`understood that the messages would need some form of identifying
`information by which they could be distinguished. Id. (citing Ex. 1004, 9;
`Ex. 1019 ¶ 192). Petitioner, relying on the testimony of Dr. Karger,
`contends a person of ordinary skill would have found it obvious and routine
`to use sequence numbers for this purpose, as was well known long before
`the filing date of the ’634 patent. Id. (citing Ex. 1019 ¶ 192). Furthermore,
`Petitioner asserts that using sequence numbers so that data received out of
`order can be queued and rearranged also would have been obvious to an
`ordinarily skilled artisan, as sequence numbers had been used at the time of
`the invention for this purpose, including, for example, as part of the TCP/IP
`protocol. See id. at 56–57; Ex. 1019 ¶¶ 49, 192.
`Patent Owner argues that Lin does not contemplate numbering
`broadcast data sequentially, as recited in claim 1, and that Dr. Karger’s
`testimony regarding this limitation is merely conclusory. Prelim. Resp. 6.
`For purposes of this Decision, however, we are persuaded Petitioner and
`Dr. Karger have provided sufficient support for the contention that
`sequentially numbering messages in Lin’s networks would have been
`obvious in view of the knowledge of a person having ordinary skill in the
`art. For example, as discussed above with respect to claim 16, Petitioner has
`made an adequate showing on this record that a person of ordinary skill in
`the art would have implemented Lin’s networks using TCP/IP protocol. See
`Pet. 59; Ex. 1019 ¶¶ 201–02. And Dr. Karger testifies persuasively that
`TCP/IP uses sequence numbers to queue and rearrange the order of
`messages received at a node in a network. Ex. 1019 ¶ 49 (citing Ex. 1012,7
`
`
`7 Dimitri Bertsekas & Robert Gallager, Data Networks (1992).
`
`17
`
`
`
`IPR2015-01964
`Patent 6,829,634 B1
`
`15–16, 20–21). Moreover, Dr. Karger explains that using sequence numbers
`to control flooding in a network, and to reorder messages that arrive out of
`sequence, was well known to a person of ordinary skill in the art before the
`filing date of the ’634 patent. Id. (citing Ex. 1012, 30).
`We also have reviewed Petitioner’s contentions as to claims 2–9, each
`of which depends directly from claim 1, and we are persuaded on this record
`that Petitioner has shown sufficiently that Lin teaches or suggests the
`additional limitations of those claims. For example, Petitioner submits that
`the H8,4 graph of Figure 2 and the H22,4 graph of Figure 4 of Lin teach the
`limitation of claim 2 requiring 4 connections for each participant, and the
`limitation of claim 3 requiring an even number of connections for each
`participant. Pet. 34–35. For claims 4 and 5 (directed to peer-to-peer
`communications), claim 6 (requiring TCP/IP connections), and claim 7
`(requiring each participant to be a process executing on a computer),
`Petitioner presents arguments similar to those addressed above with respect
`to claims 10 and 18 (peer-to-peer), claim 16 (TCP/IP), and claim 13
`(computer process). See Pet. 57–58.
`As to the requirement of claim 8 that a computer host more than one
`participant, we credit Dr. Karger’s testimony that Lin’s disclosure of a
`simulation would have taught or suggested to a person of ordinary skill in
`the art a computer hosting more than one participant. Id.; Ex. 1019 ¶¶ 206–
`08. Claim 9 requires each participant to send only one copy of the data to
`each of its neighbors. As with similar language in claim 11, discussed
`above, we are persuaded Lin’s disclosure that “a node that receives m for the
`first time sends m to all of its neighbors except for the one which forwarded
`it m” sufficiently suggests this limitation. See Pet. 40–41; Ex. 1019 ¶ 137.
`
`18
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`
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`IPR2015-01964
`Patent 6,829,634 B1
`
`Finally, as explained above with respect to the asserted anticipation
`ground and the asserted obviousness of claims 1–9, we are not persuaded by
`Patent Owner’s remaining contentions regarding non-obviousness of
`claims 1–9, including an alleged requirement for real-time message delivery,
`because such arguments are not commensurate with the scope of the
`challenged claims. See Prelim. Resp. 36–39.
`For the foregoing reasons, we determine the information presented
`shows a reasonable likelihood that Petitioner would prevail in establishing
`that claims 1–9 would have been obvious over Lin in view of the knowledge
`of a person having ordinary skill in the art.
`
`D. Asserted Obviousness over DirectPlay and Lin
`
`Petitioner contends claims 1–18 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over the combination of DirectPlay and Lin. Pet. 14–56.
`In light of the grounds on which we have instituted review of the same
`claims, we exercise our discretion and decline to institute an inter partes
`review on this ground. See 35 U.S.C. § 314(a); 37 C.F.R. § 42.108(a).
`
`III. CONCLUSION
`For the foregoing reasons, we determine that the information
`presented establishes a reasonable likelihood that Petitioner would prevail in
`showing that claims 1–18 of the ’634 patent are unpatentable. At this
`preliminary stage, we have not made a final determination with respect to
`the patentability of the challenged claims or any underlying factual and legal
`issues.
`
`19
`
`
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`IPR2015-01964
`Patent 6,829,634 B1
`
`IV. ORDER
`
`Accordingly, it is:
`
`ORDERED that pursuant to 35 U.S.C. § 314(a), an inter partes
`
`review is instituted as to claims 1–18 of the ’634 patent on the following
`grounds:
`(a) Claims 10, 15, and 18 as anticipated under 35 U.S.C. § 102(a) by
`Lin; and
`(b) Claims 1–18 as obvious under 35 U.S.C. § 103(a) over Lin;
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and
`
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial, which
`commences on the entry date of this Decision; and
`FURTHER ORDERED that the trial is limited to the grounds
`identified immediately above, and no other ground is authorized.
`
`
`
`20
`
`
`
`IPR2015-01964
`Patent 6,829,634 B1
`
`
`FOR PETITIONER:
`J. Steven Baughman
`Andrew Thomases
`ROPES & GRAY LLP
`steven.baughman@ropesgray.com
`andrew.thomases@ropesgray.com
`
`
`
`FOR PATENT OWNER:
`James Hannah
`Michael Lee
`Shannon Hedvat
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`jhannah@kramerlevin.com
`mhlee@kramerlevin.com
`shedvat@kramerlevin.com
`
`21
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