`571-272-7822
`
`
`Paper No. 11
`Entered: November 17, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SANDVINE CORPORATION and SANDVINE INCORPORATED ULC,
`Petitioner,
`
`v.
`
`PACKET INTELLIGENCE, LLC,
`Patent Owner.
`____________
`
` Case IPR2017-00769 (Patent 6,651,099 B1)1
`Case IPR2017-00862 (Patent 6,665,725 B1)
`Case IPR2017-00450 (Patent 6,771,646 B1)
`Case IPR2017-00451 (Patent 6,839,751 B1)
`Case IPR2017-00629 (Patent 6,954,789 B2)
`Case IPR2017-00630 (Patent 6,954,789 B2)
`____________
`
`
`Before ELENI MANTIS MERCADER, JUSTIN T. ARBES, and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`MANTIS MERCADER, Administrative Patent Judge.
`
`
`DECISION
`Denying Petitioner’s Requests for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`1 We enter one Decision on Rehearing for the above identified proceedings
`because of the presence of common issues and involvement of the same
`parties. The parties are not authorized to use this style heading for any
`subsequent papers.
`
`
`
`Case IPR2017-00769 (Patent 6,651,099 B1)
`Case IPR2017-00862 (Patent 6,665,725 B1)
`Case IPR2017-00450 (Patent 6,771,646 B1)
`Case IPR2017-00451 (Patent 6,839,751 B1)
`Case IPR2017-00629 (Patent 6,954,789 B2)
`Case IPR2017-00630 (Patent 6,954,789 B2)
`
`
`
`Introduction
`In each of the instant proceedings, Petitioner filed a Request for
`Rehearing of our Decision denying institution of an inter partes review and
`Patent Owner filed an Opposition, pursuant to our authorization provided to
`the parties by email on August 29, 2017.2 The arguments made by the
`parties and the factual circumstances of each case are similar. For purposes
`of this Decision, we treat the Request for Rehearing in Case IPR2017-00769
`as representative, and specifically discuss the circumstances of that request.
`For the reasons stated below, Petitioner’s Requests for Rehearing are denied.
`
`
`Analysis
`When rehearing a decision on petition, the Board will review the
`decision for an abuse of discretion. 37 C.F.R. § 42.71(c). The party
`requesting rehearing bears the burden of showing an abuse of discretion, and
`“[t]he request must specifically identify all matters the party believes the
`Board misapprehended or overlooked.” 37 C.F.R. § 42.71(d).
`Petitioner contends that we overlooked or misapprehended parts of the
`Engel Appendix VI source code relied upon to demonstrate
`
`
`2 See IPR2017-00769, Papers 8 (“Decision” or “Dec.”), 9 (“Req. Reh’g”),
`10 (“Opp.”); IPR2017-00862, Papers 8, 9, 10; IPR2017-00450, Papers 8, 9,
`10; IPR2017-00451, Papers 8, 9, 10; IPR2017-00629, Papers 8, 9, 10;
`IPR2017-00630, Papers 8, 9, 10. Unless otherwise specified, we refer to
`papers filed in Case IPR2017-00769.
`
`2
`
`
`
`Case IPR2017-00769 (Patent 6,651,099 B1)
`Case IPR2017-00862 (Patent 6,665,725 B1)
`Case IPR2017-00450 (Patent 6,771,646 B1)
`Case IPR2017-00451 (Patent 6,839,751 B1)
`Case IPR2017-00629 (Patent 6,954,789 B2)
`Case IPR2017-00630 (Patent 6,954,789 B2)
`
`application-specific dialogs, which Petitioner argues meet the
`“conversational flow” limitations of the challenged claims. Req. Reh’g 1.
`Specifically, Petitioner asserts that “the Engel Appendix VI source code
`disclose[s] that (i) Application Level Dialogs are looked-up in an
`application-specific dialog hash table through application-specific
`processing routines and (ii) the hash look-up table includes only dialog
`records for the specific application.” Id. at 1–2, 4–12. Petitioner similarly
`asserts that we “overlooked or misapprehended parts of the Engel Appendix
`VI source code demonstrating that (i) Application-Specific Server Statistics
`are looked-up in an application-specific server hash table through
`application-specific processing routines and (ii) the hash look-up table
`includes only server records for the specific application.” Id. at 2, 12–15.
`Petitioner contends that it referred to Network File System (NFS) requests in
`the Petition as an “exemplary application activity,” but further “noted that
`[the] Engel Appendix VI source code supported other expressly disclosed
`application activities (e.g., FTP, SMTP, Telnet) each of which included
`similar, if not identical, application-specific processing routines to those
`specifically discussed for NFS.” Id. Petitioner asserts that “each supported
`application in Engel has its own code and own data structures for creating
`and tracking its own application-specific dialogs and server statistics.” Id.
`Petitioner further asserts that “[t]he determination of which
`application-specific routines will be executed on a particular packet is
`determined ‘based on the program identified from the port to program
`
`3
`
`
`
`Case IPR2017-00769 (Patent 6,651,099 B1)
`Case IPR2017-00862 (Patent 6,665,725 B1)
`Case IPR2017-00450 (Patent 6,771,646 B1)
`Case IPR2017-00451 (Patent 6,839,751 B1)
`Case IPR2017-00629 (Patent 6,954,789 B2)
`Case IPR2017-00630 (Patent 6,954,789 B2)
`
`map.’” Id. at 10 (quoting Ex. 1006 ¶ 77 (cited at Pet. 19 n.3)). Petitioner
`cites the following example:
`If the program identified is FTP, the next layer’s parse routine is
`rtp_ftp_parse. Engel Appendix VI at p. 132 of rtp_tcp_p.c. If the
`program identified is Telnet, the next layer’s parse routine is
`rtp_telnet_parse. Engel Appendix VI at p. 132 of rtp_tcp_p.c. If
`the program identified is SMTP, the next layer’s parse routine is
`rtp_smtp_parse. Engel Appendix VI at p. 132 of rtp_tcp_p.c.
`Finally, if the program identified is PortMapper, NFS, or NFS
`Mount, the next layer’s parse routine is rtp_rpc_parse. Engel
`Appendix VI at p. 132 of rtp_tcp_p.c.
`Id. (citing Ex. 1009, 132) (emphases omitted). Petitioner asserts that, “at a
`minimum, . . . it is at least reasonably likely that the Application Layer
`Dialogs in Engel are application specific.” Id.
`
`Patent Owner contends we did not misapprehend or overlook anything
`because Petitioner’s hash table argument is a new argument inappropriate
`for a rehearing request because it was not raised or developed in the Petition.
`Opp. 2–3; see Sophos Ltd. et al. v. Fortinet, Inc., Case IPR2015-00910, slip
`op. at 4–5 (PTAB Oct. 26, 2015) (Paper 10) (“A request for rehearing is not
`an opportunity to present new arguments or evidence that could have been
`presented and developed in the Petition . . . . [W]e could not have
`overlooked or misapprehended arguments or evidence not presented and
`developed by [Petitioner] in the Petition.”); Telit Wireless Solutions Inc. v.
`M2M Solutions LLC, Case IPR2016-00055, slip op. at 3, 5 (PTAB May 24,
`2016) (Paper 13) (“A request for rehearing is not an opportunity for a party
`to add new arguments, or bolster prior arguments that were found
`
`4
`
`
`
`Case IPR2017-00769 (Patent 6,651,099 B1)
`Case IPR2017-00862 (Patent 6,665,725 B1)
`Case IPR2017-00450 (Patent 6,771,646 B1)
`Case IPR2017-00451 (Patent 6,839,751 B1)
`Case IPR2017-00629 (Patent 6,954,789 B2)
`Case IPR2017-00630 (Patent 6,954,789 B2)
`
`unpersuasive. . . . Petitioner attempts, belatedly, to provide explanation we
`found lacking in the original Petition.”); Ericsson Inc. v. Intellectual
`Ventures II LLC, Case IPR2015-01872, slip op. at 4 (PTAB April 19, 2016)
`(Paper 15) (“This argument was not presented in the Petition. A request for
`rehearing is not an opportunity for a party to introduce new argument,
`bolster insufficient argument, or mend gaps in the evidence relied on in the
`Petition.”).
`Patent Owner further contends that Petitioner’s new arguments
`pertaining to application hash tables do not show how these hash tables
`allegedly satisfy our construction of the term “conversational flow,” which
`we construed as
`the sequence of packets that are exchanged in any direction as a
`result of an activity (for instance, the running of an application
`on a server as requested by a client), where some conversational
`flows involve more than one connection, and some even involve
`more than one exchange of packets between a client and server.
`Opp. 7 (citing Dec. 9). Patent Owner contends that Petitioner appears to
`conflate the terms “application” and “protocol” in the Request. Id. at 9.
`According to Patent Owner, a “protocol” is “an established rule for
`formatting data,” see Paper 6, 4, whereas an “application” is “a software
`program that runs on a computer, for example, a web browser, word
`processor, Skype, etc.” Opp. 9 (citing Ex. 1006 ¶ 37 (“[The] application
`layer is concerned with the application itself. Examples of application layer
`protocols include HTTP (for web browsing), SMTP (for emails), and FTP
`(for file transfers).”)).
`
`5
`
`
`
`Case IPR2017-00769 (Patent 6,651,099 B1)
`Case IPR2017-00862 (Patent 6,665,725 B1)
`Case IPR2017-00450 (Patent 6,771,646 B1)
`Case IPR2017-00451 (Patent 6,839,751 B1)
`Case IPR2017-00629 (Patent 6,954,789 B2)
`Case IPR2017-00630 (Patent 6,954,789 B2)
`
`Regardless of whether Petitioner’s arguments on rehearing were
`
`presented sufficiently in the Petition, we agree with Patent Owner as to the
`merits of those arguments, and are not persuaded that we misapprehended or
`overlooked any matters in rendering our Decision. In particular, Petitioner’s
`rehearing arguments conflate the terms “application” and “protocol.” See
`Opp. 9–15. Petitioner’s referencing of matching “IP addresses stored in
`each dialog record of the NFS dialog hash table” at best links a packet
`exchange between a server and a client using the NFS protocol, and not a
`packet exchange pertaining to specific application activity, as our
`interpretation of “conversational flows” requires. See Req. Reh’g 7 (quoting
`Ex. 1006 ¶ 89) (emphasis omitted). Other hash tables similarly would be
`populated with protocol-specific information (e.g., “FTP records in one
`table, . . . Telnet records in another table, TCP records in a further table”),
`but again, linking by protocol is not the same as linking by application. See
`Opp. 10–11.
`
`We find Patent Owner’s example of a single Skype application
`spawning multiple connections using different protocols, such as one audio
`protocol and one video protocol to be illustrative of the difference between
`Engle and the claimed invention. Id. at 12. In this scenario, and based on
`Petitioner’s arguments, Engel’s system would “put the audio protocol
`information in an appropriate hash table and the video information in a
`different table.” Id. Petitioner provides no explanation of how Engel would
`
`6
`
`
`
`Case IPR2017-00769 (Patent 6,651,099 B1)
`Case IPR2017-00862 (Patent 6,665,725 B1)
`Case IPR2017-00450 (Patent 6,771,646 B1)
`Case IPR2017-00451 (Patent 6,839,751 B1)
`Case IPR2017-00629 (Patent 6,954,789 B2)
`Case IPR2017-00630 (Patent 6,954,789 B2)
`
`recognize these hash tables as being related to the same application (i.e.,
`single Skype application). Id.
`We have reviewed all of Petitioner’s arguments in the Requests for
`Rehearing, and conclude that Petitioner has not carried its burden of
`demonstrating that we misapprehended or overlooked any matters argued in
`the Petitions and has not shown an abuse of discretion in the Decision
`denying institution of inter partes reviews in Cases IPR2017-00769,
`IPR2017-00862, IPR2017-00450, IPR2017-00451, IPR2017-00629, and
`IPR2017-00630.
`In consideration of the foregoing, it is hereby:
`ORDERED that Petitioner’s Requests for Rehearing are denied.
`
`
`
`7
`
`
`
`Case IPR2017-00769 (Patent 6,651,099 B1)
`Case IPR2017-00862 (Patent 6,665,725 B1)
`Case IPR2017-00450 (Patent 6,771,646 B1)
`Case IPR2017-00451 (Patent 6,839,751 B1)
`Case IPR2017-00629 (Patent 6,954,789 B2)
`Case IPR2017-00630 (Patent 6,954,789 B2)
`
`PETITIONER:
`Eric A. Buresh
`Mark C. Lang
`Kathleen D. Fitterling
`Abran J. Kean
`ERISE IP, P.A.
`eric.buresh@eriseip.com
`mark.lang@eriseip.com
`kathleen.fitterling@eriseip.com
`abran.kean@eriseip.com
`
`
`PATENT OWNER:
`Steven W. Hartsell
`Alexander E. Gasser
`SKIERMONT DERBY LLP
`packetintelligence@skiermontderby.com
`
`
`
`8
`
`