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.,
`Petitioners
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner
`________________
`
`Case No. IPR2016-00727
`Patent 6,829,634
`________________
`
`PATENT OWNER PRELIMINARY RESPONSE TO PETITION
`PURSUANT TO 37 C.F.R. §42.107
`
`
`
`
`
`

`
`Patent Owner’s Preliminary Response
`IPR2016-00727 (U.S. Patent No. 6,829,634)
`
`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION ........................................................................................... 1
`I.
`THE ‘634 PATENT ......................................................................................... 3
`II.
`III. CLAIM CONSTRUCTION .......................................................................... 10
`IV. SPECIFIC REASONS WHY THE CITED REFERENCES DO
`NOT INVALIDATE THE CLAIMS, AND WHY INTER
`PARTES REVIEW SHOULD NOT BE INSTITUTED ................................ 10
`A. Ground 1: Claims 19-24 are Patentable Over Obraczka in
`view of Obraczka Thesis and Shoubridge (or alternatively
`Obraczka in view of Shoubridge). ........................................................ 11
`1.
`The Petition Fails to Provide Adequate Motivation to
`Modify Obraczka with Obraczka Thesis and Shoubridge
`References ................................................................................. 15
`
`2.
`
`3.
`
`4.
`
`Obraczka in view of Obraczka Thesis and/or
`Shoubridge Fails to Disclose “non-routing table” (claim
`19) ............................................................................................. 20
`
`Obraczka in view of Obraczka Thesis and/or
`Shoubridge Fails to Disclose “requesting the located
`portal computer to provide an indication of neighbor
`participants to which the participant can be connected”
`and “receiving the indications of the neighbor
`participants” (Claim 19) ............................................................ 25
`
`Obraczka in view of Obraczka Thesis and/or
`Shoubridge Failure to Disclose Independent Claim 19
`Confirms the Patentability of Claims 20-24 ............................. 26
`
`B.
`
`Ground 2: Claims 19-22 and 24 are Patentable Over
`DirectPlay in view of Shoubridge ........................................................ 27
`1.
`The Petition Fails to Provide Adequate Motivation to
`Modify DirectPlay with Shoubridge Reference ....................... 29
`
`2.
`
`DirectPlay in view of Shoubridge Fails to Disclose
`“non-routing table” (claim 19) .................................................. 33
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`Patent Owner’s Preliminary Response
`IPR2016-00727 (U.S. Patent No. 6,829,634)
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`3.
`
`4.
`
`DirectPlay in view of Shoubridge Fails to Disclose
`“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” (claim 19) ........................................ 37
`
`DirectPlay in view of Shoubridge Fails to Disclose
`Independent Claim 19 Confirms the Patentability of
`Claims 20-22 and 24 ................................................................. 40
`
`C.
`
`V.
`
`Ground 3: Claim 23 is Patentable Over DirectPlay in view
`of Shoubridge and Denes ...................................................................... 41
`PETITIONERS’ OBVIOUSNESS ARGUMENTS FAIL AS A
`MATTER OF LAW BECAUSE IT DID NOT CONDUCT A
`COMPLETE OBVIOUSNESS ANALYSIS ................................................. 41
`VI. CONCLUSION .............................................................................................. 43
`
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`Patent Owner’s Preliminary Response
`IPR2016-00727 (U.S. Patent No. 6,829,634)
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`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`
`Activision Blizzard, Inc. v. Acceleration Bay, LLC,
`IPR2015-01953, Paper No. 8 (P.T.A.B. Mar. 24, 2016) .............................. 14, 30
`
`Activision Blizzard, Inc. v. Acceleration Bay, LLC,
`IPR2015-01972, Paper No. 8 (P.T.A.B. Mar. 24, 2016) .............................. 14, 30
`
`Activision Blizzard, Inc. v. Acceleration Bay, LLC,
`IPR2016-00931, Paper No. 13 (P.T.A.B. June 23, 2016) .................................. 30
`
`ActiveVideo Networks, Inc. v. Verizion Commc’ns, Inc.,
`694 F. 3d 1312 (Fed. Cir. 2012). ...................................................................... 16
`
`Apple Inc. v. Int’l Trade Comm’n,
`725 F.3d 1356 (Fed. Cir. 2013) .......................................................................... 42
`
`Crocs, Inc. v. Int’l Trade Comm’n,
`598 F.3d 1294 (Fed. Cir. 2010) .......................................................................... 43
`
`In re Cyclobenzaprine Hydrochloride Extended-Release Capsule
`Patent Litig.,
`676 F.3d 1063 (Fed. Cir. 2012) .......................................................................... 42
`
`Graham v. John Deere Co.,
`383 U.S. 1 (1966) ................................................................................................ 41
`
`In re Gurley,
`27 F.3d 551 (Fed. Cir. 1994) .............................................................................. 40
`
`Ex parte Ian Hector Frazer,
`Appeal No. 2012-002760,
`Decision on Appeal (P.T.A.B. Jan. 9, 2014) ...................................................... 32
`
`KSR Int’l Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) ...................................................................................... 16, 19
`
`Leo Pharm. Prods., Ltd. v. Rea,
`726 F.3d 1346 (Fed. Cir. 2013) .................................................................... 42, 43
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`Patent Owner’s Preliminary Response
`IPR2016-00727 (U.S. Patent No. 6,829,634)
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`Medichem, S.A. v. Rolabo, S.L.,
`437 F.3d 1157 (Fed. Cir. 2006) .......................................................................... 40
`
`OpenTV, Inc. v. Cisco Tech., Inc.,
`Case No. IPR2013-00328, Paper No. 13 (2013) .......................................... 16, 19
`
`Plantronics, Inc. v. Aliph, Inc.,
`724 F.3d 1343 (Fed. Cir. 2013) .......................................................................... 42
`
`Rambus Inc. v. Teresa Stanek Rea,
`731 F.3d 1248 (Fed. Cir. 2013) .......................................................................... 43
`
`In re Ratti,
`270 F.2d 810, 123 USPQ 349 (CCPA 1959) ................................................ 18, 24
`
`Ruiz v. A.B. Chance Co.,
`234 F.3d 654 (Fed. Cir. 2000) ............................................................................ 42
`
`Ex Parte Taro Fujii,
`No. 2009-011862, 2012 WL 370584 (B.P.A.I. Jan. 31, 2012) ........................... 40
`
`Travelocity.com L.P. v. Conos Technologies, LLC,
`CBM2014-00082, Paper 12 (P.T.A.B. Oct. 16, 2014) ......................................... 2
`
`In re Wertheim,
`541 F.2d 257 (CCPA 1976) ................................................................................ 20
`
`Statutes
`
`35 U.S.C. § 103(a) ................................................................................................... 11
`
`Other Authorities
`
`37 C.F.R. § 42.6(a)(ii) .............................................................................................. 44
`
`37 C.F.R. § 42.6(e) ................................................................................................... 45
`
`37 C.F.R. § 42.104(b) ................................................................................................ 2
`
`37 C.F.R. § 42.107 ................................................................................................... 45
`
`37 C.F.R. § 42.108(c) ................................................................................................. 1
`
`37 C.F.R. § 42.108(c) ................................................................................................. 1
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`Patent Owner’s Preliminary Response
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`Manual Patent Examining Procedure § 2143.01 ............................................... 18, 24
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`Patent Owner’s Preliminary Response
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`PATENT OWNER’S EXHIBIT LIST
`
`
`
`Description
`
`Exhibit-2001 Declaration of Michael Goodrich, Ph.D.
`
`Exhibit-2002 Thu Van Vu and Steven P. Risner, “Performance and Cost of
`Broadcast Routing Algorithms in the Strategic Defense System
`Terrestrial Network,” IEEE MILCOM, 1991, pp. 29.2.1-29.2.5
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`Patent Owner’s Preliminary Response
`IPR2016-00727 (U.S. Patent No. 6,829,634)
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`I.
`
`INTRODUCTION
`
`On March 12, 2016, Petitioners filed a Petition for inter partes review of
`
`claim 19–24 of U.S. Patent No. 6,829,634 (Ex. 1201, the “‘634 Patent”), which
`
`issued to The Boeing Company on December 7, 2004, based on an application
`
`filed in the USPTO on July 31, 2000. Acceleration Bay LLC (“Acceleration Bay”
`
`or “Patent Owner”) requests that the Board not institute inter partes review
`
`because Petitioners have not demonstrated a reasonable likelihood that it would
`
`prevail in showing unpatentability of any of the challenged claims on the grounds
`
`asserted in its Petition as required under 37 C.F.R. § 42.108(c).
`
`The ‘634 Patent is one of several patents obtained by Boeing directed to
`
`novel computer network technology, developed by inventors Fred Holt and Virgil
`
`Bourassa more than sixteen years ago, that solved critical scalability and
`
`reliability problems associated with the real-time sharing of information among
`
`multiple widely distributed computers. This innovative technology enabled large-
`
`scale, online collaborations with numerous participants continually joining and
`
`leaving—with applications ranging from aircraft design development to multi-
`
`player online games. A core feature of the patented technology claimed in the
`
`‘634 Patent at issue in the Petition is the manner in which a participant is added to
`
`non-routing table based m-regular, non-complete graph network.
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`Patent Owner’s Preliminary Response
`IPR2016-00727 (U.S. Patent No. 6,829,634)
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`The references cited in Grounds 1, 2, and 3 of the Petition do not disclose
`
`the approach to joining a network disclosed in the ‘634 Patent. For example, and
`
`in addition to further deficiencies, Petitioners have failed to meet its burden under
`
`37 C.F.R. § 42.104(b) to demonstrate that the cited references disclose:
`
` non-routing table based network (Claim 19);
` requesting the located portal computer to provide an indication of
`neighbor participants to which the participant can be connected
`(Claim 19);
` receiving the indications of the neighbor participants (Claim 19);
` 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 (Claim 19).
`
`Although there are a variety of reasons why the ‘634 Patent is valid over
`
`Petitioners’ asserted prior art references, this Preliminary Response focuses on
`
`only limited reasons why inter partes review should not be instituted. See
`
`Travelocity.com L.P. v. Conos Techs., LLC, CBM2014-00082, Paper 12 at 10
`
`(P.T.A.B. Oct. 16, 2014)(“[N]othing may be gleaned from the Patent Owner’s
`
`challenge or failure to challenge the grounds of unpatentability for any particular
`
`reason.”). Regardless, the deficiencies of the Petition noted herein, however, are
`
`more than sufficient for the Board to find that Petitioners have not met its burden
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`Patent Owner’s Preliminary Response
`IPR2016-00727 (U.S. Patent No. 6,829,634)
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`to demonstrate a reasonable likelihood that it would prevail in showing
`
`unpatentability of any of the challenged claims.
`
`II. THE ‘634 PATENT
`
`As discussed in the Background of the Invention section of the ‘634 Patent
`
`(the “Background”), point-to-point network protocols, such as UNIX pipes,
`
`TCP/IP, and UDP, allow processes on different computers to communicate via
`
`point-to-point connections. Ex. 1201 (“‘634 Patent”) at 1:46-48. However, the
`
`interconnection of all participants using point-to-point connections, while
`
`theoretically possible, does not scale well as the number of participants grows. Id.
`
`at 1: 48-51. Because each participating process needs to manage its direct
`
`connections to all other participating processes, the number of possible participants
`
`is limited to the number of direct connections a given machine, or process, can
`
`support. Id. at 1: 51-59.
`
`On the other end of the connectivity spectrum are client/server middleware
`
`systems that have a single server that does not communicate with any other server
`
`and coordinates all communications between various clients who are sharing the
`
`information. Id. at 1: 60-62. These systems rely on the sole server to function as a
`
`central authority for controlling all access to shared resources. Id. at 1:62-64.
`
`Such systems are also not well suited to sharing of information among many
`
`participants. When a client stores information to be shared at the server, every
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`Patent Owner’s Preliminary Response
`IPR2016-00727 (U.S. Patent No. 6,829,634)
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`other client must poll the server to determine that the new information is being
`
`shared, which places a very high overhead on the communications network. Id. at
`
`2:2-6. Alternatively, each client can register a callback with the server, which the
`
`server then invokes when new information is available to be shared. Id. at 2:6-8.
`
`However, such callback techniques create a performance bottleneck. A single
`
`server needs to effect a callback to each and every client whenever new
`
`information is to be shared. In addition, the reliability of the entire information
`
`sharing depends upon that of a single server; failure at the single server prevents all
`
`communications between any clients. Id. at 2:9-15.
`
`The ‘634 Patent is one of several patents obtained by Boeing directed to its
`
`novel computer network technology that solved the central bottleneck problem of
`
`client/server networks, as well as the problems of management complexity and
`
`limited supported connections of point-to-point networks. More particularly, the
`
`‘634 Patent describes using a broadcast channel that overlays a point-to-point
`
`network where each node, or participant, is connected to some—but not all—
`
`neighboring network nodes. For example, Fig. 2 of the ‘634 Patent, reproduced
`
`below, shows a network of twenty participants, where each participant is connected
`
`to four other participants:
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`IPR2016-00727 (U.S. Patent No. 6,829,634)
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`
`Id. at Fig. 2. Such a network arrangement, where each node in the network, is
`
`connected to the same number of other nodes, is known as an m-regular network.
`
`Id. at 4:64-65. That is, a network is m-regular when each node is connected to m
`
`other nodes, and a computer would become disconnected from the broadcast
`
`channel only if all m of the connections to its neighbouring nodes fail. Id. at 4:65-
`
`5:1. In Fig. 2 above, m=4 because each node is connected to four other nodes of
`
`the network. A network is said to be m-connected when it would take a failure of
`
`m computers to divide the graph into disjoint sub-graphs, i.e., separate broadcast
`
`channels. Id. at 5:1-6. The ‘634 Patent also describes a computer network in
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`Patent Owner’s Preliminary Response
`IPR2016-00727 (U.S. Patent No. 6,829,634)
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`which the number of network participants N (in Fig. 2, this is twenty) is greater
`
`than the number of connections m to each participant (in Fig. 2, this is four). Id. at
`
`Fig. 2. This network topology, where no node is connected to every other node, is
`
`known as a non-complete graph.
`
`The non-complete graph topology relies on participants to disseminate
`
`information to other participants, thus avoiding the bottleneck of a single central
`
`server node. See id. at 1:60-2:15. The use of a non-complete graph also avoids the
`
`inherent limitations on scaling, and the management of N connections (i.e., a
`
`connection to every other participant) at every network node. See id. at 1:48-59.
`
`As described in the ‘634 Patent, to broadcast a message, the originating computer
`
`sends the message to each of its neighbors using its point-to-point connections. Id.
`
`at 7:56-61. Each computer that receives the message then sends the message to its
`
`three other neighbors using the point-to-point connections. Id. at 7:62-8:7. In this
`
`way, the message is propagated to each computer connected to the broadcast
`
`overlay network using the underlying network, thus broadcasting the message to
`
`each computer over a logical broadcast channel.
`
`The ’634 Patent focuses on a process for adding nodes, or participants, to an
`
`existing network. In order to join an existing network, a seeking computer (e.g.
`
`node Z in Fig. 3B) locates and contacts a portal computer that is fully connected to
`
`the network. Id. at 6:19–25. The portal computer then identifies computers to
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`which the seeking computer will connect. Id. at 12:64–66. Once identified, the
`
`seeking computer joins the network by connecting to the identified computers
`
`using the ‘634 Patent’s edge pinning process.
`
`Figs. 3A and 3B of the ‘634 Patent, reproduced below, illustrate the process
`
`of breaking connections between nodes (i.e., “edges”) in a graph to add new node
`
`Z. In particular, Fig. 3A illustrates a graph that includes edges (cid:2161)(cid:2158) and (cid:2160)(cid:2159). In
`order to add new node Z to the graph, edges (cid:2161)(cid:2158) and (cid:2160)(cid:2159) are broken, and edges (cid:2161)(cid:2182),
`(cid:2158)(cid:2182),(cid:2160)(cid:2182) and (cid:2159)(cid:2182) are added:
`
`
`Id. at Figs. 3A and 3B. As described in the ‘634 Patent, when a computer seeks to
`
`join a broadcast channel, previously connected computers break connections to
`
`each other in favor of new connections to the seeking computer:
`
`Thus, some connections between computers need to be broken so that
`the seeking computer can connect to four computers. In one
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`Patent Owner’s Preliminary Response
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`two pairs of
`identifies
`technique
`the broadcast
`embodiment,
`computers that are currently connected to each other. Each of these
`pairs of computers breaks the connection between them, and then
`each of the four computers (two from each pair) connects to the
`seeking computer. FIGS. 3A and 3B illustrate the process of a new
`computer Z connecting to the broadcast channel. FIG. 3A illustrates
`the broadcast channel before computer Z is connected. The pairs of
`computers B and E and computers C and D are the two pairs that are
`identified as the neighbors for the new computer Z. The connections
`between each of these pairs is broken, and a connection between
`computer Z and each of computers B, C, D, and E is established as
`indicated by FIG. 3B. The process of breaking the connection
`between two neighbors and reconnecting each of the former
`neighbors to another computer is referred to as “edge pinning” as
`the edge between two nodes may be considered to be stretched
`and pinned to a new node.
`
`Id. at 6:15-34 (emphasis added).
`
`The ‘634 Patent describes a problem that arises when a seeking computer
`
`connects to computers directly connected to the portal computer or directly
`
`connected to one of its neighbors: the diameter of the network increases as it
`
`“becomes elongated in the direction of where the new nodes are added.” See id. at
`
`7:24–7:31. This issue is illustrated in FIGS. 4A–4C, reproduced below:
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`Patent Owner’s Preliminary Response
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`
`
`
`
`Although Figs. 4B and 4C both illustrate graphs in which node K has been added
`
`to the graph shown in Fig. 4A, the diameter of the graph of Fig. 4B is three
`
`(because the longest, shortest path between two nodes (e.g. G and K) traverses
`
`three edges, (cid:2163)(cid:2157), (cid:2157)(cid:2161), and (cid:2161)(cid:2167)), while the diameter of the graph of Fig. 4C remains
`two edges, (cid:2165)(cid:2163) and (cid:2163)(cid:2167)).
`
`two (because the longest, shortest path between nodes, (e.g. I and K) traverses only
`
`In order to minimize the diameter of the graph as new nodes are added, the
`
`‘634 Patent describes a “random selection technique to identify” neighbors for a
`
`seeking computer. Id. at 7:47–50. This technique minimizes the graph diameter
`
`by distributing connections for new seeking computers throughout the graph
`
`instead of allowing the graph to elongate in any one direction. Id. at 7:47–53. In
`
`order to randomly select the computers to which the seeking computer will
`
`connect, the “portal computer sends an edge connection request through one of its
`
`internal connections that is randomly selected.” Id. at 14:1–3. The receiving
`
`computer then sends the edge connection request on a random one of its internal
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`connections, and so on, until “the message has traveled far enough to represent a
`
`randomly selected computer.” Id. at 14:16–19.
`
`III. CLAIM CONSTRUCTION
`
`Patent Owner respectfully submits, without prejudice, that, for purposes of
`
`this Patent Owner Preliminary Response, it is not necessary to construe any of the
`
`terms in the claims of the ‘634 Patent.
`
`IV. SPECIFIC REASONS WHY THE CITED REFERENCES DO NOT
`INVALIDATE THE CLAIMS, AND WHY INTER PARTES REVIEW
`SHOULD NOT BE INSTITUTED
`
`Petitioners’ proposed Grounds rely on five references: (1) Katia Obraczka et
`
`al., “A Tool for Massively Replicating Internet Archives: Design, Implementation,
`
`and Experience”, IEEE Proceedings of the 16th International Conference on
`
`Distributed Computing Systems, May 1996 (Ex. 1224, “Obraczka”); (2) Katia
`
`Obraczka, Massively Replicating Services in Wide-Area Internetworks, Ph.D.
`
`Thesis, University of Southern California (Ex. 1225, “Obraczka Thesis”); (3) Peter
`
`J. Shoubridge et al., Hybrid Routing in Dynamic Networks, IEEE International
`
`Conference on Communications (Ex. 1205, “Shoubridge”); (4) Bradley Bargen and
`
`Peter Donnelly, Inside DirectX (Ex. 1203, “DirectPlay”); and (5) Tamás Denes,
`
`The “Evolution” of Regular Graphs of Even Order by their Vertices, Matematikai
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`Lapok, 27, 3–4 (Ex. 1229).1 In particular, Petitioners’ Ground 1 proposes that
`
`Claims 19-24 of the ‘634 Patent are obvious under pre-AIA 35 U.S.C. § 103(a)
`
`over Obraczka in view of Shoubridge (or alternatively Obraczka in view of
`
`Obraczka Thesis and Shoubridge). Petitioners’ Ground 2 proposes that Claims 19-
`
`22 and 24 of the ‘634 Patent are obvious over DirectPlay in view of Shoubridge.
`
`Petitioners’ Ground 3 proposes that Claim 23 of the ‘634 Patent are obvious over
`
`DirectPlay in view of Shoubridge and Denes.
`
`There are several reasons, however, that the Board should decline to institute
`
`inter partes review of the ‘634 Patent, including that the proposed combinations of
`
`Obraczka in view of Obraczka Thesis and/or Shoubridge or DirectPlay in view of
`
`Shoubridge do not teach the subject matter of independent claim 19, and that a
`
`POSITA would not have combined the cited references in the manner suggested at
`
`the time the ‘634 Patent was invented.
`
`A. Ground 1: Claims 19-24 are Patentable Over Obraczka in view of
`Obraczka Thesis and Shoubridge (or alternatively Obraczka in
`view of Shoubridge).
`
`Obraczka in view of Obraczka Thesis and Shoubridge does not disclose the
`
`“non-routing table” limitation of independent Claim 19. Petitioners admit that
`
`
`1 Patent Owner reserves its right to object to the accuracy of the English language
`
`translation of Ex. 1228, provided as Ex. 1229 (“Denes”).
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`neither Obraczka or Obraczka Thesis teaches the use of a “non-routing table.”
`
`Moreover, Petitioners fail to explain why a person of ordinary skill in the art would
`
`have combined Shoubridge with Obraczka to include the use of non-routing table.
`
`Indeed, Obraczka teaches the use of flooding in order to replicate Internet archives
`
`at the application layer, while Shoubridge teaches the use of flooding in order to
`
`communicate between highly mobile nodes, such as radios, at a lower level such as
`
`the transport layer, with each dismissing the each other approaches. For claim
`
`elements “requesting the located portal computer to provide an indication of
`
`neighbor participants to which the participant can be connected” (independent
`
`claim 19) or “receiving the indications of the neighbor participants” (independent
`
`claim 19), Petitioners rely solely on Obraczka. However, as demonstrated below
`
`Petitioners’ reliance on Obraczka for these claim elements is misplaced at least
`
`because Obraczka’s procedure for joining a group relies on a master computer
`
`rather than the identified portal computer.
`
`Obraczka purports to be a paper that describes a mechanism for replicating
`
`information across the Internet. In particular, Obraczka teaches a technique to
`
`replicate the information stored on a particular Internet server to a group of Internet
`
`servers so that users of the Internet will be able to access the data. Ex. 1224
`
`(“Obraczka”) at 658. Obraczka is concerned with providing an architecture for
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`“replicate Internet information services” and to scale it for “autonomously-
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`Patent Owner’s Preliminary Response
`IPR2016-00727 (U.S. Patent No. 6,829,634)
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`managed internetworks.” Obraczka at pg. 657.2 Figure 1 of Obraczka illustrates
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`the relationship between logical and physical network topologies in its
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`architecture:
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`
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`Obraczka at 659.
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`When a change is detected in the physical topology of the members of a
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`replication group, a new topology is calculated and flooded to all members of the
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`group. Id. at 660. Obraczka explains its procedure for adding a replica to a
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`replication group requires the new replica to communicate its existence to the rest
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`of the group, at which time the group master computes a new topology:
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`
`2 Petitioners have chosen to cite to the original page numbers of the Obraczka
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`reference rather than the page numbers provided in the exhibit labels. To avoid
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`confusion, Patent Owner has adopted this citation scheme in this paper.
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`Patent Owner’s Preliminary Response
`IPR2016-00727 (U.S. Patent No. 6,829,634)
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`When a new site joins a group, it sends a join request to an existing
`group member…A site is not part of the [] group until the master
`distributes a new topology that contains the site.
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`Id. at 660.
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`Shoubridge describes a hybrid routing strategy for sending user traffic
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`forward at nodes in mobile radio communications networks. The strategy defaults
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`to routing tables. Ex. 1205 at 1381. Recognizing that the distribution of traffic
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`loads and network topologies may vary from nearly static to very dynamic in
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`communications networks, Shoubridge asserts that it is very difficult to select a
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`single routing algorithm most appropriate for any network subjected to varying
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`degrees of dynamic behavior. Id. Shoubridge therefore proposes a routing
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`strategy that combines two distinct routing principles into a single hybrid routing
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`procedure: (i) minimum hop based routing tables, and (ii) local broadcast, or
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`constrained flooding.3 Id. at 1384-85. Importantly, the use of the routing tables is
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`3 Whenever Shoubridge speaks of flooding, it refers strictly to “constrained
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`flooding.” Ex. 1205 at 1382; Activision Blizzard, Inc. v. Acceleration Bay, LLC,
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`IPR2015-01953, Paper No. 8 at 22-24 (P.T.A.B. Mar. 24, 2016); see also
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`Activision Blizzard, Inc. v. Acceleration Bay, LLC, IPR2015-01972, Paper No. 8 at
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`21-23 (P.T.A.B. Mar. 24, 2016).
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`Patent Owner’s Preliminary Response
`IPR2016-00727 (U.S. Patent No. 6,829,634)
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`primary; the constrained flooding, however, is only used under exigent
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`circumstances—and then only at individual nodes that lack a next node entry. Id.
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`at 00001, 00004. Shoubridge identifies such exigent circumstances as occurring
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`when the behavior of a network (or smaller regions within it) changes from quasi-
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`static to very dynamic. Id. at 00001.
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`1.
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`The Petition Fails to Provide Adequate Motivation to
`Modify Obraczka with Obraczka Thesis and Shoubridge
`References
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`In addition to the combination of Obraczka, Obraczka Thesis, and/or
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`Shoubridge failing to combine to teach the invention claimed in the ‘634 Patent
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`(see infra), Petitioners provide insufficient motivation to combine these three
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`references. For the alleged motivation to combine Obraczka, Obraczka Thesis,
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`and/or Shoubridge, Petitioners assert that “[a] POSITA would… have been aware
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`of, and motivated to combine the teachings of these references, because they were
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`in the same technical field, presented non-complete network topologies, and
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`addressed the same technical problems” and that “Obraczka and the Obraczka
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`Thesis teach efficient and reliable massive replication of data in wide area
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`networks, and Shoubridge provides additional compatible ways to increase
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`scalability, reliability, and efficiency.” Petition at 19, 22. Petitioners’ tactic of
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`attempting to establish a motivation to combine Obraczka, Obraczka Thesis, and
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`Shoubridge with no focus on “how specific references could be combined, which
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`Patent Owner’s Preliminary Response
`IPR2016-00727 (U.S. Patent No. 6,829,634)
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`combination(s) of elements in specific references would yield a predictable result,
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`or how any specific combination would operate or read on the asserted claims” is
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`insufficient as a matter of law. ActiveVideo Networks, Inc. v. Verizion Commc’ns,
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`Inc., 694 F. 3d 1312, 1327 (Fed. Cir. 2012).
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`Petitioners’ first argument for combining Obraczka, Obraczka Thesis, and
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`Shoubridge is that “[a] POSITA would… have been aware of, and motivated to
`
`combine the teachings of these references, because they were in the same technical
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`field, presented non-complete network topologies, and addressed the same
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`technical problems.” Petition at 22. On its own, this argument is facially
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`insufficient as a matter of law. See Decision on Institution of Inter Partes Review,
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`OpenTV, Inc. v. Cisco Tech., Inc., IPR2013-00328, Paper No. 13 at 12-22
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`(P.T.A.B. Nov. 29, 2013)(“The mere fact that the [cited references] describe
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`similar [] systems is not, by itself, a sufficient rationale for a person of ordinary
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`skill in the art to have made the asserted combination.”)(citing KSR Int’l Co. v.
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`Teleflex Inc., 550 U.S. 398, 418 (2007)). Obraczka and the Obraczka Thesis are
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`concerned with the replication of data on Internet servers so that users can access
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`the data at a particular DNS. Shoubridge is directly to a completely different
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`technical field, namely the connectivity of mobile devices. One of skill in the art
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`would not look to or combine Obraczka (or the Obraczka Thesis) and Shoubridge
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`Patent Owner’s Preliminary Response
`IPR2016-00727 (U.S. Patent No. 6,829,634)
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`because they are directed to completely different technologies and technical
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`problems. Ex. 2001, Goodrich Decl. at ¶¶ 29-32.
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`Petitioners’ second argument is that a POSITA would be motivated to apply
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`Shoubridge to Obraczka because “a POSITA would be motivated to avoid all of
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`these downsides associated with routing table uncertainties by adopting flooding as
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`a design choice.” Petition at 21. However, Obraczka’s premise is that it is best to
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`avoid network-level non-routing table flooding due to its lack of network
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`bandwidth efficiency in favor of re-computing a topology updates or when replicas
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`join the group. Obraczka at 657 (distinguishing its application-level flooding
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`process from network-level flooding like in Shoubridge4 by stating, “Note that the
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`flooding scheme that we propose differs from network-level flooding as used by
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`routing algorithms: flooding at the network level simply follows the network’s
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`physical topology and flood updates throughout all ph