UNITED STATES PATENT AND TRADEMARK OFFICE
`
`___________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`TALARI NETWORKS, INC.
`Petitioner
`
`v.
`
`FATPIPE NETWORKS INDIA LIMITED,
`Patent Owner
`
`
`___________________
`
`Case No. IPR2016-00976
`Patent 6,775,235 B2
`___________________
`
`PETITIONER’S REQUEST FOR REHEARING
`UNDER 37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`
`
`___________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`TALARI NETWORKS, INC.
`Petitioner
`
`v.
`
`FATPIPE NETWORKS INDIA LIMITED,
`Patent Owner
`
`
`___________________
`
`Case No. IPR2016-00976
`Patent 6,775,235 B2
`___________________
`
`PETITIONER’S REQUEST FOR REHEARING
`UNDER 37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`
`
`IPR2016-00976
`Patent No. 6,775,235 B2
`
`
`I.
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`SUMMARY OF ISSUE FOR REHEARING
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`Petitioner Talari Networks (“Talari”) respectfully requests rehearing under
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`37 C.F.R. Section 42.71(d) of the Board’s Final Written Decision (“Decision,”
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`Paper 32) finding, inter alia, that Talari had not shown that Karol anticipates or
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`renders obvious claim 19 of U.S. Patent No. 6,775,235 (“the ’235 patent”).
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`The Board correctly held that Karol anticipates or renders obvious
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`challenged claims 4, 5, and 7–15 of the ’235 patent. With respect to claim 19, the
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`Board found that, like claim 5, claim 19 “is directed to combining connections for
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`access to parallel networks” and Talari’s contentions for claim 19 are similar to the
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`contentions regarding claims 4 and 5. (Decision at 36.) The Board focused on a
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`single limitation in claim 19 which recites, “wherein the step of sending a packet to
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`the controller site interface is repeated as multiple packets are sent, and the
`
`controller sends different packets of a given message to different parallel
`
`networks.” (See Ex. 1001, Claim 19 (emphasis added); Decision at 36.) But the
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`Board overlooked the teachings of the ‘235 patent regarding a “message,”
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`misinterpreted the scope of claim 19, and misapprehended Talari’s argument
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`regarding Karol, in finding that Karol does not also anticipate or render obvious
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`claim 19.
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`In reaching its Decision, the Board focused on the use of the terms
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`“datagram,” “packet,” and “message” in Karol. The issue, however, is not how
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`-1-
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`IPR2016-00976
`Patent No. 6,775,235 B2
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`Karol uses those terms or whether Karol uses the terms “datagram” and “message”
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`in an interchangeable manner or whether Karol interchanges the terms “packet”
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`and “datagram.” (Decision at 37.) Rather, the issue is whether Karol discloses
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`sending different packets of a given “message” to different parallel networks as the
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`term “message” is used in the ’235 patent. The Board overlooked what constitutes
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`a “message” in the context of the ’235 patent and the scope of claim 19—namely,
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`the ’235 patent’s teaching that a “session” is a “message.” (Ex. 1001 at 11:40–43.)
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`Indeed, the Board determined that Karol discloses a “session” (Decision at 33–34),
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`which is by definition a “message” pursuant to the ’235 patent.
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`In light of the ’235 patent’s teachings, the Board misapprehended Talari’s
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`argument regarding claim 19 and Karol’s disclosure of sending different datagrams
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`or packets carrying UDP segments of a given UDP session (i.e., message) to
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`different parallel networks—the CL network and the CO network. (See Decision
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`at 36-37.) In Karol, the UDP session constitutes the “message” of claim 19, and
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`different datagrams or packets carrying the UDP segments of the same given UDP
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`session are sent to different parallel networks.
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`Talari respectfully requests that the Board grant rehearing and modify its
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`Decision to find that Talari has shown, by a preponderance of the evidence, that
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`Karol anticipates or renders obvious claim 19 of the ’235 patent.
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`IPR2016-00976
`Patent No. 6,775,235 B2
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`II. LEGAL STANDARDS
`“A party dissatisfied with a decision may file a request for rehearing,
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`without prior authorization from the Board.” 37 C.F.R. § 42.71(d). “The burden of
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`showing a decision should be modified lies with the party challenging the
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`decision” and “[t]he request must specifically identify all matters the party believes
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`the Board misapprehended or overlooked, and the place where each matter was
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`previously addressed in a motion, an opposition, or a reply.” Id.
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`III. ARGUMENT
`A. The Board overlooked the ’235 patent’s teaching that a “session”
`constitutes a “message” as required by claim 19, and there is no
`dispute that Karol discloses a “session.”
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`In finding that Karol does not render claim 19 unpatentable, the Board
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`overlooked the ’235 patent’s teaching of what constitutes a “message” and
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`misapprehended the literal scope of claim 19. In the Decision regarding claim 19,
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`the Board focused on how Karol uses the terms “datagram,” “packet,” and
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`“message”—but failed to consider what a “message” is in the context of the ’235
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`patent. (Decision at 37.) The Board overlooked the fact that the ’235 patent
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`expressly states that a “session” is a “message”:
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`Security: divide the packets of a given message (session, file, web
`
`page, etc.) so they travel over two or more disparate networks, so that
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`unauthorized interception of packets on fewer than all of the networks
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`IPR2016-00976
`Patent No. 6,775,235 B2
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`used to carry the message will not provide the total content of the
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`message.
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`(Ex. 1001 at 11:40–43.) In addition to a “session,” the ’235 patent describes other
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`examples of a “message,” including a “file” or a “web page.” (Id.) Talari and its
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`expert, Dr. Negus, reiterated this point in describing the ’235 patent: “The third of
`
`these enumerated criteria is ‘Security’, which the ‘235 Patent specification
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`describes as ‘divide the packets of a given message (session, file, Web page, etc.)
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`so they travel over two or more disparate networks’ (see, for example Ex. 1001 at
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`11:41-43).” (Ex. 1005 at ¶ 60; Paper 1 (“Pet.”) at 5–6.) As such, in the context of
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`the ’235 patent, a “session” is within the literal scope of a “message” as required
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`by claim 19.
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`Karol describes a “logical grouping of datagrams into a message” (compare
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`Decision at 37 (emphasis added)) because a “session” is a “message” in the context
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`of the ’235 patent. As Talari argued, and the Board correctly found, Karol
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`discloses a logical grouping of a number of packets or datagrams, i.e., a “flow” or a
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`“session” as recited in the ’235 patent:
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`As discussed above in the context of claim 4, we determine that
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`Petitioner has established that Karol discloses selecting a network for
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`a flow of packets. See supra § III.A.2. We find that the selection per
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`flow discloses the recited selection on a per session basis. A flow
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`IPR2016-00976
`Patent No. 6,775,235 B2
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`includes some number of packets (see Ex. 1006, 7:42–44) and we
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`determine that the term flow as used in Karol is broad enough to
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`encompass a session as recited in the ’235 patent.
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`(Decision at 33–34; see also Pet. at 25, 27–29, 54–55, 59–60.) Therefore, there
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`can be no dispute that Karol’s disclosure of a “session” satisfies the “message”
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`limitation recited in claim 19 of the ’235 patent.
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`This Board should grant rehearing, consider this argument and the intrinsic
`
`evidence that were overlooked, and find claim 19 unpatentable as anticipated or
`
`rendered obvious by Karol.
`
`B.
`
`The Board misapprehended Karol’s disclosure in finding that
`Karol does not teach “the controller sends different packets of a
`given message to different parallel networks”.
`
`In view of the ’235 patent’s teaching that a “session” is a “message,” Karol
`
`discloses sending different packets of a given message (i.e., session) to different
`
`parallel networks (i.e., the CL network and the CO network). (Pet. at 29–30 and
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`59–60.) Specifically, Talari argued that Karol teaches different datagrams or
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`packets of a given UDP session (i.e., message) are sent to the CO network and the
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`CL network: “Karol also discloses in Figure 6 that as multiple UDP datagrams are
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`sent, the CL-CO gateway sends some UDP datagrams over the CO network and
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`other UDP datagrams over the CL network. (Ex. 1006 at 10:51-67, Fig. 6; Ex.
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`1005 at ¶¶ 474-475.)” (Pet. at 29–30 and 59–60.)
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`-5-
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`IPR2016-00976
`Patent No. 6,775,235 B2
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`The Board misapprehended Talari’s argument regarding claim 19 and
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`Karol’s disclosure of sending different packets of a given UDP session (i.e.,
`
`message) to the CL network and the CO network. Talari’s argument is not based
`
`on the use of the term “message” in Karol (see Decision at 37), but rather, the use
`
`of the term “message” as set forth in the ’235 patent. When Talari’s argument and
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`evidence are considered based on the use of the term “message” as set forth in the
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`’235 patent, there can be no dispute that Karol discloses sending different packets
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`of a given message (i.e., session) to different parallel networks as required by
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`claim 19:
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`Karol discloses “the step of sending a packet to the controller site
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`interface is repeated as multiple packets are sent” (e.g., sessions such
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`as Internet telephony involve multiple packets sent to the input line
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`card of the CL-CO gateway from a particular source endpoint (Ex.
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`1006 at 6:44-50, FIG. 4; Ex. 1005 at ¶ 472)) and that “the controller
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`sends different packets of a given message to different parallel
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`networks” (e.g., some datagrams carrying UDP segments within a
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`message [i.e., session] from the same source endpoint to the same
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`destination endpoint are routed to the CL network while other
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`datagrams carrying UDP segments within the same message [i.e.,
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`session] from the same source endpoint to the same destination
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`IPR2016-00976
`Patent No. 6,775,235 B2
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`endpoint are routed to the CO network (Ex. 1006 at 10:25-39, 10:51-
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`11:26, and FIG. 6)). (Ex. 1005 at ¶ 476, see also Ex. 1005 at ¶¶ 477-
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`478.)
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`(Pet. at 29–30 (emphasis added); see also id. at 59–60; Paper 31 (Hearing Tr.) at
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`19:16–20:14.) Indeed, Karol describes an embodiment in Figure 6, in which for a
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`particular session (i.e., message) that uses UDP transport layer, the CL-CO
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`gateway forwards some datagrams over the CO network and forwards other
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`datagrams over the CL network—whereby the datagrams are within the same UDP
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`session (i.e., “message”). (Pet. at 29–30 and 59–60; Ex. 1005 ¶ 475 (citing Ex.
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`1006, 10:51–67, Fig. 6) and ¶¶ 472–480; see also Decision at 36.) Based on the
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`record evidence in light of the overlooked teachings of the ’235 patent, Karol
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`anticipates or renders obvious claim 19.
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`IV. CONCLUSION
`Because Karol discloses sending “different packets of a given message [i.e.,
`
`session] to different parallel networks [i.e., the CL network and the CO network],”
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`Karol anticipates or renders obvious claim 19 of the ’235 patent. The Board
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`overlooked the scope of the term “message” in the context of the ’235 patent and
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`misapprehended Talari’s argument and evidence demonstrating that claim 19 is
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`unpatentable over Karol. Talari respectfully requests that the Board grant
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`rehearing to cancel claim 19 of the ’235 patent.
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`-7-
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`IPR2016-00976
`Patent No. 6,775,235 B2
`
`Dated: December 1, 2017
`
`Respectfully submitted,
`
`
`
`By: /Andy H. Chan/
`Andy H. Chan
`Reg. No. 56,893
`Thomas F. Fitzpatrick
`Admitted pro hac vice
`Charles F. Koch
`Reg. No. 58,669
`Pepper Hamilton LLP
`333 Twin Dolphin Drive, Suite 400
`Redwood City, CA 94065
`Telephone: (650) 802-3600
`Facsimile: (650) 802-3650
`Email: chana@pepperlaw.com
`Email: fitzpatrickt@pepperlaw.com
`Email: kochc@pepperlaw.com
`
`Attorneys for Petitioner
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`-8-
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`IPR2016-00976
`Patent No. 6,775,235 B2
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e)(4)(i) et seq., the undersigned certifies that on
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`December 1, 2017, a complete and entire copy of this Petitioner’s Request for
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`Rehearing Under 37 C.F.R. § 42.71(d) was served on the following counsel of
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`record for Patent Owner via email:
`
`Robert C. Mattson
`Sameer Gokhale
`Oblon, McClelland, Maier & Neustadt, LLP
`1940 Duke Street
`Alexandria, VA 22314
`
`cpdocketmattson@oblon.com
`cpdocketgokhale@oblon.com
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`
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`Dated: December 1, 2017
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`
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`By: /Andy H. Chan/
`Andy H. Chan
`Reg. No. 56,893
`chana@pepperlaw.com
`Attorney for Petitioner
`
`
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`-9-
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