Trials@uspto.gov
`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.
`
`
`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
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
