`
`EXHIBIT
`EXHIBIT
`1017
`1017
`
`
`
`
`
`
`
`Trials@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.,
`Petitioner,
`
`V.
`
`FATPIPE NETWORKSINDIA LIMITED,
`Patent Owner.
`
`Case IPR2016-00976
`Patent 6,775,235 B2
`
`Before STACEY G. WHITE, MICHELLE N. WORMMEESTER,and
`CHRISTAP. ZADO, Administrative Patent Judges.
`
`WHITE,Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314(a) and 37 C.F.R. § 42.108
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`A. Background
`
`I.
`
`INTRODUCTION
`
`Talari Networks, Inc. (“Petitioner”) filed a Petition (Paper 1, “Pet.”’”)
`
`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’’)
`
`filed a Preliminary Response.
`
`(Paper6, “Prelim. Resp.”). We have
`
`jurisdiction under 35 U.S.C. § 314(a), which provides that an inter partes
`
`review maynotbeinstituted “unless .
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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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`challengedin the petition.”
`
`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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`Reference(s) Basis|Claims Challenged
`
`
`Karol! § 102|4,5, 7-11, 14, and 19
`Karol and Stallings?|§ 103|5, 11-15, and 19
`5103|4,5, 7-15, and 19
`
`
`
`Our factual findings and conclusionsat this stage of the proceeding are
`
`based on the evidentiary record developed thusfar (prior to Patent Owner’s
`
`Response). This is not a final decision as to patentability of claims for
`
`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
`
`institute inter partes review of claims 4, 5, 7-15, and 19 of the ’235 patent.
`
`U.S. Patent No. 6,628,617 B1 (“Karol,” Ex. 1006).
`? William Stallings, Data and Computer Communications, Prentice-Hall, 5th
`Ed, 1997, ISBN-81-203-1240-6 (“Stallings,” Ex. 1011).
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`B. Related Proceedings
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`The parties inform us FatPipe, 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,
`
`Paper 5, 1—2. In addition, Petitioner seeks inter partes review ofa related
`
`patent, U.S. Patent No. 7,406,048 B2 (IPR2016-00977). Id.
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`C. The ’235 Patent
`
`The ’235 patent describes a system and method for communicating
`
`using two or more disparate networks in parallel. Ex. 1001, Abstract. For
`
`example, an embodimentof this system could be composedofa virtual
`
`private network (“VPN”) in parallel with a frame relay network. Jd. 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. Jd. at Abstract. An embodimentof this system is depicted in
`
`Figure 10, which is shown below.
`
`
`INTERNET 500
`
`ROUTER Z
`ROUTER X
`104
`104
`
`|
`[SITE B
`CONTROLLER]
`|CONTROLLER
`SITE A]
`102 ~|102__JA 602 B 602
`
`
`
`
`
`
`
`
`
`[ROUTER W
`105
`
`ROUTERY
`108
`|
`
`FRAME RELAY NETWORK 106
`Fig. 10
`
`Figure 10 depicts an example of the network topology described in the ’235
`
`patent. Jd. at 8:29-30. Twosites 102 transmit and/or receive data from one
`
`another. Jd. at 2:38-40. These sites are connected by two disparate
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`networks, Internet 500 and frame relay network 106. Jd. at 8:30-32. Each
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`location has framerelay router 105 and Internet router 104. Jd. at 8:32-33.
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`“Access to the disparate networksat site A andsite B is through an inventive
`
`controller 602 at each site.” Jd. at 6:34-36. Controller 602 “allows load-
`
`balancing, redundancy,or othercriteria 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.” Jd. at
`
`9:12-17.
`
`Figure 7 of the ’235 patent is reproduced below.
`
`MULTIPLE DISPARATE NETWORK ACCESS
`CONTROLLER 602
`SITE INTERFACE 702
`
`PACKET PATH SELECTOR (E.G., LOAD
`BALANCING, REDUNDANCY, SECURITY) 704
`
`
`
`INTERFACE
`INTERFACE]|INTERFACE
`706
`
`706 706
`
`
`TOA
`|,
`TOA
`TOA
`NETWORK
`NETWORK ||
`NETWORK
`BY PATH
`BY PATH
`/
`BY PATH
`
`
`
`
`A3
`
`
`
`
`At
`
`A2
`
`v
`
`Fig. 7
`
`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. Jd. at 10:60—63. Packet path
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`selector 704 is hardware or software that determines which path a given
`
`packetis to travel. Jd. at 11:2-6. The criteria used to determine which path
`
`a packet travels may be based on concerns such as redundancy,
`
`load-balancing, or security. Jd. at 11:9-63. Controller 602 also has two or
`
`more network interfaces 706 (at least one per each network for which
`
`controller 602 controls access). Jd. at 11:64-67.
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`D. Illustrative Claim
`
`Asnoted above,Petitioner challenges claims 4, 5, 7-15, and 19 of the
`
`°235 patent, of which claims 4, 5, and 19 are independent. Claim 5 is
`
`illustrative of the challenged claims and is reproduced below:
`
`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
`networksthat provide, when working, connectivity
`between a current location and at least one destination
`location;
`receiving at the current location a packet which identifies a
`particular destination location by specifying a destination
`address for the destination location;
`determining whetherthe destination address lies within a
`known location address range;
`selecting a network path from among pathsto disparate
`associated networks, said networksbeingin 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.
`
`Il. CLAIM CONSTRUCTION
`
`In an inter partes review,“[a] claim in an unexpired patent shall be
`
`given its broadest reasonable construction in light of the specification of the
`
`patent in whichit appears.” 37 C.F.R. § 42.100(b). Underthis standard, we
`
`construe claim terms using “the broadest reasonable meaning of the words in
`
`their ordinary usage as they would be understood by oneof ordinary skill in
`
`the art, taking into account whatever enlightenment by way of definitions or
`
`otherwise that may be afforded by the written description containedin the
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`applicant’s specification.” Jn re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
`
`1997).
`
`Petitioner and Patent Owner both decline to seek construction of any
`
`termsat this time. Pet. 8; Prelim. Resp. 8. We reviewedthe asserted
`
`grounds,and, for the purposesof this Decision, we have determinedthat no
`
`terms require express construction. See Vivid Techs., Inc. v. Am. Sci. &
`
`Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`
`II. ANALYSIS
`
`Weturn 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).
`
`A, Asserted Ground ofAnticipation over Karol
`
`Petitioner asserts that claims 4, 5, 7-11, 14, and 19 are anticipated by
`
`the disclosures of Karol. Pet. 10-30. Petitioner supports its arguments with
`
`a declaration from Dr. Kevin Negus. Ex. 1005. For the reasons described
`
`below we are persuaded that Petitioner has made a showingsufficient to
`
`satisfy the threshold of § 314(a) as to its asserted anticipation of claims4, 5,
`
`7-11, 14 and 19.
`
`1. Overview ofKarol
`
`Karolis directed to “the internetworking of connectionless(e.g.,
`
`Internet Protocol or ‘IP’) and connection oriented (e.g., ATM, MPLS,
`
`RSVP) networks.” Ex. 1006, 1:7—-10. Connectionless (“CL”) networks
`
`require no explicit connection setup prior to transmitting datagrams. Jd. at
`
`1:19—24. In contrast, connection oriented (“CO”) networks determine a
`
`route for the connection and allocate bandwidth resources alongthe 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 networksin a parallel configuration. Jd. at
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`4:12-14. Datagrams ultimately destined for endpoint 151 may be sent from
`
`source 101 to node 111 in CL network 110. Jd. at 4:39-40. The datagrams
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`may be routed overeither the CO or CL network in orderto arrive at
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`endpoint 151. Jd. at 4:40-43. CL-CO gateways 140 and 150 interconnect
`
`the CL and CO networksand“allow[] datagrams (sometimeshereinafter
`
`called messages) originated on the CL network to be transported .
`
`.
`
`. on the
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`CO network.” Jd. at 3:30—37. “When a datagram arrives at CL-CO gateway
`
`140 of FIG. 1, a determination is made if that packet should be carried by
`
`CO network 160.” Jd. at 5:23—-25. CL-CO gateway 140 is described in more
`
`detail in Figure 4, which is reproduced below.
`
`FIG. 4
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`Figure 4 illustrates the internal arrangements of CL-CO gateway 140. Jd. at
`
`6:31-32.
`
`Generally speaking, each CL-CO gatewayarranged 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,
`headertranslation and other information.
`Inputline cards 401
`and output line cards 402 connect the gateway of FIG.4 to
`external networks, such that datagrams received in inputline
`cards 401 can be directed either to CO switch 410 or CL
`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.
`
`Id. at 6:32-50. The elements depicted in Figure 4 are controlled by
`
`processor 430 and such control is implemented via programsstored in the
`
`processor. Jd. at 6:55—59. The routing procedures used by gateway 140
`
`may adjust routing dynamically “to divert connections away from
`
`overloadedcall processors.” Jd. at 17:64—67. In other words, routing “can
`
`be adjusted to reflect bandwidth availability.” Jd. at 18:1-2.
`
`2. Independent Claim 4
`
`Claim 4 recites a controller which controls access to multiple
`
`networks. Petitioner’s arguments as to independent claim 4 may be
`
`summarized as follows: Petitioner argues in the alternative that the claimed
`
`controller that provides access to multiple networks may be either Karol’s
`
`CL-CO gateway alone or the gateway in combination with one or more
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`routers or switches. Pet. 10-12. Ifthe controller is the gateway alone, then
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`Petitioner asserts that the site interface is disclosed by one or more of
`
`Karol’s input line cards 401 or the network connection depicted in Figure 1
`
`between source 101 and node 111. /d. at 12. If the controller is the gateway
`
`in combination with routers and/or switches, then Petitioner asserts the site
`
`interface is a network connection. Jd. According to Petitioner, Karol
`
`discloses at least two output line cards 402 that receive datagrams from the
`
`CO switch or CL router/switch and directs the datagrams to external
`
`networks. /d. at 12-13. Asto the packet path selector, Petitioner points to
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`Karol’s gateway processor, CL router/switch, CO switch, packet buffer,
`
`protocol converter and input line cards to disclose this element of the claim.
`
`Id. at 14. Petitioner asserts that these items work together in Karol to
`
`determine if a packet (“datagram’’) from a source should be forwarded to
`
`either the CL or CO network. Jd. Petitioner relies on Karol’s disclosure of
`
`routing datagrams based on “‘bandwidth availability’ that can be
`
`‘dynamically allocated to flows on an as-neededbasis’ and can ‘divert[]
`
`connections away from congested links.” Jd. at 15 (citing Ex. 1006, 17:18—
`
`26, 17:63—18:2; Ex. 1005 J 182). On the record before us, we find
`
`Petitioner’s arguments and evidence to be persuasive.
`
`Patent Ownerargues that Karol does not disclose the recited path
`
`selection factors (Prelim. Resp. 51), nor doesit disclose the selection of
`
`paths on a per packet basis (id. at 45). Patent Owner supports its contentions
`
`with a declaration from Joel Williams. Ex. 2001. We address each of Patent
`
`Owner’s arguments in turn.
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`Claim 4 recites, in relevantpart,
`
`a packet path selector which selects between network
`interfaces on a per-packet basis accordingto 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;
`
`Ex. 1001, 17:46—51. Patent Ownerasserts that Petitioner failed to establish
`
`that Karol discloses these three factors for path selection. Prelim. Resp. 51.
`
`Petitioner asserts that Karol’s gateway processor, CL router/switch, CO
`
`switch, packet buffer, protocol converter and input line cards disclose the
`
`packet path selector. Pet. 14. According to Petitioner, these elements
`
`“compare[] information in each packet received at the CL-CO gateway to
`
`determineif the packet will be routed to the CL or CO network interface
`
`outputline card.” Jd. at 15-16. Asto the three factors, Petitioner asserts
`
`that [1] Karol’s gateway processor comparesthe destination address of each
`
`received packet to fields in both the routing databases; [2] the gateway
`
`processor only forwards a packet to the CO network whena valid
`
`connection exists; and [3] forwarding occurs based upon the needsof a
`
`particular flow or to avoid congested links. Jd. at 16 (citing Ex. 1005
`
`4] 187-189).
`
`Patent Ownerdisputes Petitioner’s analysis of Karol and argues that
`
`the path selection is based on flows that have been predefined by service
`
`contracts and not the recited factors. Prelim. Resp. 51. It is Patent Owner’s
`
`contention that a node’s use of CL-CO gateway 140 to access the CO
`
`network is dependent upon pre-defined, user-specified service requirements.
`
`Id. at 14 (citing Ex. 1006, 5:34—57, 15:20—31, 16:3—-8). We note, however,
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`that Karolstates that “not all nodes of the CL network need to have the
`
`ability to make redirect decisions.” Ex. 1006, 2:33-34. Petitioner’s
`
`arguments are directed to the nodes that have been configuredto redirect
`
`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
`
`mode,or to redirect the traffic to a CO network.” Jd. at 2:16-19. These
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`gateways have “a processor containing logic for controlling the gateway
`
`packet handling operations.” Jd. at 2:26—28.
`
`Patent Ownerarguesthat the pre-set criteria used by Karol’s
`
`processors does not provide claimed dynamic routing. Prelim. Resp. 52.
`
`Karol describes, however, applying pre-set criteria in a dynamic fashion.
`
`One of Karol’s purported advantagesis that “bandwidth can be dynamically
`
`allocated to flows on an as-needed basis.” Ex. 1006, 17:25—26. Thus, on
`
`this record, we are persuaded that Petitioner has made a sufficient showing
`
`that Karol discloses the claimed packet path selection based on the recited
`
`factors.
`
`Patent Owneralso argues that Karol does not “select[] between
`
`network interfaces on a per-packet basis” as recited by claim 4. Prelim.
`
`Resp. 45. According to Patent Owner, “Karolrelies on routing decisions
`
`that were madefor a flow of datagrams” and notindividual packets. Jd. at
`
`47; see Ex. 1006, 15:29-30 (“user-specific routing then determines which
`
`user’s flows are sent to the CO network”). This argument, however, does
`
`not take into account Karol’s determinations that are made at the packet
`
`level. In Karol, “[w]hen a datagram arrives at a CO-CL gateway 140...a
`
`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 notall, traffic flows are
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`configured to access the CO network. Jd. at 5:25—27. Thus, one of the
`
`user-specified criteria to be evaluated is whether a particular packet is part of
`
`a traffic flow that may be redirected. Jd. at 5:24—37; see also id. at 7:42—46
`
`(discussing the flow database’s storage of“information used to determine
`
`how to handle packetsfromflows requiring connection oriented service”
`
`(emphasis added)). Patent Ownercites Figure 5 of Karol in support ofits
`
`argument. Prelim. Resp. 47. Step 503 of this Figure, however, examines
`
`whether“this is a packet from a flow that needs CO Service.” Ex. 1006, Fig.
`
`5. Thus, on this record, we are persuaded that Karol discloses examining
`
`packets to in order to select the network interface.
`
`On the current record, we are persuaded by Petitioner’s contention
`
`that independent claim 4 is anticipated by Karol. Thus, Petitioner has
`
`demonstrated a reasonable likelihood of prevailing on its assertion that
`
`independentclaim 4 is unpatentable over Karol.
`
`3. Independent Claim 5
`
`Claim 5 recites a method for combining connections for access to
`
`multiple parallel disparate networks. Petitioner’s allegations regarding
`
`independent claim 5 may be summarized as follows: Karol discloses
`
`multiple parallel disparate networks through its discussion of CL and CO
`
`networks. Pet. 17. Karol discloses obtaining at least two known location
`
`address ranges throughits discussion of routing tables. /d. at 17-18.
`
`Petitioner further asserts that Karol’s routing tables contain information
`
`about route topology and connectivity. Jd. at 19-21. Karol’s datagrams are
`
`relied upon to disclose a packet which identifies a particular destination
`
`location. Jd. at 21. Karol “compar[es] the destination IP address in each
`
`packet received at the CL-CO gateway to entries in the databasesto
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`determine if the destination address lies within the routing tables that include
`
`a known location address range for the destination location.” Jd. Petitioner
`
`argues in the alternative that Karol’s discussion of the CL-CO gateway alone
`
`or the gateway in combination with its associated routers and/or switches
`
`discloses the step of selecting a network path from among the disparate
`
`parallel CO and CL networks. Jd. at 22. In addition, Karol’s routing tables
`
`provide information as to the connectivity between the current location and
`
`the destination. Jd. On the record before us, we find Petitioner’s arguments
`
`and evidence to be persuasive.
`
`Patent Ownerargues that Karol does not disclose “obtaining at least
`
`two known location address ranges which have associated networks” and
`
`“determining whetherthe destination address lies within a known location
`
`address range.” Prelim. Resp. 38-39. Patent Owner argues that when
`
`Karol’s gatewaysredirect traffic to the CL network, the routing table is
`
`overridden and source routing is used in place of the routing table. Jd. at 39
`
`(citing Ex. 2001 {| 80-82). In support of its argument, Patent Ownercites a
`
`portion of Karol discussing the processing performedif the connection to the
`
`CO network has not yet been set up. See id. (citing Ex. 1006, 11:27-31,
`
`8:51-55). In this situation, a datagram may be placed in a packet buffer and
`
`then forwarded to the CL network using source routing. Ex. 1006, 11:21-—
`
`26. This, however, is not the only routing discussed in Karol, which also
`
`discloses “creating routing tables that enable data flow from the CL network
`
`to the CO network.” Jd. at 8:1-2. The routing tables used by the gateways
`
`may beeither generic or user-specific. Jd. at 16:3-9. These routing tables
`
`are maintainedat the gateways. Jd. at 14:50-51. The gateways use the
`
`information in these tables to “determine[] the shortest paths to IP
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`destinations by comparingits path on the two networks for each
`
`destination.” Jd. at 14:57-59. The gateway maintainsa list of the shortest
`
`paths in its routing table. /d. at 14:60—65. Thus, on this record, we are
`
`persuaded that Karol discloses the recited address ranges.
`
`On the current record, we are persuadedby Petitioner’s contention
`
`that independent claim 5 is anticipated by Karol. Thus, Petitioner has
`
`demonstrated a reasonable likelihood of prevailing on its assertion that
`
`independent claim 5 is unpatentable over Karol.
`
`4. Independent Claim 19
`
`Similar to claim 5, independent claim 19 also is directed to combining
`
`connections for access to parallel networks. Manyof Petitioner’s
`
`contentions are similar to the contentions discussed above in regards to
`
`claims 4 and 5. Compare Pet. 59-60 (contentions regarding claim 19) with
`
`id. at 42-52 (contentions regarding claims 4 and 5). For the purposeof
`
`brevity, we focus our discussion here on a few limitations that we believe
`
`merit additional discussion.
`
`Claim 19 recites, in relevant part, “a packet path selector which
`
`selects between the network interfaces on a per-session basis to promote
`
`load-balancing.” Petitioner points out that one of Karol’s purported
`
`“advantage[s] to a service provideris that bandwidth utilization in a
`
`packet-switched CO networkis better than in a CL network with
`
`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;
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`Ex. 1005 § 449). Patent Ownerasserts 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 networkas the faster,
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`preferred network and that the gateway should use the CO networkifit is
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`available. Jd. at 27 (citing Ex. 2001 § 60). Mr. Williamstestifies that CO
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`connections are shown asfaster and thus, the system does not balance
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`between the networksbecause it favors the CO network. Ex. 2001 4 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 networkis “based on
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`user-specified service requirements andthe 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 whetherto redirect packets.
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`On the record before us, we are persuaded that Karol teachesorat least
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`suggests the recited load balancing. Wefind 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 overloadedcall 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 persuadedthat Petitioner made a sufficient showingin regardsto 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 messageto 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 contendsthat this is a feature that
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`improvesthe 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. Jd. at 4:11—29. On
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`this record, we are persuadedthat Petitioner has made a sufficient
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`preliminary showingthat 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 ofPetitioner’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 makescertain 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 further 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 persuadedby 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 onits
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`assertion that dependent claims 7—11 and 14 are unpatentable.
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`Forall of the foregoing reasons, weinstitute 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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`obviousoverthe 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
`
`its contention that the challenged claim limitations would have been obvious
`
`over the disclosures of Karol. For example, Petitioner explains how Karol,
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`when viewedin conjunction with knowledge of one of ordinary skill in the
`
`art, would have taught the limitations of claim 4 even if this Board construed
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`the term “private network” to mean “a framerelay or point-to-point
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`network.” Jd. at 42. We decline to construe this term becauseit 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 ofthis decision, we do not need an explicit construction of
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`the scope and meaning ofthis 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 overthis 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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`networksat least in part on the basis of load balancing “whichtendsto
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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. Negusasserts
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`that these claims were obvious over Karol and the knowledgeof 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 balanceline loads and network loads. Ex. 1005 4] 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 ofpriorart
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`elements according to known methodsto yield predictable results.” Pet. 58
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`(citing Ex. 1005 J 410, 417). Dr. Negustestifies that routing based on
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`security criterion was known in the art and it would have been obviousto 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 {9 417, 420.
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`Weare persuadedthat Petitioner has made a sufficient showing as to
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`the asserted obviousnessof claims 4, 5, 7-15, and 19. Patent Ownerputs
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`forth the same arguments regarding the alleged insufficiency ofPetitioner’s
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`arguments and evidenceasit did with respectto ---, 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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`becauseit 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 maystate as many separate claims or defensesasit 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 whyits
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`challenges should succeed underdifferent possible claim constructions.
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`Second, Patent Ownerarguesthat 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. Jd. We disagree. On the current record, we are persuadedthat
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`Petitioner articulates a reasonable rationale as to how and whyone of
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`ordinary skill in the art would have modified Karol in a mannerthat 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 rangesrecited in claim 5. Prelim. Resp. 41-44. This argumentis
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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 abovein Section II.A.3, this is not the portion of
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`Karol thatis 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 argumentsas to this claim.
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`Forall of the foregoing reasons, weinstitute inter partes review of
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`claims 4, 5, 7-15, and 19 on the asserted ground of obviousnessoverthe
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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 sys
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