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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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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 IPR2016-00309
`Patent 7,224,668
`____________
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`PETITIONER’S OPPOSITION
`TO PATENT OWNER’S MOTION TO STRIKE
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`Attorney Docket: 40963-0006IP3
`IPR2016-00309
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`I.
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`INTRODUCTION
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`Pursuant to Paper No. 40, Petitioner files this Opposition to Patent Owner’s
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`Motion to Strike Petitioner’s Reply (Paper 42). As stated below, Petitioner’s
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`Reply (Paper 34) does not exceed the permissible scope contemplated by 37 C.F.R.
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`§ 42.23(b) and Patent Owner’s Motion to Strike should be denied.
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`II. ARGUMENT
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`The arguments Patent Owner attempts to strike from Petitioner’s Reply were
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`properly raised in rebuttal to arguments made in Patent Owner’s Response (Paper
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`19). Case IPR2014-00153, Paper 18 (entered September 18, 2014) at 2 (“We
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`explained that, generally speaking, as long as the Reply is in response to arguments
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`raised in the Patent Owner’s response, then it is within the proper scope of a Reply.
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`37 C.F.R. § 42.23.”).
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`A.
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`Petitioner’s argument that claimed “port services” are executed
`by Amara’s “packet classifiers” is proper rebuttal.
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`In the Patent Owner’s Response, Patent Owner argues that the “plain
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`meaning” of the last element of the challenged independent claims in this IPR
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`(elements 1.5/19.5/55.5) require applying both port services and control plane port
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`services to control plane packets. POR at 15-18. Petitioner’s Reply properly
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`rebuts this argument by noting that this supposed limitation is not present in these
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`claim elements and that, even if it were, Amara discloses applying port services to
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`incoming control plane packets via its “packet classifiers.” See Reply § II(A).
`1
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`Attorney Docket: 40963-0006IP3
`IPR2016-00309
`No doubt sensing the weakness of its position, Patent Owner now asks the
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`Board to strike the latter point of Petitioner’s rebuttal—arguing that Petitioner
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`should have predicted this tortured reading of the claims and include this argument
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`in the Petition. As fully discussed in Petitioner’s Reply, there is no basis for
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`reading the claims as Patent Owner suggests and, as such, Petitioner did not
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`address this reading in its Petition. The Board has recognized that “where the
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`patent owner response raises an argument that reasonably could not have been
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`anticipated by the petitioner, the petitioner properly may, as a part of its reply, rely
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`on new evidence or cite to different portions of the same prior art reference.” Case
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`IPR2013-00242, Paper 122 (entered April 22, 2014) at 4. Such a case is clearly
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`presented here.
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`Moreover, in the August 23, 2016 deposition of Petitioner’s expert Dr. Bill
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`Lin—more than a month before Patent Owner filed its Response on September 29,
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`2016—Patent Owner was put on notice that Dr. Lin believes Amara discloses
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`applying port services to control plane packets via its packet classifiers. Indeed,
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`Patent Owner dedicated nearly four pages of its Response to addressing the
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`position. POR at 25-28. Patent Owner suggests Dr. Lin’s testimony in this regard
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`was somehow “nonresponsive” or “limited” in nature. Paper 42 (Patent Owner’s
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`Motion to Strike) at 3. To the contrary, Dr. Lin provided comprehensive,
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`responsive answers to questions posed by counsel. See, e.g., Ex. 2005 at 111: 4-10
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`2
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`Attorney Docket: 40963-0006IP3
`IPR2016-00309
`(“Q: Okay. And is it your position that the policy engines 224 through 228 [of
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`Amara] are what applies port services? A. So it’s my opinion that port services
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`includes policies and policy engines. I would just like to note that it could be made
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`bigger to include packet classification, as well, in general.”); see also id. at 94:20-
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`95:3 (noting that claim 17 of the ’668 patent “explicitly includes packet
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`classification as a port service”). To the extent the questioning attorney wished to
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`have more information on the position, she needed only to have asked.
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`Patent Owner suggests it put Petitioner on notice of its reading of the claims
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`as requiring both port services and control plane port services to be applied to
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`control plane packets. In particular, Patent Owner alleges it “discussed this claim
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`element in accordance with its plain and ordinary meaning” in a Patent Owner
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`Preliminary Response (POPR) filed in another case regarding the ’668 patent prior
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`to the filing of the Petition in the instant case. Paper 42 (Patent Owner’s Motion to
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`Strike) at 4. Comparing the POPR in question with the POR in the instant case,
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`however, makes clear no such notice was provided. Indeed, the pages Patent
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`Owner cites as supposedly evidencing notice do not even discuss the claim element
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`for which they are argued to have provided notice. Compare Paper 6, IPR2015-
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`00974, at 25-27 (discussing claim elements 1.2/19.2/37.2/55.2) with POR at 15-18
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`(discussing claim elements 1.5/19.5/55.5).
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`Attorney Docket: 40963-0006IP3
`IPR2016-00309
`In sum, there is no basis for Patent Owner’s allegations that Petitioner
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`should have addressed Patent Owner’s creative reading of claim elements
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`1.5/19.5/55.5 in its Petition, and similarly nothing wrong with Petitioner providing
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`rebuttal regarding the same in its Reply.
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`B.
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`Petitioner’s argument that CoreBuilder discloses “monitoring
`packet flows” is proper rebuttal.
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`In its Patent Owner’s Response, Patent Owner also argues that the
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`combination of Amara and CoreBuilder fails to teach the second limitation of each
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`independent claim (elements 1.2/19.2/55.2) because CoreBuilder does not disclose
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`“port services” for “monitor[ing] packet flows.” POR at 29-30. Petitioner’s Reply
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`properly rebuts this argument by noting that Amara discloses this limitation such
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`that CoreBuilder need not have duplicative disclosure and that, even if there were
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`such a requirement, CoreBuilder does teach monitoring of packet flows. See Reply
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`§ II(B). Once again, Patent Owner asks the Board to strike the latter point of
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`Petitioner’s rebuttal—suggesting that Petitioner should have somehow anticipated
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`and accounted for Patent Owner’s misstatement of the test for obviousness and
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`included this argument in the Petition. As fully discussed in Petitioner’s Reply,
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`there is simply no requirement that CoreBuilder disclose the exact same set of port
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`services as Amara for the combination to teach the claim element as Patent Owner
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`suggests. Accordingly, there is no basis for alleging Petitioner should have
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`addressed this supposed requirement in its Petition. Petitioner instead properly
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`Attorney Docket: 40963-0006IP3
`IPR2016-00309
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`discussed it in the Reply.
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`III. CONCLUSION
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`For the foregoing reasons, Patent Owner’s Motion to Strike Petitioner’s
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`Reply (Paper 42) should be denied.
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`Respectfully submitted,
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`/s/ Lauren A. Degnan
`W. Karl Renner, Reg. No. 41,265
`Lauren A. Degnan, Reg. No. 40,584
`Steven R. Katz, Reg. No. 43,706
`Adam R. Shartzer, Reg. No. 57,264
`Ralph A. Phillips (admitted pro hac vice)
`Attorneys for Petitioner
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`Date: March 3, 2017
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`Customer Number 26171
`Fish & Richardson P.C.
`Telephone: (612) 337-2509
`Facsimile: (612) 288-9696
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`Attorney Docket: 40963-0006IP3
`IPR2016-00309
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 CFR § 42.6(e)(4), the undersigned certifies that on March 3,
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`2017, a complete and entire copy of this Petitioner’s Opposition to Patent Owner’s
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`Motion to Strike was provided via email, to the Patent Owner by serving the email
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`correspondence addresses of record as follows:
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`Lori A. Gordon
`Robert Greene Sterne
`Jon E. Wright
`Daniel S. Block
`Sterne, Kessler, Goldstein & Fox P.L.L.C.
`1100 New York Avenue, NW
`Washington, DC 20005
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`Email: lgordon-PTAB@skgf.com
`Email: rsterne-PTAB@skgf.com
`Email: jwright-PTAB@skgf.com
`Email: dblock-PTAB@skgf.com
`Email: ptab@skgf.com
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`/Edward G. Faeth/
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`Edward G. Faeth
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`(202) 626-6420
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