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
`____________________
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`Case IPR2016-00309
`Patent 7,224,668
`____________________
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`PATENT OWNER PRELIMINARY RESPONSE
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`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`I.
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`II.
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`IPR2016-00309
`U.S. Patent No. 7,224,668
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`Table of Contents
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`Introduction. ..................................................................................................... 1
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`The Board should exercise its discretion and deny institution under § 325(d).
` ......................................................................................................................... 2
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`A.
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`B.
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`C.
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`D.
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`The Board correctly rejected Petitioner’s first and second challenges
`to the ’668 patent. .................................................................................. 5
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`The present Petition presents substantially the same arguments and
`prior art as in the first Petition. .............................................................. 7
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`Petitioner provides no reason to institute using the same art and
`arguments of a previously denied Petition. ........................................... 9
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`The Board should find that the third Petition improperly uses the ’974
`Institution Decision as a roadmap. ......................................................11
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`III. The ’668 patent presents a novel internetworking device that provides
`improved security and Quality of Service (QoS). .........................................13
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`A. Denial of Service (DoS) attacks have been a significant problem for
`networks. .............................................................................................13
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`B.
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`C.
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`Existing approaches to address DoS attacks had serious limitations. .14
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`The novel solution provided by the ’668 patent..................................15
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`IV. Claim construction. ........................................................................................20
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`A.
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`The Board should reject Petitioner’s means-plus-function analysis. ..20
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`1.
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`2.
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`3.
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`“means for configuring a plurality of physical network interface
`ports” (claim 37). ......................................................................22
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`“means for processing packets originating at a plurality of
`physical ports” (claim 38). ........................................................23
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`“means for passing packets through the control plane port,
`rather than directly from the physical ports to individual control
`plane processes” (claim 38). .....................................................23
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`IPR2016-00309
`U.S. Patent No. 7,224,668
`“means for configuring the control plane port services as an
`entity separate from physical port services” (claim 54). ..........24
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`4.
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`V. Ground 1: Petitioner fails to show that claims 1–6, 8, 9, 15–22, 24–27, 33–
`40, 42, 51–58, 60–63, and 69–72 are obvious over Amara and CoreBuilder.
` .......................................................................................................................25
`
`A. Amara’s packet-forwarding device. ....................................................25
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`B.
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`C.
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`CoreBuilder’s Administration Console. ..............................................27
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`Petitioner fails to show that the combination of Amara and
`CoreBuilder teaches or suggests all of the elements of the challenged
`independent claims. .............................................................................28
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`1.
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`2.
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`3.
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`Petitioner fails to show that the combination of Amara and
`CoreBuilder discloses “a plurality of physical network interface
`ports… for providing a physical connection point to a
`network… the ports being configurable by control plane
`processes” (elements 1.1/19.1/37.1/55.1) or “the port services…
`as defined by control plane configurations” (elements
`1.2/19.2/37.2/55.2) . ..................................................................28
`
`Petitioner fails to show that the combination of Amara and
`CoreBuilder teaches or suggests “[executing] port services, []
`on packets entering and exiting the physical network interface
`ports, the port services providing an ability to control and
`monitor packet flows” (elements 1.2/19.2/37.2/55.2). ..............31
`
`Petitioner fails to show that the combination of Amara and
`CoreBuilder teaches or suggests “operat[e][ing] on packets
`received from specific, predetermined physical ports and
`destined to the collection of control plane processes” (elements
`1.5/19.5/37.5/55.5). ...................................................................34
`
`VI. Ground 2: Petitioner fails to show that claims 7, 23, 41, and 59 are obvious
`in view of Amara, CoreBuilder, and Moberg under 35 U.S.C § 103. ...........35
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`A.
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`The invention of Moberg. ....................................................................36
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`B.
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`IPR2016-00309
`U.S. Patent No. 7,224,668
`The combination of Amara, CoreBuilder, and Moberg does not teach
`or suggest distributing control plane processes across multiple
`processors. ...........................................................................................37
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`VII. Ground 3: Petitioner fails to show that claims 10, 12, 13, 28, 30, 31, 43, 48,
`49, 64, 66, and 67 are obvious in view of Amara, CoreBuilder, and
`Subramanian under 35 U.S.C § 103. .............................................................39
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`VIII. Ground 4: Petitioner fails to show that claims 10, 12, 13, 28, 30, 31, 43, 48,
`49, 64, 66, and 67 are obvious in view of Amara, CoreBuilder, and Hendel
`under 35 U.S.C § 103. ...................................................................................39
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`A.
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`B.
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`The Board should reject Ground 4 because this ground is redundant to
`Ground 3. .............................................................................................40
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`Petitioner fails to show that the combination of Amara, CoreBuilder,
`and Hendel discloses applying distributed control plane port services
`only to packets received from specific, pre-determined physical ports.
` .............................................................................................................41
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`IX. Conclusion. ....................................................................................................42
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`IPR2016-00309
`U.S. Patent No. 7,224,668
`
`Table of Authorities
`
`
`Cases
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`Arista Networks, Inc. v. Cisco Systems, Inc.,
`IPR2015-01710, slip op. at 10 (PTAB Feb. 16, 2016) ............................................. 2
`
`Butamax Adv. Biofuels v. GEVO, Inc.,
`IPR2014-00581, 2014 WL 5299385 (PTAB Oct. 14, 2014) ................................... 13
`
`Conopco v. The Procter & Gamble Co.,
`IPR2014-00628, 2014 WL 5388116 (PTAB Oct. 20, 2014) ............................. 10, 11
`
`Conopco v. The Procter & Gamble Co.,
`IPR2014-00628, 2015 WL 1265489 (PTAB Mar. 20, 2015) .............................. 3, 13
`
`HTC Corp. v. NFC Tech., LLC,
`Case IPR2015-00384, 2015 WL 4149068 (PTAB July 6, 2015) ...................... 10, 11
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`Illumina, Inc. v. The Trustees of Columbia University in the City of New York,
`IPR2012-00006 (Paper 43, May 10, 2013) ........................................................ 40–41
`
`Liberty Mutual Ins. Co. v. Progressive Casualty Ins. Co.,
`Case CBM2012-00003, 2012 WL 10911393 (PTAB Oct. 10, 2012) ..................... 40
`
`Medtronic, Inc. v. NuVasive, Inc.,
`IPR2014-00487, 2014 WL 4594734 (PTAB Sept. 11, 2014) ............................ 9, 11
`
`PNC Bank, N.A. v. Secure Axcess, LLC,
`CBM2015-00039, slip op at 17 (PTAB July 10, 2015) ................................ 4, 12, 13
`
`Roche Molecular Systems, Inc. v. Illumina, Inc.,
`IPR2015-01091, slip op. at 15 (PTAB Oct. 30, 2015) ........................................... 11
`
`Samsung Electronics Co. Ltd. et al. v. Rembrandt Wireless Tech., LP,
`IPR2015-00555, Decision Denying Institution (Paper 20, June 19, 2015) ............... 4
`
`Schrader-Bridgeport Int’l, Inc. v. Continental Automotive Sys. US, Inc.,
`IPR2013-00014, 2013 WL 8705607 (PTAB Apr. 10, 2013). ................................. 41
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`IPR2016-00309
`U.S. Patent No. 7,224,668
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`Ultratec, Inc. v. CaptionCall, LLC,
`IPR2013-00288, 2014 WL 2864282 (PTAB Jan. 10, 2014) ................................... 40
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`Vibrant Media, Inc. v. Gen. Elec. Co.,
`IPR2013-00172, 2014 WL 3749773 (PTAB July 28, 2014) ................................... 21
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`ZTE v. Content Guard, Case
`IPR2013-00454, 2013 WL 8595746 (PTAB Sept. 25, 2013) ............................. 5, 13
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`
`
`Statutes
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`35 U.S.C. § 102 ........................................................................................................ 41
`35 U.S.C. § 103 .............................................................................................. 8, 35, 39
`35 U.S.C. § 316 ........................................................................................................ 41
`35 U.S.C. § 325 .................................................................................................passim
`
`
`
`Regulations
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`37 C.F.R. § 42.104 ................................................................................................... 21
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`Other Authority:
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`H.R. Rep. No. 112-98, pt.1 (2011)............................................................................. 2
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`IPR2016-00309
`U.S. Patent No. 7,224,668
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`Exhibit List
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`2002
`
`Exhibit No. Description
`2001
`April 16, 2015 Edelin Letter, 337-TA-944 and 945
`ANI-ITC-994_945-1824690, CoreBuilder Command Reference
`Guide, 337-TA-944 and 945
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`May 12, 2015 Edelin Letter, 337-TA-944 and 945
`ANI-ITC-944_945-3444425, CoreBuilder 9000 Implementation
`Guide, 337-TA-944 and 945
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`2003
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`2004
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`I.
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`IPR2016-00309
`U.S. Patent No. 7,224,668
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`Introduction.
`The Board should reject Petitioner’s latest request for Inter Partes Review
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`under 35 U.S.C. § 325(d). The Board has twice considered and twice rejected
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`substantially the same challenges to the same claims of U.S. Patent No. 7,224,668.
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`Here, Petitioner retreats to its original primary reference, Amara, and replaces its
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`original secondary reference, Habraken, with a different secondary reference,
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`CoreBuilder. Both Habraken and CoreBuilder are router handbooks and are being
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`used by the Petitioner in the same way to present the same argument. Petitioner
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`does not even attempt to justify why it should be allowed to file multiple serial
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`requests relying on substantially similar art and arguments. Petitioner’s silence,
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`particularly as to its knowledge of the newly-presented CoreBuilder reference
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`(despite producing material associated with CoreBuilder routers long ago, in the
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`ITC litigation), weighs heavily in favor of denying this Petition.
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`But should the Board reach the merits, it should deny the Petition because
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`Petitioner does not show a reasonable likelihood of prevailing on its obviousness
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`grounds that the combinations of: (1) Amara and CoreBuilder; (2) Amara,
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`CoreBuilder, and Moberg; (3) Amara, CoreBuilder, and Subramanian; and (4)
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`Amara, CoreBuilder, and Hendel render the claims obvious. Petitioner stretches
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`and contorts these references, in an attempt to read them on the elements, but the
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`references simply do not disclose all of the elements of the challenged claims.
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`IPR2016-00309
`U.S. Patent No. 7,224,668
`II. The Board should exercise its discretion and deny institution under
`§ 325(d).
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`Serial challenges to the same patent by the same challenger—or as part of a
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`coordinated defense strategy, as is the case here—are disfavored because such
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`challenges “risk[] harassment of patent owners and frustration of Congress’s intent
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`in enacting the Leahy-Smith America Invents Act.” Arista Networks, Inc. v. Cisco
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`Systems, Inc., IPR2015-01710, slip op. at 10 (PTAB Feb. 16, 2016) (Paper 7)
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`(“Arista”). The legislative history of the AIA stressed that IPR and CBM
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`proceedings “are not to be used as tools for harassment . . . through repeated
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`litigation and administrative attacks on the validity of a patent. Doing so would
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`frustrate the purpose of the section as providing quick and cost effective
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`alternatives to litigation.” H.R. Rep. No. 112-98, pt.1 at 48 (2011). To guard
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`against these tactics, Congress gave the Board discretion to “reject the petition or
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`request because, the same or substantially the same prior art or arguments
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`previously were presented to the Office.” 35 U.S.C. § 325(d).
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`The Board should exercise its discretion under § 325(d) to deny institution
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`of the present proceeding. This Petition, the third filed by Petitioner against the
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`same claims of the ’668 patent, presents the same arguments previously considered
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`and rejected by the Board. After unsuccessfully asserting the combination of
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`Amara and Habraken in a first Petition (IPR2015-00974), Petitioner filed a second
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`Petition (IPR2015-01710) merely substituting Frazier for its primary reference,
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`IPR2016-00309
`U.S. Patent No. 7,224,668
`Amara. The Board rejected the second challenge, exercising its discretion under 35
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`U.S.C. § 325(d). Now, with the benefit of a Decision Denying Institution and two
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`Patent Owner Preliminary Responses, Petitioner goes back to Amara as the
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`primary reference and this time substitutes a different router handbook
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`(CoreBuilder) for the router handbook used as a secondary reference in the first
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`and second Petitions (Habraken). Petitioner’s argument remains the same, despite
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`the use of different secondary references. The combinations of (a) Amara (Exhibit
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`1004) and CoreBuilder (Exhibit 1009) and (b) Amara, CoreBuilder, and Moberg
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`(Exhibit 1005) are substantially the same as the combinations of (a) Amara and
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`Habraken (’1710 Exhibit 1105) and (b) Amara, Habraken, and Moberg presented
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`in the original unsuccessful Petition, and the combinations of (a) Frazier (’1710
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`Exhibit 1104) and Habraken and (b) Frazier, Habraken, and Moberg presented in
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`the second unsuccessful Petition.
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`Thus, Patent Owner is now, for the third time, forced to address similar
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`grounds presenting the same arguments. (See ’1710 Inst. Dec., p. 10 (“Patent
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`Owner has been forced to address a similar ground with similar arguments in two
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`separate petitions.”).) “[S]ubstantial similarity of argument, standing alone, is
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`sufficient for a denial under § 325(d).” Conopco dba Unilever v. Procter and
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`Gamble Co., IPR2014-00628, Decision Denying Institution at p. 10 (Paper 21, Oct.
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`20, 2014).
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`IPR2016-00309
`U.S. Patent No. 7,224,668
`Further, Petitioner provides no reason as to why it could not have filed the
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`present Petition earlier, nor why its latest attack on the ’668 patent is
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`distinguishable from its two failed attempts. The grounds for denying the Petition
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`under 35 U.S.C. § 325(d) are even stronger than for Petitioner’s second failed
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`Petition. Unlike in the ’1710 Petition, where Petitioner stated—unpersuasively—
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`that it “became aware of Frazier and appreciated its disclosure” after the filing of
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`the ’974 IPR, Petitioner is silent as to its prior knowledge of the CoreBuilder
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`reference (despite producing material associated with CoreBuilder routers in the
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`ITC litigation, as further explained below). For this reason alone, the Board should
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`impute knowledge of CoreBuilder to the Petitioner at the time of the first and
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`second Petitions and deny institution of this third Petition under § 325(d). Samsung
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`Electronics Co. Ltd. et al. v. Rembrandt Wireless Tech., LP, IPR2015-00555,
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`Decision Denying Institution at 8 (Paper 20, June 19, 2015) (denying institution
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`because “Petitioner simply presents arguments now that it could have made in [the
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`original Petition], had it merely chosen to do so”). But, the Board should also deny
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`institution because Petitioner once again attempts to use the Board’s decision and
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`Patent Owner’s preliminary responses as roadmaps to present the same art and
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`arguments. See PNC Bank, N.A. v. Secure Axcess, LLC, CBM2015-00039, slip op
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`at 17 (PTAB July 10, 2015) (Paper 9) (“PNC Bank”) (Patent Owner preliminary
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`response “should not act as an entry ticket [or] a how-to guide” for Petitioner,
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`IPR2016-00309
`U.S. Patent No. 7,224,668
`quoting ZTE v. Content Guard, IPR2013-00454, 2013 WL 8595746 (PTAB Sept.
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`
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`25, 2013) (informative) (“ZTE”)).
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`A. The Board correctly rejected Petitioner’s first and second challenges to
`the ’668 patent.
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`In October 2015, the Board denied Petitioner’s first Petition against the ’668
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`patent. In its decision, the Board found that Amara, which Petitioner used in all of
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`its proposed grounds of unpatentability, did not disclose “whether the interface
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`ports are an aspect of the device being controlled or configured by the internal
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`applications.” (’974 Inst. Dec., p. 9.) Specifically, Petitioner argued that Amara
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`disclosed that its “internal applications” were the claimed “control plane
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`processes,” and that these “internal applications” configured “a plurality of
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`physical network interface ports.” The Board, however, correctly found that
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`Amara, at most, discloses that its internal applications “control or configure device
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`100,” and that Amara does not explicitly or inherently disclose that such “internal
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`applications” configure “network interface ports.” (’974 Inst. Dec., p. 12.)
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`Petitioner argued a similar line of reasoning for the claim element “port services
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`. . . as defined by control plane configurations,” and for the same reasons described
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`above—namely that Amara does not describe any configuring by its internal
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`applications—the Board found that the Petitioner did not meet its burden of
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`establishing that Amara anticipates the challenged claims of the ’668 patent.
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`U.S. Patent No. 7,224,668
`Petitioner was aware of Amara’s flaws regarding its “internal applications”
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`and the claimed “configuring.” In the final two pages of the original Petition,
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`Petitioner raised four additional grounds, stating that any of the previous grounds,
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`in combination with Habraken, would also render their respective claims obvious.
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`As Petitioner put it, the reason it included these grounds was in the event “one
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`were to conclude that” Amara did not describe: “(1) the internal applications
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`configuring the interface ports 202-06, (2) the internal applications configuring
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`policies applied by the policy engines 224-28, and (3) the addresses of the device
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`being specified in the configuration of the device 200.” (’974 Petition, p. 58.) In
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`other words, Petitioner recognized the risk the Board might conclude that Amara
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`did not disclose the claimed “configuring,” and thus attempted to mitigate that risk
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`by combining Amara with Habraken for the claimed “configuring.” The Board,
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`however, was not persuaded. As the Board explained, “The Petition . . . blanket
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`cites 46 pages of Habraken to support its contention that Habraken teaches [the
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`configuration] features.” (’974 Inst. Dec., p. 17.) Thus, the Board did not institute
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`on the Habraken ground as Petitioner’s two-page treatment of the Habraken ground
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`did “not identify with sufficient particularity the ground on which the challenge to
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`the independent claims is based.” (’974 Inst. Dec., p. 15.)
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`Petitioner filed a second Petition in August 2015, more than a month after
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`Patent Owner filed its preliminary response in the ’974 IPR proceeding. In the
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`IPR2016-00309
`U.S. Patent No. 7,224,668
`second Petition, Petitioner substituted Frazier for Amara but made substantially the
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`
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`same arguments as in its first deficient Petition—that Habraken’s disclosure of port
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`configuration would have been combinable with the internal applications of the
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`primary reference. In February 2016, the Board denied Petitioner’s second Petition.
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`And, although the second Petition attempted to provide specificity to the
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`obviousness argument presented in the first Petition, the Board found that such
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`specificity did not outweigh the fact that Patent Owner had “been forced to address
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`a similar ground of rejection with similar arguments in two separate Petitions.”
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`(’974 Inst. Dec., p. 10.) The Board also found that its decision to deny institution
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`was further supported by the fact that “Petitioner does not contend specifically that
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`the newly-cited references were not known or available to it at the time it filed the
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`’974 IPR.” (Id. at 11.)
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`B. The present Petition presents substantially the same arguments and
`prior art as in the first Petition.
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`The present challenge is proffered by the same Petitioner against the same
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`claims of the same patent using substantially the same art as applied in the first
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`Petition. (’974 IPR proceeding). Just as it did in the ’974 Petition, Petitioner
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`attempts to fix Amara’s deficiencies with a router handbook: Habraken in the ’974
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`Petition, and CoreBuilder in the present Petition. Indeed, even a cursory
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`comparison shows that the present Petition is largely copied—word-for-word—
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`from the ’974 Petition, with CoreBuilder swapped for Habraken.
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`IPR2016-00309
`U.S. Patent No. 7,224,668
`The only substantive difference between the present Petition and the first
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`
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`Petition—substitution of Habraken with CoreBuilder in the § 103 combinations—
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`is not new argument because Petitioner relies on CoreBuilder in the same manner
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`as it relied on Habraken in its first two Petitions. For example, in its first § 103
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`challenge, Petitioner stated that “if one were to conclude that” Amara did not
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`disclose “(1) the internal applications configuring the interface ports 202-06,” as
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`well as two other features, then “it would have been obvious in view of Habraken
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`to modify Amara’s device to include any or all of” these features. (’974 Petition,
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`p. 58.) The present Petition applies CoreBuilder in the same manner: “[a] POSITA
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`would have modified Amara’s device 200 in view of CoreBuilder such that an
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`administrator could use one of Amara’s internal applications 230 to configure the
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`interface ports 202-206.” (Petition, p. 18.) The argument is the same: “Amara
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`accordingly discloses the salient features of the ’668 Patent” (Petition, p. 15; ’974
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`Petition, p. 18), and according to Petitioner, a router handbook
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`(Habraken/CoreBuilder) would teach a person of skill in the art to modify Amara
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`to have internal applications configure the interface ports 202-206 (Petition, p. 18;
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`’974 Petition, p. 58).
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`The Board denied this argument in the first Petition, finding that the Petition
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`“fails to identify with sufficient specificity the differences between the claimed
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`invention and the prior art.” (’974 Inst. Dec., p. 17.) Petitioner attempted to address
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`IPR2016-00309
`U.S. Patent No. 7,224,668
`this fatal flaw in the second Petition by presenting Habraken combined with a
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`
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`different primary reference to create the appearance that a new argument was being
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`proposed. However, the similarity in the arguments—even with a new primary
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`reference—warranted the Board’s rejection under § 325(d). (See ’1710 Inst. Dec.,
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`p. 10 (“While the current Petition apparently attempts to provide such specificity
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`[lacking from the ’974 Petition] . . . Patent Owner, nonetheless, has been forced to
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`address a similar ground with similar arguments in two separate Petitions.”).) In
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`this, the third Petition, Petitioner attempts a different approach but to the same
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`effect—this time keeping the same primary reference (Amara) and substituting the
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`secondary reference. But, this reference shuffling should also fail. The presence of
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`a different secondary reference does not change the underlying facts or argument—
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`the argument presented for CoreBuilder is the same as the argument presented in
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`the first Petition for Habraken.
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`C. Petitioner provides no reason to institute using the same art and
`arguments of a previously denied Petition.
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`Petitioner’s failure to address the § 325(d) implications of reusing Amara
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`and the same technical teachings (albeit from a different secondary reference)
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`against the same claims challenged in the ’974 Petition weighs heavily against
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`institution of this third bite at the apple. Medtronic, Inc. v. NuVasive, Inc.,
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`IPR2014-00487, 2014 WL 4594734 at *7 (PTAB Sept. 11, 2014) (informative)
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`(“Petitioner has not provided any persuasive reasoning as to why we should
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`IPR2016-00309
`U.S. Patent No. 7,224,668
`institute inter partes review over ‘the same or substantially the same prior art or
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`
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`arguments’ that were previously presented.”) See also HTC Corp. v. NFC Tech.,
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`LLC, Case IPR2015-00384, 2015 WL 4149068 at *10 (PTAB July 6, 2015) (“HTC
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`Corp.”).; Conopco v. The Procter & Gamble Co., IPR2014-00628, 2014 WL
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`5388116 at *12 (PTAB Oct. 20, 2014) (“Conopco II”). Petitioner barely mentions
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`its previous two unsuccessful Petitions, making no attempt to describe any
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`differences between the arguments presented in this Petition and those previously
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`denied by the Board.
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`Petitioner is also tellingly silent as to when it first became aware of the
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`CoreBuilder reference. Such an omission “supports a reasonable inference that
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`those references were known and available to [Petitioner] when it requested review
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`the first time.” Conopco II at 11. Indeed, Petitioner at a minimum knew about and
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`produced material associated with CoreBuilder routers in the ITC litigation
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`involving the ’668 patent at least as early as April 16, 2015. (See, e.g., Exhibit
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`2001, April 16, 2015 Edelin letter; Exhibit 2002 CoreBuilder Command Reference
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`Guide; Exhibit 2003, May 12, 2015 Edelin letter; and Exhibit 2004 CoreBuilder
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`9000 Implementation Guide.)Thus, the Board should impute knowledge of
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`CoreBuilder to Petitioner when it filed the first Petition (filed in April 2015) and
`
`the second Petition (filed in August 2015). Petitioner provides no explanation as to
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`why it did not or could not present CoreBuilder when it filed its first Petition or its
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`IPR2016-00309
`U.S. Patent No. 7,224,668
`second Petition. For this additional reason, the Board should deny institution of
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`
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`this third Petition. See Roche Molecular Systems, Inc. v. Illumina, Inc., IPR2015-
`
`01091, slip op. at 15 (PTAB Oct. 30, 2015) (Paper 18) (“Petitioner . . . does not
`
`argue that any of the additionally cited references relied upon by the instant
`
`Petition were unknown or unavailable at the time of filing the [first Petition]. That
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`fact supports a reasonable inference that those references were known and
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`available to Ariosa when review was requested the first time. On this record,
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`interests of fairness, economy, and efficiency tip the balance in favor of denial.”);
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`see also Medtronic at *12; HTC Corp. at *10 (citing Conopco II at *11).
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`D. The Board should find that the third Petition improperly uses the ’974
`Institution Decision as a roadmap.
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`The Board should once again hold Petitioner to its strategic decisions.
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`Petitioner filed the present Petition two months after the Board denied the first
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`Petition. Using that denial as a roadmap, Petitioner copied the original Petition,
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`deleted the portions the Board specifically quoted in denying institution, and added
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`a cursory discussion of CoreBuilder to replace Habraken.
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`It is apparent that Petitioner copied its deficient anticipation argument from
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`the ’974 Petition and removed the exact language the Board quoted as deficient in
`
`its Institution Decision. For example, in the ’974 Institution Decision, the Board
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`provided a block quote of a portion of Petitioner’s argument for claim element
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`[1.1] spanning pages 21–22 of the Petition and determined that the presented
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`IPR2016-00309
`U.S. Patent No. 7,224,668
`argument was unpersuasive. (’974 Inst. Dec., p. 9; see also pp. 10–12.) In
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`
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`analyzing claim element [1.1], however, the present Petition repeats the bulk of the
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`original argument, replacing the portion quoted by the Board with: “As discussed
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`above, in the combination, an administrator can use one of the internal applications
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`to configure aspects of the interface ports, such as the port state, the port mode,
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`autonegotiation, or the IP address.” (Petition, p. 25; compare Petition, pp. 25–26
`
`and ’974 Petition, pp. 21–22.)
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`Petitioner also used the ’974 POPR as a roadmap to craft its present
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`argument. In that POPR, Patent Owner notified the Board that Petitioner never
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`addressed how Amara disclosed “the control plane port services operate on
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`packets received from specific, predetermined physical ports.” (’974 POPR,
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`pp. 32–34.) In its analysis of that claim element in the present Petition, Petitioner
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`copied its original argument and added three sentences of attorney argument
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`intended to address this exact deficiency. (Petition, pp. 29–31; see also ’974
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`Petition, pp. 25–28.) Similarly, Petitioner made modifications based on the ’974
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`POPR for claims 5, 6, and 18. (See Petition, pp. 35–36, 39–40; ’974 Petition,
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`pp. 31–33, 37, 38.)
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`The Board should reject such behavior because a “petitioner is not entitled to
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`unlimited challenges against a patent.” PNC Bank at 14. The Board has regularly
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`held that using a previous decision as a roadmap frustrates Congress’s intent to
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`IPR2016-00309
`U.S. Patent No. 7,224,668
`provide a quick and cost-effective alternative to litigation. Butamax Adv. Biofuels
`
`
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`v. GEVO, Inc., IPR2014-00581, 2014 WL 5299385 at *13 (PTAB Oct. 14, 2014).
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`Here, Petitioner reproduces a previously-denied Petition with minor adjustments
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`that directly correspond to the denying decision. An institution decision “should
`
`not act as an entry ticket [or] a how-to guide” for Petitioner to fix flaws in its
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`original Petition. PNC Bank at 17 (quoting ZTE). Allowing such tactics “would
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`allow petitioners to unveil strategically their best prior art and arguments in serial
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`petitions,” using previous denials as a roadmap, “until a ground is advanced that
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`results in review—a practice that would tax Board resources, and force patent
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`owners to defend multiple attacks.” Conopco v. The Procter & Gamble Co.,
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`IPR2014-00628, 2015 WL 1265489 at *5 (PTAB Mar. 20, 2015) (“Conopco I”).
`
`III. The ’668 patent presents a novel internetworking device that provides
`improved security and Quality of Service (QoS).
`A. Denial of Service (DoS) attacks have been a significant problem for
`networks.
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`By 2002, private and public data networks, including the Internet, were
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`critical to the worldwide communications infrastructure. As such, these networks
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`and their backbone components—routers, switches, firewalls, and web servers—
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`became a popular target for attackers. One common network attack, DoS, sought to
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`overwhelm a network to prevent the network from servicing normal network
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`traffic. A coordinated, widespread DoS attack, over many internetworking devices,
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`IPR2016-00309
`U.S. Patent No. 7,224,668
`can have a significant impact on the infrastructure, and “[i]n the extreme case, . . .
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`
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`result in multiple compromised Internet hosts that can disrupt the operation of the
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`Internet itself.” (’668 patent, 1:36–40.) As an example, a powerful attack in 2002
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`resulted in “seven of the thirteen servers” that managed global internet traffic
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`failing, which disrupted Internet traffic around the globe. (’668 patent, 1:25–29.)
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`DoS attacks exploit the normal traffic processing operations of network
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`routing components. For instance, attackers may generate malicious traffic and
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`direct it to what is known as the “control plane.” (’668 patent, 1:59–63.) The
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`control plane of a device “is responsible for higher layer functions of the device,
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`such as establishing routing tables and entering quality service policies.” (’668
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`patent, 1:56–59.) Attackers direct DoS attacks to the control plane because, if the
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`control plane fails, the entire device may malfunction or fail. (’668 patent, 1:59–
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`2:3.)
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`B. Existing approaches to address DoS attacks had serious limitations.
`Techniques developed prior to the ’668 patent to detect, prevent,