Paper No. ____
`Filed: April 29, 2016
`
`
`
`Filed on behalf of: Bungie, Inc.
`By: Michael T. Rosato (mrosato@wsgr.com)
`
`Andrew S. Brown (asbrown@wsgr.com)
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________________
`
`
`BUNGIE, INC.,
`Petitioner,
`
`v.
`
`
`
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`_____________________________
`
`Case no. IPR2016-00964
`Patent No. 6,829,634
`_____________________________
`
`PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT NO. 6,829,634
`
`
`
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`Case IPR2016-00964
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`TABLE OF CONTENTS
`
`Page
`
`I.
`
`INTRODUCTION ........................................................................................ 1
`
`II. MANDATORY NOTICES UNDER § 42.8 .................................................. 4
`
`III.
`
`PETITIONER HAS STANDING ................................................................. 6
`
`A. Grounds for Standing Under § 42.104(a) ............................................ 6
`
`B.
`
`Claims and Statutory Grounds Under §§ 42.22 and 42.104(b) ............ 6
`
`IV. SUMMARY OF THE ’634 PATENT AND ITS TECHNICAL FIELD ........ 7
`
`A. Overview of the ’634 Patent ............................................................... 7
`
`B.
`
`C.
`
`Overview of the Prosecution History .................................................. 9
`
`Overview of the Technical Field ....................................................... 10
`
`V.
`
`THERE IS A REASONABLE LIKELIHOOD THAT PETITIONER
`WILL PREVAIL WITH RESPECT TO AT LEAST ONE CLAIM ............ 12
`
`A.
`
`Claim Construction Under § 42.104(b)(3) ......................................... 12
`
`B.
`
`C.
`
`Level of Ordinary Skill in the Art and State of the Art ...................... 14
`
`Grounds for Unpatentability ............................................................. 14
`
`1.
`
`2.
`
`Ground 1: Claims 1-18 Are Obvious over Shoubridge ............ 14
`
`Ground 2: Claims 10-11, 15, and 18 Are Anticipated by
`Shoubridge .............................................................................. 38
`
`VI. CONCLUSION .......................................................................................... 38
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`LIST OF EXHIBITS
`
`
`Exhibit Description
`Ex. 1101 U.S. Patent No. 6,829,634 to Fred B. Holt et al. (“’634 patent”).
`Ex. 1102 Declaration of David K. Lin and the Certified File Wrapper for U.S.
`Patent No. 6,829,634.
`Ex. 1103 Bradley Bargen & Peter Donnelly, INSIDE DIRECTX, (Microsoft Press,
`1998) (“DirectPlay”).
`Ex. 1104 Declaration of Glenn Little and, as Exhibit B, Meng-Jang Lin, et al.,
`Gossip versus Deterministic Flooding: Low Message Overhead and
`High Reliability for Broadcasting on Small Networks, Technical
`Report No. CS1999-0637 (Univ. of Cal. San Diego, 1999) (“Lin”).
`Ex. 1105 Peter J. Shoubridge & Arek Dadej, Hybrid Routing in Dynamic Net-
`works, in 3 IEEE INT’L CONF. ON COMMC’NS CONF. REC. 1381-86
`(Montreal, 1997) (“Shoubridge”).
`Ex. 1106 Declaration of Steven Silvio Pietrobon and, as Exhibit F, Peter J.
`Shoubridge, Adaptive Strategies for Routing in Dynamic Networks,
`Ph.D. Thesis (Univ. S. Austl., 1996) (“Shoubridge Thesis”)
`Ex. 1107 John M. McQuillan, et al., The New Routing Algorithm for the AR-
`PANET, COM-28, No. 5 IEEE TRANSACTIONS ON COMMC’NS, 711-
`19 (1980) (“McQuillan”).
`Ex. 1108 Yogen Kantilal Dalal, Broadcast Protocols in Packet Switched Com-
`puter Networks (Ph.D. Thesis, Stanford University 1977) and
`supporting (“Dalal”)
`Ex. 1109 S. Alagar, et al., Reliable Broadcast in Mobile Wireless Networks,
`Military Communications Conference, 1 IEEE MILCOM ‘95 CONF.
`REC., 236-40 (San Diego, Cal., 1995) (“Alagar”).
`Ex. 1110 Certificate of Authenticity and a Press Release, Microsoft Boosts Ac-
`cessibility to Internet Gaming Zone with Latest Release (Apr. 27,
`1998) (PR Newswire) (“IGZ”).
`Ex. 1111 Donald M. Topkis, Concurrent Broadcast for Information
`Dissemination, SE-11, No. 10 IEEE TRANSACTIONS ON SOFTWARE
`ENGINEERING, 1107-11 (1985) (“Topkis”).
`Ex. 1112 Dimitri Bertsekas & Robert Gallager, DATA NETWORKS (Prentice
`Hall, 2d ed. 1992) (“Bertsekas”).
`Ex. 1113 Kuo-Jui Raymond Lin, Routing and Broadcasting in Two-
`dimensional Linear Congruential Graphs of Degree Four, Master’s
`Thesis (Concordia Univ. Montreal, Canada, 1994) (“Kuo-Jui Lin”).
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`Ex. 1114 William S. Davis and David C. Yen, THE INFORMATION SYSTEM
`CONSULTANT’S HANDBOOK: SYSTEMS ANALYSIS AND DESIGN (CRC
`Press, 1998) (“Davis”).
`Ex. 1115 V. G. Cerf, et al., Topological Design Considerations in Computer
`Commc’n Networks, COMPUTER COMMC’N NETWORKS (R. L. Grims-
`dale et al. eds., 1975) (“Cerf”).
`Ex. 1116 U.S. Patent No. 6,122,277 to Derrick Garmire et al. (“Garmire”).
`Ex. 1117 U.S. Patent No. 5,181,017 to Alexander H. Frey, Jr. et al. (“Frey”).
`Ex. 1118 Flaviu Cristian et al., Atomic Broadcast: From Simple Message
`Diffusion to Byzantine Agreement, 118 INFORMATION AND
`COMPUTATION 158-79 (Albert R. Meyer ed., 1995) (“Cristian”).
`Ex. 1119 Expert Declaration of David R. Karger
`Ex. 1120 Declaration of Peter John Shoubridge and, as Exhibit A, Peter J.
`Shoubridge, Adaptive Strategies for Routing in Dynamic Networks,
`Ph.D. Thesis (Univ. S. Austl., 1996) (“Shoubridge Thesis”), and as
`Exhibit B, Peter J. Shoubridge & Arek Dadej, Hybrid Routing in
`Dynamic Networks, in 3 IEEE INT’L CONF. ON COMMC’NS CONF.
`REC. 1381-86 (Montreal, 1997) (“Shoubridge”).
`Ex. 1121 SUPPORTING MICROSOFT WINDOWS 95, Vol. 1 (Microsoft Press 1995)
`(“Supporting Windows 95”).
`Ex. 1122 Declaration of Matthew R. Shapiro
`Ex. 1123 Declaration of Julian D. Moore
`
`
`
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`Bungie, Inc., (“Petitioner”) requests inter partes review of claims 1-18 of
`
`U.S. Patent No. 6,829,634 to Holt et al. (“the ’634 patent”), and that these claims
`
`be canceled as unpatentable over the prior art. According to PTO records, the ’634
`
`patent is assigned to Acceleration Bay, LLC (“Patent Owner”). A copy of the ’634
`
`patent is provided as Exhibit 1101. Inter partes review of the ’634 patent, was
`
`instituted in IPR2015-01964 and IPR2015-01996 on March 31, 2016 based on
`
`petitions filed by Activision Blizzard, Inc. Electronic Arts Inc., Take-Two
`
`Interactive Software, Inc., 2K Sports, Inc., and Rockstar Games, Inc., (“2015
`
`Petitioners”). The present Petition is a practical copy of the content related to the
`
`instituted grounds in IPR2015-01996. A motion for Joinder of the ’1996 IPR has
`
`been filed concurrently with this petition.
`
`I.
`
`INTRODUCTION
`
`The ’634 patent is directed to a computer network in which information is
`
`broadcast from one participant to every other participant. See, e.g., Ex. 1101, Ab-
`
`stract. In particular, the ’634 patent claims the use of “flooding” to broadcast
`
`information in computer networks configured as non-complete, “m-regular
`
`graphs.” Id. at 1:29-31, 4:49-5:6; cl. 1. This purported invention, however, was
`
`disclosed in printed publications that pre-date its filing date of July 31, 2000.
`
`“Flooding” refers to a simple, reliable technique for broadcasting infor-
`
`mation, in which the sender of a message transmits it to each of its neighbors, who
`
`in turn forward the message to each of their neighbors, who themselves forward it
`
`to each of their neighbors, and so on, until every participant has received the
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`message. Karger ¶ 46. (“Karger” will be used in this Petition to refer to Ex. 1119,
`
`the expert declaration of David R. Karger).1 This technique was well-known to
`
`persons of ordinary skill in the art (“POSITA”) for decades prior to the filing date
`
`of the ’634 patent. Karger ¶ 46; Ex. 1111 at 2; Ex. 1112 at 29-30; Ex. 1118 at 12.
`
`Similarly, long before July 2000, a POSITA would have understood that the
`
`topology of a network—the configuration of connections between its partici-
`
`pants—could have a significant impact on the network’s characteristics, such as its
`
`performance, scalability, and reliability. Karger ¶ 50; Ex. 1115 at 6-7; Ex. 1114 at
`
`6-12. As a result, many types of network topologies—including those based on
`
`non-complete, m-regular graphs—were well-known in the art. Karger ¶ 51; Ex.
`
`
`
`1 The declaration labeled “Karger” is an exact copy of Dr. Karger’s Declaration
`
`from IPR2015-01996, which was relied upon by the Board in that proceeding.
`
`Karger’s IPR2015-01996 Declaration is cited in this Petition to avoid unnecessary
`
`cost and to advance efficiency in this instance. As mentioned above, this Petition
`
`is presented along with a motion to join the ’1996 IPR, and by using the same
`
`Declaration, Petitioner has eliminated the need for analysis of another declaration
`
`or the addition of a new Expert. Please note that while the Declaration of Dr.
`
`Karger includes discussion and analysis of another ground (i.e., claims 1-18 are
`
`obvious over DirectPlay and Shoubridge; see e.g., Karger ¶¶74-195), Dr. Karger
`
`explicitly incorporates by reference the relevant discussion and analysis from that
`
`ground into the grounds presented herein. Karger ¶ 72.
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`1113 at 20. (An m-regular graph is one in which each node has exactly m connec-
`
`tions to other nodes, i.e., its neighbors; a non-complete graph is one in which at
`
`least two nodes are not connected to each other. Karger ¶¶ 40-41.) Moreover, the
`
`use of flooding over this particular type of topology was also well known. Karger
`
`¶ 51; Ex. 1104 at 9, 17 (flooding over 4-regular “Harary” graphs); Ex. 1108 at 88-
`
`89, 157, 161 (“hot potato forwarding” for controlled flooding over a 4-regular
`
`graph); Ex. 1105 at 2-4 (constrained flooding over a 4-regular graph); Ex. 1116 at
`
`1:59-66, 5:29-43, 6:62-66 (flooding over an m-regular “torus” network, an example
`
`of which is shown below in Section IV.C).
`
`The dependent claims of the ’634 patent add commonplace features that
`
`would also have been well-understood implementation choices to any POSITA.
`
`Indeed, the teachings of a 1997 IEEE paper published by Peter J. Shoubridge &
`
`Arek Dadej, “Hybrid Routing in Dynamic Networks” (“Shoubridge”) (Ex. 1105),
`
`anticipate or render obvious claims 1-18.
`
`Shoubridge was not considered by the USPTO during prosecution, although
`
`during prosecution of the related 6,714,966 and 6,701,344 patents (see Related
`
`Matters Under Rule § 42.8(b)(2) below) Ex. 1105 was listed in the Examiner’s
`
`search report. Shoubridge renders claims 1-18 unpatentable, and Petitioner
`
`respectfully requests that the Board find claims 1-18 obvious under § 103 by
`
`Shoubridge in view of the knowledge of a POSITA as Ground 1. Also, Petitioner
`
`respectfully requests that the Board find claims 10-11, 15, and 18 anticipated under
`
`§ 102 by Shoubridge as Ground 2.
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`II. MANDATORY NOTICES UNDER § 42.8
`
`The Real Parties in Interest Under § 42.8(b)(1): Bungie, Inc. is the real
`
`party-in-interest.
`
`Related Matters Under Rule § 42.8(b)(2): Claims 1-18 of the ’634 patent are
`
`currently subject to inter partes review in IPR2015-01964 and IPR2015-01996,
`
`both instituted on March 31, 2016, based on petitions filed by the 2015 Petitioners.
`
`Review was similarly instituted against claims 1-12 and 16-17 of U.S. Patent Nos.
`
`6,714,966 (IPR2015-01951 and IPR2015-01953, instituted March 24, 2016) and
`
`claims 1-12 and 16-19 of U.S. Patent No. 6,701,344 (IPR2015-01970 and
`
`IPR2015-01972, instituted March 24, 2016) based on petitions filed by the 2015
`
`Petitioners. The 2015 Petitioners have also filed petitions challenging claims 19-24
`
`of U.S. Patent No. 6,829,634 (IPR2016-00727), claims 1-16 of U.S. Patent No.
`
`6,732,147 (IPR2016-00747), claims 1-17 of U.S. Patent No. 6,910,069 (IPR2016-
`
`00726), claims 1, 3-5, 7-9, and 16 of U.S. Patent No. 6,920,497 (IPR2016-00724),
`
`claim 12 of the ’344 patent (IPR2016-00931), and claim 12 of the ’966 patent
`
`(IPR2016-00932), which are all pending pre-institution.
`
`Patent Owner has asserted the ’634 patent against at least some of the 2015
`
`Petitioners in Acceleration Bay LLC v. Activision Blizzard, Inc., Case No. 1:15-cv-
`
`00228-RGA (D. Del., filed Mar. 11, 2015); Acceleration Bay LLC v. Electronic
`
`Arts Inc., Case No. 1:15-cv-00282-RGA (D. Del., filed Mar. 30, 2015); and
`
`Acceleration Bay LLC v. Take-Two Interactive Software, Inc. et al, Case No. 1:15-
`
`cv-00311-RGA (D. Del., filed Apr. 13, 2015) (collectively, “the underlying
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`litigations”). Bungie is not a party to the underlying litigations. Bungie received a
`
`subpoena in connection with the underlying litigations, in response to which it has
`
`filed a motion to quash and for entry of a protective order, which is currently
`
`pending in the Western District of Washington as Case No. 2:15-MC-27.
`
`A motion for joinder with IPR2015-01996 is being filed concurrently with
`
`this petition. Additionally, Petitioner recently filed petitions for inter partes review
`
`of the ’966 patent (IPR2016-00935, IPR2016-00936) and of the ’344 patent
`
`(IPR2016-00933, IPR2016-00934). The ‘344 and ’966 patents have the same
`
`substantive specification (with the exception of one section, see, e.g. Ex. 1101 at
`
`16:29-17:11), filing date, and assignee as the ’966 patent, and are also asserted in
`
`the aforementioned litigations. Claims 1-18 of the ’634 patent are similar to the
`
`claims of the ’966 and ’344 patents.
`
`Lead and Back-Up Counsel (37 C.F.R. § 42.8(b)(3))
`
`Lead Counsel: Michael T. Rosato (Reg. No. 52,182)
`
`Back-Up Counsel: Andrew S. Brown (Reg. No. 74,177)
`
`Service Information – 37 C.F.R. § 42.8(b)(4). Petitioner hereby consents to
`
`electronic service. Email: mrosato@wsgr.com; asbrown@wsgr.com;
`
`khill@wsgr.com.
`
`Post: WILSON SONSINI GOODRICH & ROSATI, 701 Fifth Avenue, Suite 5100,
`
`
`
`Seattle, WA 98104-7036; Tel.: 206-883-2529; Fax: 206-883-2699
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`III. PETITIONER HAS STANDING
`
`A. Grounds for Standing Under § 42.104(a)
`
`
`
`The undersigned and Petitioner certify that the ’634 patent is available for
`
`inter partes review and Petitioner is not barred or estopped from requesting an
`
`inter partes review of claims 1-18 of the ’634 Patent. Petitioner has not filed a
`
`civil action challenging the validity of any claim of the ’634 patent. A complaint
`
`alleging infringement of the ’634 patent was not served on Petitioner more than a
`
`year before the date of this Petition and a motion for joinder has been filed to join
`
`IPR2015-01996 no later than 1 month after institution in accordance with 37
`
`C.F.R. § 42.122(b) and 35 U.S.C. § 315(c). The ’634 patent issued more than nine
`
`months prior to the date of this Petition.
`
`B. Claims and Statutory Grounds Under §§ 42.22 and 42.104(b)
`
`Petitioner requests inter partes review of claims 1-18 of the ’634 patent
`
`under 35 U.S.C. § 311 and AIA § 6 and asserts that these claims are unpatentable
`
`as follows:
`
`Ground
`
`Claims
`
`Unpatentable over
`
`1
`
`2
`
`1-18
`
`Obvious over Shoubridge
`
`10-11, 15, and 18 Anticipated by Shoubridge
`
`Grounds 1 and 2 are practical copies of the grounds the Board instituted in
`
`IPR2015-01996, challenging the same claims over the same prior art and using the
`
`same arguments and expert testimony. As mentioned above, Petitioner is
`
`requesting joinder with IPR2015-01996. Institution and joinder for Grounds 1 and
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`2 should create no additional burden for the Board, Patent Owner, or 2015
`
`Petitioners because these grounds are practical copies of already instituted grounds.
`
`IV. SUMMARY OF THE ’634 PATENT AND ITS TECHNICAL FIELD
`
`A. Overview of the ’634 Patent
`
`The ’634 patent describes a computer network in which information is
`
`broadcast from one participant to every other participant. See, e.g., Ex. 1101, Ab-
`
`stract; Karger ¶ 26. The challenged claims require that each participant is con-
`
`nected to the same (m) number of neighbors, so the network is m-regular, where m
`
`is at least three. Ex. 1101, cls. 1, 10; Karger ¶ 27. Claim 1 is representative:
`
`1. A non-routing table based computer network having a plurality of
`
`participants, each participant having connections to at least three
`
`neighbor participants, wherein an originating participant sends data to
`
`the other participants by sending the data through each of its connec-
`
`tions to its neighbor participants, wherein each participant sends data
`
`that it receives from a neighbor participant to its other neighbor partic-
`
`ipants, wherein data is numbered sequentially so that data received out
`
`of order can be queued and rearranged, further wherein the network is
`
`m-regular and m-connected, where m is the number of neighbor par-
`
`ticipants of each participant, and further wherein the number of partic-
`
`ipants is at least two greater than m thus resulting in a non-complete
`
`graph.
`
`Ex. 1101 at 29:12-252; Karger ¶¶ 30, 60.
`
`
`
`2 All emphasis in quotations is added unless otherwise noted.
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`By mandating that the number of participants be at least two greater than m,
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`the challenged claims also require that the network form a non-complete graph,
`
`where each node on the graph represents a participant, and two nodes connected by
`
`a line (edge) on the graph are neighbors. Ex. 1101 at Abstract; id. cls. 1, 10; id. at
`
`4:49–5:6. Karger ¶¶ 27-28. A complete graph is one that is fully connected,
`
`meaning that each node is connected to every other node, whereas in a non-
`
`complete graph, at least two nodes are not connected to each other. Karger ¶ 28,
`
`41. All of the claims further require that the
`
`network is also m-connected. Ex. 1101, cls. 1, 10;
`
`Karger ¶ 27. A graph is m-connected when it would
`
`take the removal of at least m nodes to divide the
`
`graph into two or more separate parts. Ex. 1101 at
`
`5:1-5; Karger ¶ 27. Figure 1 of the ’634 patent, for
`
`example, “illustrates a graph that is [both] 4-regular
`
`
`
`and 4-connected.” Ex. 1101 Fig. 1, 3:3-4; Karger ¶
`
`Ex. 1101: Figure 1
`
`27.
`
`Finally, the challenged claims further require that the participants broadcast
`
`messages to each other using a technique whereby the originating participant sends
`
`the data to be transmitted to each of its neighbors, who in turn forward the data to
`
`each of their neighbors. See, e.g., Ex. 1101 cl. 1; Karger ¶ 29. This forwarding
`
`process is repeated until every participant has received the message. See Ex. 1101
`
`cl. 1; id. at 7:55-8:7; Karger ¶ 29. The message is thereby reliably broadcast across
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`the entire network. Ex. 1101 at 7:55-66, 8:8-9; Karger ¶ 29. Although the term is
`
`not expressly used in the specification, this technique (and its variations), are
`
`commonly referred to as “flooding.” Karger ¶ 29; Ex. 1104 at 9.
`
`B. Overview of the Prosecution History
`
`The application that led to the ’634 patent was filed July 31, 2000, and Ap-
`
`plicants did not claim priority to any earlier-filed application. During prosecution
`
`the application was subject to a single office action where the Examiner rejected
`
`original claims 1-49 as anticipated by U.S. Patent No. 6,611,872 to McCanne. Ex.
`
`1102 at 164.
`
`In response to this rejection, Applicants amended the preamble of each inde-
`
`pendent claim to indicate that the claim is directed to a “non-routing table based
`
`computer network.” Id. at 260. According to Applicants McCanne only disclosed
`
`the use of an “overlay protocol that uses routing tables to route information.” Id.
`
`Applicants also added an additional limitation to issued independent claims 1 and
`
`10 to require that “data is numbered sequentially so that data received out of order
`
`can be queued and rearranged.” Id. at 253, 260-61. According to Applicants,
`
`McCanne failed to disclose such a sequential numbering technique. Id. at 260-61.
`
`Thereafter the Examiner entered an Examiner’s Amendment which amended
`
`each independent claim to further recite that “the network is m-regular and m-
`
`connected, where m is the number of neighbor participants of each participant, and
`
`further wherein the number of participants is at least two greater than m thus re-
`
`sulting in a non-complete graph,” and removed the limitation from final independ-
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`ent claim 10 requiring that “data is numbered sequentially so that data received out
`
`of order can be queued and rearranged.” Thus, each independent claim requires an
`
`m-regular, incomplete structure. Id. at 267-68. The Examiner noted in his reasons
`
`for allowance that McCanne “does not disclose, teach, or suggest the claim limita-
`
`tion of 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 par-
`
`ticipants is at least two greater than m thus resulting in a non-complete graph as re-
`
`cited in the amended claims 1, 19, and 44, therefore the claims are found allowable
`
`over prior art of record.” Id. at 269-70.
`
`C. Overview of the Technical Field
`
`The use of flooding to broadcast information over a computer network, in
`
`general, had been known for decades before the July 2000 filing date of the ’634
`
`patent. Karger ¶ 46; see, e.g., Ex. 1107 at 5 (“We considered different approaches
`
`for distributing the updates [8] and decided on ‘flooding,’ in which each node
`
`sends each new update it receives on all its lines except the line on which the up-
`
`date was received.”); see also, Ex. 1111 at 2; Ex. 1112 at 29-30; Ex. 1118 at 12.
`
`Moreover, the use of flooding in networks based on m-regular, non-complete
`
`graphs, in particular, was also well known in the art. Karger ¶ 51. For example,
`
`Shoubridge discloses the use of flooding over m-regular, non-complete “torus”
`
`graphs, such as the graph in Figure 4.2 (shown below (left)). Karger ¶ 51; see Ex.
`
`1105 at 3. (Figure 4.2 is from Ex. 1106, a 175-page Ph.D. thesis also by Peter J.
`
`Shoubridge, hereinafter “Shoubridge Thesis,” which discloses the same body of
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`work that is described in more concise form in the six-page IEEE publication of
`
`Ex. 1105. See Ex. 1106 at 94; id. at 189.)3
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`
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`Ex. 1106 : Fig 4.2
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`Ex. 1117: Fig. 1
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`
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`Similarly, a paper by Yogen Dalal (1977) discloses the use of flooding over non-
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`complete, 4-regular networks. Karger ¶ 51; see Ex. 1108 at 88-89, 157, 161.
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`Flooding over a 4-regular “torus” network (shown above (right)) is also disclosed
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`in U.S. Patent No. 6,122,277 (Ex. 1116; Karger ¶ 51) (which incorporates by refer-
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`ence the disclosure of U.S. Patent No. 5,181,017 (Ex. 1117; Karger ¶ 51)) and thus
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`is prior art under § 102(e), as the filing date is August 19, 1997. See Ex. 1116 at
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`1:59-66, 5:29-43, 6:62; Ex. 1117 at Fig. 1.
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`Also, long before July 2000, a POSITA would have understood that the to-
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`pology of a network could have a significant impact on the network’s characteris-
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`tics, such as its performance, scalability, and reliability. Karger ¶ 51; Ex. 1115 at
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`
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`3 Peter John Shoubridge, “Adaptive Strategies For Routing In Dynamic Networks,”
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`Ph.D. thesis, University of South Australia, 1996), is also prior art under § 102(b).
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`Ex. 1106; Ex. 1120.
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`6-7; Ex. 1114 at 6-12. As a result, many types of network topologies—including
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`those based on non-complete, m-regular graphs—were well-known in the art.
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`Karger ¶ 51; Ex. 1113 at 20. These topologies were routinely represented using
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`graph theory (with computers as nodes, and connections as edges), with mathemat-
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`ical proofs or simulations developed to model the performance and reliability of
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`the network. Karger ¶ 37, ¶¶ 36-45; see, e.g., Ex. 1115 at 7 (“This paper presents a
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`study of networks which are represented as linear graphs, and it is assumed the
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`reader is familiar with elementary notions of graph theory.”); Ex. 1108 at 114
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`(“The various classes of networks are distinguished by certain topological proper-
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`ties of the graphs that represent them, like the degree of the nodes, or whether the
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`graph is regular or not.”) (citation omitted).
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`V. THERE IS A REASONABLE LIKELIHOOD THAT PETITIONER
`WILL PREVAIL WITH RESPECT TO AT LEAST ONE CLAIM
`
`Petitioner submits there is at least “a reasonable likelihood that the petitioner
`
`would prevail with respect to at least one of the claims challenged in the petition.”
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`§ 314(a). Indeed, they are all at least obvious under the stated Ground.
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`A. Claim Construction Under § 42.104(b)(3)
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`Pursuant to § 42.100(b), for the purposes of this review, Petitioner construes
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`the claim language such that it is “given its broadest reasonable construction in
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`light of the specification of the patent in which it appears” (“BRI”). Because the
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`standard for claim construction at the USPTO is different than that used in District
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`Court litigation, see In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364, 1369
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`(Fed. Cir. 2004), MPEP § 2111, Petitioner reserves the right to argue a different
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`claim construction in a different forum for any term in the ’634 patent as appropri-
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`ate in that forum. For terms not specifically listed and construed below, and in the
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`absence (to date) of arguments from Patent Owner concerning claim construction,
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`Petitioner interprets them for purposes of this review with their plain and ordinary
`
`meaning consistent with the specification of the ’634 patent. Petitioner also
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`reserves its right to assert in litigation that the claims are invalid for reasons other
`
`than prior art, including under §§ 101 and/or 112.
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`As used in the challenged claims, for purposes of this review:
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`“m-regular” (cls. 1, 10) means “each node is connected to exactly m other
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`nodes.” See, e.g., Ex. 1101 at 4:64-65, 15:32-41.
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`“non-complete graph” (cls. 1, 10) means “graph in which at least two
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`nodes are not connected to each other.” See, e.g., id. at 29:23-25, 29:58-60.4
`
`
`
`4 In the institution decisions (at page 7) for IPR No. 2015-01996, the Board
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`observed:
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`the claims define what a non-complete graph is. For example, in claim
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`1, a non-complete graph results when each participant is connected to
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`exactly m neighbor participants, “and further wherein the number of
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`participants is at least two greater than m thus resulting in a non-
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`complete graph.” Ex. 1101, 29:23–25.
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`Petitioner submits that this Petition should prevail regardless of whether the
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`construction proposed in the Petition or the construction adopted by the Board in
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`IPR No. 2015-01996 is applied here.
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`“m-connected” (cls. 1, 10) means “dividing the network into two or more
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`separate parts would require the removal of at least m nodes.” See, e.g., id. at 5:1-5.
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`B.
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`Level of Ordinary Skill in the Art and State of the Art
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`Petitioner submits that the applicable POSITA would have a minimum of:
`
`(1) a bachelor’s degree in computer science, computer engineering, applied math-
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`ematics, or a related field of study; and (2) four or more years of industry experi-
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`ence relating to networking protocols or network topologies. Karger ¶ 19.
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`Additional graduate education could substitute for professional experience, or
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`significant experience in the field could substitute for formal education. Id.
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`C. Grounds for Unpatentability
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`The challenged claims of the ’634 patent are directed to a non-routing table
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`based computer network. Shoubridge in view of the knowledge of a POSITA
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`renders obvious claims 1-18 (Ground 1), and Shoubridge anticipates claims 10-11,
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`15, and 18 (Ground 2).
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`1. Ground 1: Claims 1-18 Are Obvious over Shoubridge
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`a. Overview of Shoubridge
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`Shoubridge is prior art under § 102(b). Ex. 1105; Ex. 1120; Karger ¶ 78.5
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`Shoubridge discloses techniques for routing messages to participants in communi-
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`cations networks, including wireless computer networks, and draws extensively on
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`
`
`5 The documents submitted as Exhibits 1224-1226 in the related IPR2016-00931
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`provide further confirmation of the prior art status of Shoubridge.
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`work directed towards more general computer networking. See Ex. 1105 at 1, 6
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`(References) (citing numerous works on computer networking and routing in com-
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`puter networks); Karger ¶ 79. Shoubridge models communications networks as
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`graphs in which “[e]ach node functions as a source of user traffic entering the net-
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`work.” Ex. 1105 at 2; Karger ¶ 79. Nodes with a connection between them are
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`called “neighbours.” Ex. 1105 at 2; Karger ¶ 79.
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`Shoubridge discloses a routing protocol called “flooding” in which a node
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`sends a message to all of its neighbors. Ex. 1105 at 2-3; Karger ¶ 80. Each neigh-
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`bor, upon receiving a message for the first time, broadcasts the message to all of its
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`neighbors except for the one from which it received the message. Ex. 1105 at 2-3;
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`Karger ¶ 80. See also Section IV.C above (discussing flooding’s status as a well-
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`known technique in the field of computer networking with a decades-long pedigree
`
`at the time of Shoubridge’s publication).
`
`Shoubridge also discusses the application of flooding in the context of rout-
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`ing a packet in a network from a source node to a specific destination node. Ex.
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`1105 at 3; Karger ¶ 81. In such a case, although a packet is ultimately only intend-
`
`ed for a single destination node, it is nevertheless broadcast to all nodes. See Ex.
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`1105 at 3 (“[t]his technique ensures that all nodes are visited at least once...”); id at
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`1 (“[f]looding algorithms simply broadcast user traffic through a network...”);
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`Karger ¶ 81. Because each packet in a network employing flooding is broadcast to
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`all nodes in the network, flooding is appropriate not only for single-destination
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`routing, but also for broadcasting the same piece of information to all nodes in a
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`network. See, e.g., Ex. 1105 at 1; Karger ¶ 81 Shoubridge demonstrates familiarity
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`with the use of flooding for broadcasting information to all (rather than just one)
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`nodes in the network as evidenced by its citation to Ex. 1107 (McQuillan, et al.,
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`“The New Routing Algorithm for the ARPANET,” IEEE Transactions Commc’ns,
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`Vol. 28, No. 5, 1980 (“McQuillan”). See Ex. 1105 at 1 (“This algorithm can be
`
`executed centrally or topology information can be broadcast to all nodes in a de-
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`centralized implementation [2].” (Reference [2] is the McQuillan reference));
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`Karger ¶ 82. In McQuillan, flooding is the mechanism employed to broadcast up-
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`dates throughout a network:
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`We considered different approaches for distributing the updates [8]
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`and decided on “flooding,” in which each node sends each new update
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`it receives on all its lines except the line on which the update was re-
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`ceived. An important advantage of flooding is that the node sends the
`
`same message on all its lines, as opposed to creating separate messag-
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`es on the different lines. These messages are short (no addressing in-
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`formation is required), so that the total overhead due to routing up-
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`dates is much less than one percent. A final consideration which fa-
`
`vors flooding is that it is independent of the routing algorithm. This
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`makes it a safe, reliable scheme.
`
`Ex. 1107 at 5; Karger ¶ 83. A POSITA thus would have understood that
`
`Shoubridge discloses that flooding is a mechanism to broadcast to all destinations
`
`in a network. Karger ¶ 83.
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`Shoubridge compares the characteristics of multiple routing protocols, in-
`
`cluding flooding, on a network topology that is a 64-node network in which each
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`node has connections to 4 adjacent nodes—i.e., an m-regular network, where m=4.
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`Ex. 1105 at 3