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`EXHIBIT
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`EXHIBIT
`1017
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`1017
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`Tria1s@uspto. gov
`571.272.7822
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`Paper No. 7
`Filed: November 2, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TALARI NETWORKS, INC.,
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`Petitioner,
`
`V.
`
`FATPIPE NETWORKS INDIA LIMITED,
`Patent Owner.
`
`Case IPR2016-00976
`
`Patent 6,775,235 B2
`
`Before STACEY G. WHITE, MICHELLE N. WORMMEESTER, and
`CHRISTA P. ZADO, Administrative Patent Judges.
`
`WHITE, Administrative Patent Judge.
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`DECISION
`
`Institution of Inter Partes Review
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`35 U.S.C. § 3I4(a) and 37 C.F.R. § 42.108
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`IPR2016-00976
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`Patent 6,775,235 B2
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`A. Background
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`I.
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`INTRODUCTION
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`Talari Networks, Inc. (“Petitioner”) filed a Petition (Paper 1, “Pet.”)
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`seeking to institute an inter partes review of claims 4, 5, 7-15, and 19 of
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`U.S. Patent No. 6,775,235 B2 (Ex. 1001, “the ’235 patent”) pursuant to
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`35 U.S.C. §§ 311-319. FatPipe Networks India Limited. (“Patent Owner”)
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`filed a Preliminary Response. (Paper 6, “Prelim. Resp.”). We have
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`jurisdiction under 35 U.S.C. § 314(a), which provides that an inter partes
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`review may not be instituted “unless .
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`.
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`. there is a reasonable likelihood that
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`the petitioner would prevail with respect to at least 1 of the claims
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`challenged in the petition.”
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`Petitioner contends the challenged claims are unpatentable under
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`35 U.S.C. §§ 102 and 103 on the following specific grounds (Pet. 10-60):
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`§ 102
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`Karoll
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`Karol
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`4, 5, 7-11, 14, and 19 Karol and Stallingsz
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`§ 103
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`5, 11-15, and 19
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`§ 103
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`4, 5, 7-15, and 19
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`Our factual findings and conclusions at this stage of the proceeding are
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`based on the evidentiary record developed thus far (prior to Patent Owner’s
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`Response). This is not a final decision as to patentability of claims for
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`which inter partes review is instituted. Our final decision will be based on
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`the record as fully developed during trial. For reasons discussed below, we
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`institute inter partes review of claims 4, 5, 7-15 , and 19 of the ’235 patent.
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`1 U.S. Patent No. 6,628,617 B1 (“Karol,” EX. 1006).
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`2 William Stallings, Data and Computer Communications, Prentice-Hall, 5th
`Ed, 1997, ISBN-81-203-1240-6 (“Stallings,” Ex. 1011).
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`2
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`B. Related Proceedings
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`The parties inform us FatPz'pe, Inc. v. Talari Networks, Inc., No.
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`5:16-CV-54-BO (E.D.N.C.), may be impacted by this proceeding. Pet. 1,
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`Paper 5, 1-2. In addition, Petitioner seeks inter partes review of a related
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`patent, U.S. Patent No. 7,406,048 B2 (IPR2016-00977). Id.
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`C. The ’235 Patent
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`The ’235 patent describes a system and method for communicating
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`using two or more disparate networks in parallel. Ex. 1001, Abstract. For
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`example, an embodiment of this system could be composed of a virtual
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`private network (“VPN”) in parallel with a frame relay network. Id. at 1:19-
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`24. These parallel networks back each other up in case of failure and when
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`both networks are operational their loads are balanced between the parallel
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`networks. Id. at Abstract. An embodiment of this system is depicted in
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`Figure 10, which is shown below.
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`
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`Figure 10 depicts an example of the network topology described in the ’235
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`patent. Id. at 8:29-30. Two sites 102 transmit and/or receive data from one
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`another. Id. at 2:38-40. These sites are connected by two disparate
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`networks, Internet 500 and frame relay network 106. Id. at 8:30-32. Each
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`location has frame relay router 105 and Internet router 104. Id. at 8:32-33.
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`“Access to the disparate networks at site A and site B is through an inventive
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`controller 602 at each site.” Id. at 6:34-36. Controller 602 “allows load-
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`balancing, redundancy, or other criteria to be used dynamically, on a
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`granularity as fine as packet-by-packet, to direct packets to an Internet router
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`and/or frame relay/point-to-point router according to the criteria.” Id. at
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`9: 12-17.
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`Figure 7 of the ’235 patent is reproduced below.
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`
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`Figure 7 depicts controller 602. Id. at 10:59-60. Controller 602 is
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`connected to site 102 via site interface 702. Id. at 10:60-63. Packet path
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`selector 704 is hardware or software that determines which path a given
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`packet is to travel. Id. at 1122-6. The criteria used to determine which path
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`a packet travels may be based on concerns such as redundancy,
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`load-balancing, or security. Id. at 11:9-63. Controller 602 also has two or
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`more network interfaces 706 (at least one per each network for which
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`controller 602 controls access). Id. at 11:64-67.
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`D. Illustrative Claim
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`As noted above, Petitioner challenges claims 4, 5, 7-15, and 19 of the
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`’235 patent, of which claims 4, 5, and 19 are independent. Claim 5 is
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`illustrative of the challenged claims and is reproduced below:
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`5. A method for combining connections for access to multiple
`parallel disparate networks, the method comprising the
`steps of:
`obtaining at least two known location address ranges which
`have associated networks;
`obtaining topology information which specifies associated
`networks that provide, when working, connectivity
`between a current location and at least one destination
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`location;
`receiving at the current location a packet which identifies a
`particular destination location by specifying a destination
`address for the destination location;
`determining whether the destination address lies within a
`known location address range;
`selecting a network path from among paths to disparate
`associated networks, said networks being in parallel at
`the current location, each of said networks specified in
`the topology information as capable of providing
`connectivity between the current location and the
`destination location;
`forwarding the packet on the selected network path.
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`II. CLAIM CONSTRUCTION
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`In an inter partes review, “[a] claim in an unexpired patent shall be
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`given its broadest reasonable construction in light of the specification of the
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`patent in which it appears.” 37 C.F.R. § 42.l00(b). Under this standard, we
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`construe claim terms using “the broadest reasonable meaning of the words in
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`their ordinary usage as they would be understood by one of ordinary skill in
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`the art, taking into account whatever enlightenment by way of definitions or
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`otherwise that may be afforded by the written description contained in the
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`applicant’s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
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`1997).
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`Petitioner and Patent Owner both decline to seek construction of any
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`terms at this time. Pet. 8; Prelim. Resp. 8. We reviewed the asserted
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`grounds, and, for the purposes of this Decision, we have determined that no
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`terms require express construction. See Vivid Techs., Inc. v. Am. Sci. &
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`Eng ’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
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`III. ANALYSIS
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`We turn to Petitioner’s asserted grounds of unpatentability to
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`determine whether Petitioner has met the threshold of 35 U.S.C. § 314(a).
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`A. Asserted Ground ofAnticipation over Karol
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`Petitioner asserts that claims 4, 5, 7-11, 14, and 19 are anticipated by
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`the disclosures of Karol. Pet. 10-30. Petitioner supports its arguments with
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`a declaration from Dr. Kevin Negus. Ex. 1005. For the reasons described
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`below we are persuaded that Petitioner has made a showing sufficient to
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`satisfy the threshold of § 314(a) as to its asserted anticipation of claims 4, 5,
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`7-11, 14 and 19.
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`1. Overview ofKarol
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`Karol is directed to “the intemetworking of connectionless (e.g.,
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`Internet Protocol or ‘IP’) and connection oriented (e.g., ATM, MPLS,
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`RSVP) networks.” Ex. 1006, 127-10. Connectionless (“CL”) networks
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`require no explicit connection setup prior to transmitting datagrams. Id. at
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`1:19-24. In contrast, connection oriented (“CO”) networks determine a
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`route for the connection and allocate bandwidth resources along the route.
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`Id. at 1:31-39. Figure 1 of Karol is reproduced below.
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`Figure 1 depicts CO and CL networks in a parallel configuration. Id. at
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`4: 12-14. Datagrams ultimately destined for endpoint 151 may be sent from
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`source 101 to node 111 in CL network 110. Id. at 4:39-40. The datagrams
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`may be routed over either the CO or CL network in order to arrive at
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`endpoint 151. Id. at 4:40-43. CL-CO gateways 140 and 150 interconnect
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`the CL and CO networks and ‘‘allow[] datagrams (sometimes hereinafter
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`called messages) originated on the CL network to be transported .
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`.
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`. on the
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`CO network.” Id. at 3:30-37. “When a datagram arrives at CL-CO gateway
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`140 of FIG. 1, a determination is made if that packet should be carried by
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`CO network 160.” Id. at 5:23-25. CL-CO gateway 140 is described in more
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`detail in Figure 4, which is reproduced below.
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`Figure 4 illustrates the internal arrangements of CL-CO gateway 140. Id. at
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`6:3 1-32.
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`Generally speaking, each CL-CO gateway arranged in
`accordance with the present invention includes hardware and
`software modules that typically comprise (a) a switch fabric for
`CO networking, shown in FIG. 4 as CO switch 410, (b) a CL
`packet forwarding engine, shown in FIG. 4 as CL router/switch
`420, (c) a protocol converter 450, (d) a moderately sized
`packet buffer 440 for temporarily storing packets waiting for
`CO network setup or turnaround; and (e) a processor 430 and
`associated database 431 for controlling the gateway packet
`handling operations and for storing forwarding, flow control,
`header translation and other information. Input line cards 401
`and output line cards 402 connect the gateway of FIG. 4 to
`external networks, such that datagrams received in input line
`cards 401 can be directed either to CO switch 410 or CL
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`router/switch 420, and such that output line cards 402 can
`receive datagrams from either of the last mentioned elements
`and direct them to external networks.
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`Id. at 6232-50. The elements depicted in Figure 4 are controlled by
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`processor 430 and such control is implemented via programs stored in the
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`processor. Id. at 6:55-59. The routing procedures used by gateway 140
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`may adjust routing dynamically “to divert connections away from
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`overloaded call processors.” Id. at 17:64-67. In other words, routing “can
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`be adjusted to reflect bandwidth availability.” Id. at 18:1-2.
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`2. Independent Claim 4
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`Claim 4 recites a controller which controls access to multiple
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`networks. Petitioner’s arguments as to independent claim 4 may be
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`summarized as follows: Petitioner argues in the alternative that the claimed
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`controller that provides access to multiple networks may be either Karol’s
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`CL-CO gateway alone or the gateway in combination with one or more
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`routers or switches. Pet. 10-12. If the controller is the gateway alone, then
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`Petitioner asserts that the site interface is disclosed by one or more of
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`Karol’s input line cards 401 or the network connection depicted in Figure 1
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`between source 101 and node 111. Id. at 12. If the controller is the gateway
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`in combination with routers and/or switches, then Petitioner asserts the site
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`interface is a network connection. Id. According to Petitioner, Karol
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`discloses at least two output line cards 402 that receive datagrams from the
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`CO switch or CL router/switch and directs the datagrams to external
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`networks. Id. at 12-13. As to the packet path selector, Petitioner points to
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`Karol’s gateway processor, CL router/switch, CO switch, packet buffer,
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`protocol converter and input line cards to disclose this element of the claim.
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`Id. at 14. Petitioner asserts that these items work together in Karol to
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`determine if a packet (“datagram”) from a source should be forwarded to
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`either the CL or CO network. Id. Petitioner relies on Karol’s disclosure of
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`routing datagrams based on “‘bandwidth availability’ that can be
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`‘dynamically allocated to flows on an as-needed basis’ and can ‘divert[]
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`connections away from congested links.” Id. at 15 (citing Ex. 1006, 17:18-
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`26, 17:63—l8:2; Ex. 1005 1] 182). On the record before us, we find
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`Petitioner’s arguments and evidence to be persuasive.
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`Patent Owner argues that Karol does not disclose the recited path
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`selection factors (Prelim. Resp. 51), nor does it disclose the selection of
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`paths on a per packet basis (id. at 45). Patent Owner supports its contentions
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`with a declaration from Joel Williams. Ex. 2001. We address each of Patent
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`Owner’s arguments in turn.
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`Claim 4 recites, in relevant part,
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`a packet path selector which selects between network
`interfaces on a per-packet basis according to at least:
`[1] a destination of the packet,
`[2] an optional presence of alternate paths to that
`destination, and
`[3] at least one specified criterion for selecting between
`alternate paths when such alternate paths are present;
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`Ex. 1001, 17:46-51. Patent Owner asserts that Petitioner failed to establish
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`that Karol discloses these three factors for path selection. Prelim. Resp. 51.
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`Petitioner asserts that Karol’s gateway processor, CL router/switch, CO
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`switch, packet buffer, protocol converter and input line cards disclose the
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`packet path selector. Pet. 14. According to Petitioner, these elements
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`“compare[] information in each packet received at the CL-CO gateway to
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`determine if the packet will be routed to the CL or CO network interface
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`output line card.” Id. at 15-16. As to the three factors, Petitioner asserts
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`that [1] Karol’s gateway processor compares the destination address of each
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`received packet to fields in both the routing databases; [2] the gateway
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`processor only forwards a packet to the CO network when a valid
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`connection exists; and [3] forwarding occurs based upon the needs of a
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`particular flow or to avoid congested links. Id. at 16 (citing Ex. 1005
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`111] 1 87-1 89).
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`Patent Owner disputes Petitioner’s analysis of Karol and argues that
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`the path selection is based on flows that have been predefined by service
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`contracts and not the recited factors. Prelim. Resp. 51. It is Patent Owner’s
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`contention that a node’s use of CL-CO gateway 140 to access the CO
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`network is dependent upon pre-defined, user-specified service requirements.
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`Id. at 14 (citing Ex. 1006, 5:34-57, 15:20-31, 16:3—8). We note, however,
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`that Karol states that “not all nodes of the CL network need to have the
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`ability to make redirect decisions.” Ex. 1006, 2:33-34. Petitioner’s
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`arguments are directed to the nodes that have been configured to redirect
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`traffic to a CO network. These nodes connect to CL-CO gateways wherein
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`“decisions [are] made whether to continue carrying the information in CL
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`mode, or to redirect the traffic to a CO network.” Id. at 2:16-19. These
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`gateways have “a processor containing logic for controlling the gateway
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`packet handling operations.” Id. at 2:26-28.
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`Patent Owner argues that the pre-set criteria used by Karol’s
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`processors does not provide claimed dynamic routing. Prelim. Resp. 52.
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`Karol describes, however, applying pre-set criteria in a dynamic fashion.
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`One of Karol’s purported advantages is that “bandwidth can be dynamically
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`allocated to flows on an as-needed basis.” Ex. 1006, 17:25-26. Thus, on
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`this record, we are persuaded that Petitioner has made a sufficient showing
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`that Karol discloses the claimed packet path selection based on the recited
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`factors.
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`Patent Owner also argues that Karol does not “select[] between
`
`network interfaces on a per-packet basis” as recited by claim 4. Prelim.
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`Resp. 45. According to Patent Owner, “Karol relies on routing decisions
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`that were made for a flow of datagrams” and not individual packets. Id. at
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`47; see Ex. 1006, 15:29-30 (“user-specific routing then determines which
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`user’s flows are sent to the CO networ ”). This argument, however, does
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`not take into account Karol’s determinations that are made at the packet
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`level. In Karol, “[w]hen a datagram arrives at a CO-CL gateway 140 .
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`.
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`. a
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`determination is made if that packet should be carried by CO network 160.”
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`Ex. 1006, 5:23-25 (emphasis added). Some, but not all, traffic flows are
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`configured to access the CO network. Id. at 5:25-27. Thus, one of the
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`user-specified criteria to be evaluated is whether a particular packet is part of
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`a traffic flow that may be redirected. Id. at 5:24-37; see also id. at 7:42-46
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`(discussing the flow database’s storage of “information used to determine
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`how to handle packets from flows requiring connection oriented service”
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`(emphasis added)). Patent Owner cites Figure 5 of Karol in support of its
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`argument. Prelim. Resp. 47. Step 503 of this Figure, however, examines
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`whether “this is a packet from a flow that needs CO Service.” Ex. 1006, Fig.
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`5. Thus, on this record, we are persuaded that Karol discloses examining
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`packets to in order to select the network interface.
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`On the current record, we are persuaded by Petitioner’s contention
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`that independent claim 4 is anticipated by Karol. Thus, Petitioner has
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`demonstrated a reasonable likelihood of prevailing on its assertion that
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`independent claim 4 is unpatentable over Karol.
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`3. Independent Claim 5
`
`Claim 5 recites a method for combining connections for access to
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`multiple parallel disparate networks. Petitioner’s allegations regarding
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`independent claim 5 may be summarized as follows: Karol discloses
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`multiple parallel disparate networks through its discussion of CL and CO
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`networks. Pet. 17. Karol discloses obtaining at least two known location
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`address ranges through its discussion of routing tables. Id. at 17-18.
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`Petitioner further asserts that Karol’s routing tables contain information
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`about route topology and connectivity. Id. at 19-21. Karol’s datagrams are
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`relied upon to disclose a packet which identifies a particular destination
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`location. Id. at 21. Karol “compar[es] the destination IP address in each
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`packet received at the CL-CO gateway to entries in the databases to
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`determine if the destination address lies within the routing tables that include
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`a known location address range for the destination location.” Id. Petitioner
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`argues in the alternative that Karol’s discussion of the CL-CO gateway alone
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`or the gateway in combination with its associated routers and/or switches
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`discloses the step of selecting a network path from among the disparate
`
`parallel CO and CL networks. Id. at 22. In addition, Karol’s routing tables
`
`provide information as to the connectivity between the current location and
`
`the destination. Id. On the record before us, we find Petitioner’s arguments
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`and evidence to be persuasive.
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`Patent Owner argues that Karol does not disclose “obtaining at least
`
`two known location address ranges which have associated networks” and
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`“determining whether the destination address lies within a known location
`
`address range.” Prelim. Resp. 38-39. Patent Owner argues that when
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`Karol’s gateways redirect traffic to the CL network, the routing table is
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`overridden and source routing is used in place of the routing table. Id. at 39
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`(citing Ex. 2001 111] 80-82). In support of its argument, Patent Owner cites a
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`portion of Karol discussing the processing performed if the connection to the
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`CO network has not yet been set up. See id. (citing Ex. 1006, 11:27-31,
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`8:51-55). In this situation, a datagram may be placed in a packet buffer and
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`then forwarded to the CL network using source routing. Ex. 1006, 11:21-
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`26. This, however, is not the only routing discussed in Karol, which also
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`discloses “creating routing tables that enable data flow from the CL network
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`to the CO network.” Id. at 8: 1-2. The routing tables used by the gateways
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`may be either generic or user-specific. Id. at 16:3-9. These routing tables
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`are maintained at the gateways. Id. at 14:50-51. The gateways use the
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`information in these tables to “determine[] the shortest paths to IP
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`destinations by comparing its path on the two networks for each
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`destination.” Id. at 14:57-59. The gateway maintains a list of the shortest
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`paths in its routing table. Id. at 14:60-65. Thus, on this record, we are
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`persuaded that Karol discloses the recited address ranges.
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`On the current record, we are persuaded by Petitioner’s contention
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`that independent claim 5 is anticipated by Karol. Thus, Petitioner has
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`demonstrated a reasonable likelihood of prevailing on its assertion that
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`independent claim 5 is unpatentable over Karol.
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`4. Independent Claim 19
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`Similar to claim 5, independent claim 19 also is directed to combining
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`connections for access to parallel networks. Many of Petitioner’s
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`contentions are similar to the contentions discussed above in regards to
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`claims 4 and 5. Compare Pet. 59-60 (contentions regarding claim 19) with
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`id. at 42-52 (contentions regarding claims 4 and 5). For the purpose of
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`brevity, we focus our discussion here on a few limitations that we believe
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`merit additional discussion.
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`Claim 19 recites, in relevant part, “a packet path selector which
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`selects between the network interfaces on a per-session basis to promote
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`load-balancing.” Petitioner points out that one of Karol’s purported
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`“advantage[s] to a service provider is that bandwidth utilization in a
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`packet-switched CO network is better than in a CL network with
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`precomputed routes since bandwidth can be dynamically allocated to flows
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`on an as-needed basis. ” Pet. 27-28 (citing Ex. 1006, 17:18-26, 17:63-18:2;
`
`Ex. 1005 11 449). Patent Owner asserts that load balancing is not taught by
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`Karol because the CO is the preferred network. Prelim. Resp. 25.
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`According to Patent Owner, Karol describes the CO network as the faster,
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`preferred network and that the gateway should use the CO network if it is
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`available. Id. at 27 (citing Ex. 2001 1] 60). Mr. Williams testifies that CO
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`connections are shown as faster and thus, the system does not balance
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`between the networks because it favors the CO network. Ex. 2001 11 60.
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`On this record, we disagree with Patent Owner’s analysis of Karol.
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`The decision whether to setup a connection to a CO network is “based on
`
`user-specified service requirements and the traffic situation in the CL and
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`CO networks.” Ex. 1006, 5:35-38 (emphasis added). Thus, Karol describes
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`the network load as being part of the decision whether to redirect packets.
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`On the record before us, we are persuaded that Karol teaches or at least
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`suggests the recited load balancing. We find persuasive Petitioner’s
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`assertion that Karol teaches load balancing through its discussion of
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`diverting connections away from overloaded call processors and diverting
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`connections away from congested links. Ex. 1006, 17:65-18:2. Thus, we
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`are persuaded that Petitioner made a sufficient showing in regards to this
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`limitation.
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`Claim 19 also recites that “the controller sends different packets of a
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`given message to different parallel networks.” Petitioner asserts that this is
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`disclosed by Karol’s description of sending datagrams over both the CO and
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`CL networks. Pet. 29. Patent Owner contends that this is a feature that
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`improves the security of transmissions by individually routing packets on at
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`least two different networks. Prelim. Resp. 34-35. As discussed above,
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`Petitioner has shown sufficiently that routing decisions are made on a per
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`packet basis. See § II.A.2. Karol states that “data can be allowed to flow
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`simultaneously through the CL and CO networks if both networks meet the
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`user’s needs.” Ex. 1006, 5:54-57. In addition, Karol states that datagrams
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`are routed through the CL network using “source routing until the [CO]
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`connection is set up” and then datagrams from that flow may be transmitted
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`via the newly established connection to the CO network. Id. at 4:11-29. On
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`this record, we are persuaded that Petitioner has made a sufficient
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`preliminary showing that Karol anticipates claim 19.
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`5. Analysis ofDependent Claims
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`Petitioner contends claims 7-11 and 14, which depend from claim 5,
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`are anticipated by Karol. Pet. 22-27. Based on our review of Petitioner’s
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`explanations and supporting evidence, we are persuaded that Petitioner has
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`demonstrated a reasonable likelihood of prevailing on its assertions that
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`claims 7-11 and 14 are anticipated. Patent Owner makes certain arguments
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`directed to claim 9 (Prelim. Resp. 45-51 (no per packet analysis)) and claim
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`11 (id. at 25-33 (no load balancing)). Patent Owner’s assertions regarding
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`claim 9 need no fiirther discussion in light of our discussion of the same
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`arguments as applied to claims 4 and 19. See §§ II.A.2, II.A.4.
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`On the current record, we are persuaded by Petitioner’s contention
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`that dependent claims 7-11 and 14 are anticipated by Karol. Thus,
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`Petitioner has demonstrated a reasonable likelihood of prevailing on its
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`assertion that dependent claims 7-11 and 14 are unpatentable.
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`For all of the foregoing reasons, we institute inter partes review of
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`claims 4, 5, 7-11, 14, and 19 on the asserted ground of anticipation over the
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`disclosures of Karol.
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`B. Asserted Obviousness over Karol
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`Petitioner asserts that claims 4, 5, 7-15, and 19 would have been
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`obvious over the teachings of Karol. Pet. 42-60. Petitioner supports its
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`arguments with a declaration from Dr. Negus. Ex. 1005. For the reasons
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`described below, we are persuaded that Petitioner has made a showing
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`sufficient to satisfy the threshold of § 314(a) as to its asserted obviousness of
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`claims 4, 5, 7-15, and 19.
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`Petitioner relies upon similar disclosures from Karol in support of
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`both its asserted anticipation and obviousness grounds for claims 4, 5, 7-11,
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`14, and 19. Compare Pet. 10-30 (asserted anticipation) with id. at 42-60
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`(asserted obviousness). Petitioner provides additional argument to support
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`its contention that the challenged claim limitations would have been obvious
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`over the disclosures of Karol. For example, Petitioner explains how Karol,
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`when viewed in conjunction with knowledge of one of ordinary skill in the
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`art, would have taught the limitations of claim 4 even if this Board construed
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`the term “private networ ” to mean “a frame relay or point-to-point
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`network.” Id. at 42. We decline to construe this term because it is at least as
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`broad as the possible construction discussed in regards to this ground, and,
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`for the purposes of this decision, we do not need an explicit construction of
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`the scope and meaning of this term.
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`Claims 12, 13, and 15 were not asserted to be anticipated by Karol,
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`but they are asserted to be obvious over this reference. Pet. 56, 58-59.
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`Claims 12 and 13 respectively depend from claims 5 and 11. Claims 12 and
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`13 are directed to load balancing. Claim 12 recites selecting between
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`networks at least in part on the basis of load balancing “which tends to
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`balance line load by distributing packets between lines.” Claim 13 is similar
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`to claim 12, but it recites load balancing “which tends to balance network
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`load by distributing packets between disparate networks.” Dr. Negus asserts
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`that these claims were obvious over Karol and the knowledge of one of
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`ordinary skill in the art because the routing procedures used at the time tend
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`to balance line loads and network loads. Ex. 1005 111] 365, 382.
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`Claim 15 depends from claim 5 and further recites that the “selecting
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`step selects the network path at least in part on the basis of a security
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`criterion.” Petitioner asserts that “implementing a security criterion in Karol
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`would have amounted to nothing more than the use of a known technique to
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`improve similar methods in the same way or the combination of prior art
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`elements according to known methods to yield predictable results.” Pet. 58
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`(citing Ex. 1005 111] 410, 417). Dr. Negus testifies that routing based on
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`security criterion was known in the art and it would have been obvious to try
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`the use of security based criterion in order to avoid links with inadequate
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`security. Ex. 1005 1111 417, 420.
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`We are persuaded that Petitioner has made a sufficient showing as to
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`the asserted obviousness of claims 4, 5, 7-15, and 19. Patent Owner puts
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`forth the same arguments regarding the alleged insufficiency of Petitioner’s
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`arguments and evidence as it did with respect to ---, with a few additional
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`points. The points that we believe merit additional discussion are addressed
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`below.
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`First, Patent Owner argues that this asserted ground is defective
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`because it relies on alternative constructions. Prelim. Resp. 56-59.
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`Alternative legal arguments, however, are permissible under Federal Rule of
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`Civil Procedure § 8(d). See FRCP § 8(d)(2) (allowing “2 or more statements
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`of a claim of defense alternatively or hypothetically”); see also id. at
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`§ 8(d)(2) (“A party may state as many separate claims or defenses as it has,
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`regardless of consistency”). Such arguments applying different potential
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`constructions to the asserted challenges are proper and could be helpful if
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`they provide us with the benefit of Petitioner’s arguments as to why its
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`challenges should succeed under different possible claim constructions.
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`Second, Patent Owner argues that Petitioner has not provided a proper
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`obviousness analysis. Prelim. Resp. 54-55. According to Patent Owner,
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`Petitioner merely provides conclusory statements that “it would have been
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`obvious to combine the knowledge of a POSITA” with the teachings of
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`Karol. Id. We disagree. On the current record, we are persuaded that
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`Petitioner articulates a reasonable rationale as to how and why one of
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`ordinary skill in the art would have modified Karol in a manner that would
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`have rendered the challenged claims obvious. See Pet. 45-46.
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`Third, Patent Owner argues that Karol teaches away from the two
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`address ranges recited in claim 5. Prelim. Resp. 41-44. This argument is
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`based on Patent Owner’s analysis of Karol’s disclosures related to the
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`routing of packets during the setup of the connection to the CO network.
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`See id. at 41-42. As noted above in Section II.A.3, this is not the portion of
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`Karol that is relied upon to teach this limitation. We disagree with Patent
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`Owner’s arguments regarding claim 5 and find persuasive Petitioner’s
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`evidence and arguments as to this claim.
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`For all of the foregoing reasons, we institute inter partes review of
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`claims 4, 5, 7-15, and 19 on the asserted ground of obviousness over the
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`disclosures of Karol.
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`C. Asserted Obviousness over Karol and Stallings
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`I. Overview ofStallings
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`Stallings is a book titled Data and Computer Communications. EX.
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`1011. Stallings is cited in the specification of Karol. Ex. 1006, 12:63-64.
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`Internet protocol (“IP”) is discussed in Stallings as a tool to provide
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`connectionless service between two networks. Ex. 1011, 534. Stallings
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`describes an example in which system A is transmitting a datagram to
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`system B and these systems are on different networks. Id. at 535. As part of
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`the routing of that datagram, the router may construct a new packet by
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`appending a header that includes the address of another router on a different
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`network. I