Case 3:04-cv-03284-JSW Docunrent 73 Filed O2ll1,lOS Page 1of 24
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`MARK A. LAUER (tsarNo. 163756)
`THOI\,IAS W. LATHRAM (Bar No. 59639)
`T. LESTER WALLACE (BarNo. 159967)
`SILICON EDCE LAW GROUP, LLP
`6601 Kolll Center Parkway
`Suite 245
`Pleasanton, Califomia 94566,
`Telephone: 925-621-2114
`Facsimile: 925-621-2119
`
`Attorneys for Plaintiff
`Alacritech, Inc.
`
`LNITED STATES DISTRICT COIJRT
`
`NORTHERN DISTR.NCT OF CALIFORNIA
`
`SAN FRA.NCISCO DIVISION
`
`Case No.: CM-03284 JSW
`
`DECLARATION OF DR, KEVIN
`ALMER.OTHIN SUPPORT OF
`ALACRITECII'S REPI,Y TO
`N,trCR,OSOFT'S OPPOSITION TO
`ALACRITECH'S MOTION FOR
`PRELIMIT..{ARY INJUNCTNOI{
`
`Before the Honorab,le Jeffrey S. White
`Hearing Date: March 25, 2005
`Hearing Time: 9:00 a.m.
`Place: Coumoom 2, I 7'h F loor
`
`)) ) ))) )))) ) )l
`
`A,LACzuTECH, INC.,
`
`Plaintiff.
`
`v.
`
`MICROSOFT CORPOR,{TION,
`
`Defendant.
`
`I, Dr. Kevin Atrmerotfi, declare andl state as follows:
`
`Materials Reviewed
`
`In addition to the materirals reviewed as set forth in my prior declaration (Declaration
`
`Of Dr. Kevin Almeroth In Support Of Alacri,tech's Motion For Preliminary Injunction of
`
`DECLARATION OF DR. KEVIN ALIVMROIH 1
`IN SLIPPORT OF ALACR.ITECH'S REPLY TO
`MICROSOFT'S OPPOSITION TO ALACRITECH'S MOTION
`FOR PRELIMINARY I]NJLNCTION
`
`Case No. C04-03284 JSW
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`Case 3:04-cv-03284-JSW Document 73 Flled 021L1105 Page 2 of 24
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`Microsoft's trnfringement Of Claim 1 of U.S. Patent No. 6,697 ,&68 ),I have reviewed
`documents including the following:
`
`a. Second Revilsed Extribit A To Joilnt Claim Construction And Prehearing Statement
`
`Re Preliminary Injunction (the "Joint Claim Construction Statement").
`
`b. Defendant/Counterclaimant Microsoft Corporation's Opposition To Alacritech's
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`Motion For Preliminary Injunction ("Mircrosoft's Opposition").
`
`c. Declaratiom of James Pinkerton In Support Of Microsoft's Opposition To
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`Alacritech's Motion For Preliminary Injunction ("Chesson Deolaration").
`
`d. Declaration of Dr. Gregory L. Chesson In Support Of Microsoft's Opposition To
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`Alacritech's Motion For Preliminary lnjunction ("Chesson Deolaration").
`
`The "Microsoft Press Computer Dictionary", third edition, pg. 256, copyright
`
`e. Exhibits A-Q to the Chesson Declaration.
`f.
`199t7 , pages 254 - 256, 293,307, 383 (Exhibit A to this Declaration).
`C. U.S. Patent No. 6,141 ,705 to Anardl, et al. (Exhibit B to this Declaration).
`h.
`U.S. Patent No. 5,058,1 l0 to Beach et al. (Exhibit C to this Declaration)-
`i.
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`U.S. Patent No. 6,A34,961to Minami et al" (Exhibit D to this Declaration).
`
`Construction of Claim 1 of tbe'868 Patent
`
`l.
`ttre Joint Claim Construction Statement and find that construction to be reasonatrle. In
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`I have reviewed Alacritech's proposedl claim construction that irs set forth in
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`particular, I note that:
`
`A-
`2.
`
`Instruotions
`
`The term "instruction" (an "instruction" ofthe type that is "executable on a
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`prooessor") has a well-understood meaning in ttre electrical enginoering and computer
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`science arts. The '868 patent dliscloses a microprocessor as one example ofa "processor,"
`
`and rnore particlrlarly identirfies a Pentium as an example of a microprocessor. A Pentium is,
`
`DECLAR"A.TION OF DR, KEVIN AIMEROTH 2
`IN SLIPPORT OF ALACRITECH'S REPLY TO
`MICROSOFT'S OPPOSITION TO ALACRITECH'S MOTION
`FOR PR.ELIMINARY INJLINCTION
`
`Case No. C04-03284 JSW
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`Case 3:04-cv-03284-JSW Document 73 Filed A2177/O5 Page 3 of 24
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`however, just one example ofa microprocessor. There are many other examples of
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`rnicroprocessors. Each such microprocessor has its own "instruction set." The "instruction
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`set" of a microprooessor defines at a very detailed level each particular "instruction" that the
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`rnicroprocessor can execute and what tlhe mircroprocessor willl do when it executes that
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`instruotion. An "instruotion" ofthe type that oan be executed on a processor as tle term
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`"instruction" is used in Claim I ofthe '858 patent therefore has a very clear and well-
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`undlerstood meaning to one ofordinary skill in the art. One of ordiinary skill in the art, given
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`the type of microprocessor; would know to consult the "instruction set" ofthe
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`rnicroprocessor. From that instruction set, one ofordinary skill would be able to explain in
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`detail the exact form and effect of the "instructions" that are executable b,y the
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`rnicroprocessor.
`3.
`processor." Ifa "set ofinstructions" is "executable on a processor," then the processor must
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`The "setof instructions" of Clailm I ofthe'868 patent is "executable on a
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`have read the instructions or received the instructions from a processor-readable medium. It
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`is impossible for a processor to "execute" an instruction if the instruction only exists in the
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`abstract. The instruction has to be stored somewhere in order for the processor to be ablle to
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`obtain it, decode it, and execute it. That place where the instruction is stored must be a real-
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`worlld, processor-readable, tangible object, otherwise the processor would not be able to
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`obtain the instruction. The "set of irnstructions" of Claim 1 ofthe'868 patent that is
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`"executable on a processod' therefore is necessarily stored in a tangible media.
`
`B.
`A TCP Connection
`4. Microsoft proposes construing terrns of Claim 1 in a rnanner thart contradicts
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`the evidence and leads to confusion. For exarnple, Microsoft proposes construing "a TCF
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`connection" to mean: "A logical communication path idlentified by a pair ofsockets pursuant
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`to the Transmirssion Control Protocol." Suctr a logical path would extend across a network
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`and into a computer at both endpoints, each endpoint identified by an Internet Protocol (IP)
`
`DECLARATION OF DR. KEVI}i AIMEROTH 3
`IN ST]?PORT OF A,LACRITECH'S REPLY TO
`M]CROSOFT'S OPPOSITION TO ALACR]TECH'S MOTION
`FOR PRELIMINARY NJLINCTNON
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`Case No. C04-03284 Jsw
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`Case 3:04-cv-03284-JSW Document 73 Filed 02/L1l05 Page 4 al 24
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`address that specifies the computer's location on the network and a TCP port within thal
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`computer. Such a logical path could not be olfloaded frorn a processor to an intelligent TCP
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`o'ffload mechanism, as recited in Claim l, because for that connection the endpoints worLrld
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`not change and so the logical path would not change. Moreover, a logical path would not
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`involve a processor or an offload mochanism, because a logical pattr would not include
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`specific physical devices such as a partioullar network, router, processor or offload
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`mechanism. On the otherhand, I find that .Alacritech's constnuction ofa TCP connection as
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`a combirnation of inforrnation to be reasonable. because that hodv of infonmation can be
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`offloaded, i.e., transferred.
`5.
`
`Such a logilcal comrnunicatiron path would also seem to describe User
`
`Datagram Protocol (UDP), which is connectionless. A LIIDP port, like a TCP port, is simply a
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`number for an application tlrat is using UDP or TCP, respectively. Microsoft's proposed
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`oonstruction ofa logical path identified by endpoints thus ignores the main differentiation
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`between TCP and UDP, that TCF guarantees reliable transf,er ofdata by establishing a
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`connection, i.e., a body of information that a processing mechanisrn uses to manage
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`comrnunicatilon between applicatilons over a network.
`6.
`"sockets" has several rneanings in the network communications world. "Socketsl'or
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`Another problem with Microsoft's proposed construction is that the term
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`"Berkeley Sockets" is an application programming interfaoe (API) for appllications that use
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`various network protocol services, such as TCP/IP, instead of being part ofthe TCP,4F
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`protocol. I believe that Microsoft's proposed construction ofTCP connection to include the
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`word "sockets" leads to confusion rather than clarity. Even Miaroso'ft's expert Dr. Chesson
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`appears confused by these multiple meanings in his decllaration. referring in 'li fl 47, 48, 58,62
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`and his claim chart in $6 of his Decnaration to the functions sooket$ and connect0, which do
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`not refer to IP addresses and TCF ports but instead refer to the sockets A.PI that runs above
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`TCP.
`
`7. Moreover, Microsoft's proposed oonstruction would render the term following
`
`DECLARATION OF DR. KEVIN ALMEROTH 4
`IN SLPPORT OF ALACRITEC}N'S REPLY TO
`MICROSOFT'S OPPOSNT]ON TO ALACRITECH'S MOTION
`FOR PRELMINARY INJL]NCTION
`
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`Case 3:04-cv-03284-JSW Document 73 Filed 02/11i05 Page 5 of 24
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`"a llCP connection" superfluous. as it is simply a restatement of"identified by a pair of
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`sockets." In contrast, Alacritectr's proposed construction of"a TCP connection" is supported
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`by RFC 793 as welI as the intrinsic evidence, as demonstrated by Alacrirtech's citations in the
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`Second Revised Joi,nt Claim Construction Chart.
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`C. Establishine a TCP Connection
`8.
`connection" points to RFC 793 for support, but the pages i[ cites from ttre RFC do not
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`Similarly, Microsoft's proposedl construction of "establishing a TCP
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`contain the words "establish" or "establlishing," despite multiple references to establishing a
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`TCF connection elsewhere in the same document. See, e.g., RFC 793,pages4,l0, 11, 12,
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`2n. 27 , 30 and 3l .
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`D. Offloadine a TCP Connection from the Processor
`9. Moreover. Miorosoift's proposes to construe "offloading the TCP connection,
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`from the processor" to mean "allocating processing for the TCP connection frorn, the
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`prooessor," substituting 'pracessl'ttg for the TCP connection" in place of"the TCP
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`connection." Neither intrinsic nor extrinsic evidence supports such a rewriting ofthis
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`phrase" The disolosure cited by Alacritech in the Joint Claim Construction supports
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`Alacritech's proposedl construction ofoffloading a TCP connection.
`10. Microsoft's construction also fails to consider that ofllloading of other TCF
`processing was known at both the filing date and issue date ofthe '868 patent. For examplle,
`
`U.S. Patent No. 6,141,705 to A.nand! et al., which was considered during proseoution ofthe
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`'E68 patent, and discloses a peripheral hardware device and its driver that together can
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`offload other TCP processirng, states: "For ilnstanae, rnany NnCs are capable of independlently
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`performing tasks otherwise performed by tlre CPIU in software at an appropriate network
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`layer, such as oheqksum calculation/verification; data enoryption/decryption; message digest
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`calculation; TCF segmentation; and others." U.S. Patent No. 6,141,705, colurnn 2, lines 44-
`DECLARAION OF DR. KEVN ALMEROTII 5
`IN SLPPORT OT ALACRITECH'S REPLY TO
`MICR.OSOFI'S OPPOSITION TO AIACRITECH'S MOTION
`FOR PRELMINARY INJLNCTNON
`
`Case No. C04-03284 JSW
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`Case 3:04-cv-03284-JSW Docurnent 73 Filed 02/11/05 Page 6 of 24
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`48
`
`E.
`An Intenlisent TCP Offload Mechanism
`I L Microsoft's proposed construqtion of "an intelligent TCP offload mechanism"
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`also improperly reads limitations into the claim from the specification. Nowhere does
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`Anacritech's specification require that such a device be "capable ofprocessing the data
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`movement portion of the protocol slack withoal a.n! contro'l by the host." The intrinsic
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`evidence instead teaches tlat some parts ofdata path movemenl, such as receirpt of out-of-
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`ordler segments or fragmented segmenrts, and expiration of a rekansmission timer are
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`exception oonditions that are not processed by tlhe INIC/CPD. See, e.g., App. 60/ 061,809,
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`page 6, Iine 39 - page 7,line 2; th6'E68 patent, column 10, lines 35-39. Moreover, the
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`intrinsic evidence teaches that a conrxection that has been offloaded can be retrieved by the
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`host, firrther oontradicting the construction that the datapath movement is processed without
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`any control by the host. See, e.9.,'868 patent, colurnn 9, lines 64 - colurnn 10, line 2; App.
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`60i 061 ,809, page 26, lines 27-30.
`
`F.
`Intellisent
`12. I dirscuss the term "intelligent" in paragraphs 65-67 ofmy prior declaration.
`The paragraphs below suppllement that prior discussion.
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`13. The term "intelligent" is used to distinguish "drumb" in many contexts in the
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`electrical engineering and compurter science arts.
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`14. The "Microsoft Press Computer Dictionary". third edition, pg. 256, copyright
`tr 997, defines "irntolligent" as: Intelligent: adj. Of, pertaining to, or characteristic of a device
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`partially or totally controlled by one or more processors integral to the device.
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`15. The "Microsoft Press Computer Dictionary", third edition, pg.255, copyright
`11997, defines "irntelligence" as: lntelligence: n. l. The ability of hardware to process
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`DECLARATIOi{ OF DR. KEVIN ALMEROTH 6
`IN SLTPPORT OF AIACR.NTECH'S REPLY TO
`M]]CROSOFT'S OPPOSITNOh] TO AILACR]TECH'S MOTION
`FOR PR.ELIMINARY INJLTNCTION
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`Case 3:04-cv-03284-JSW Document 73 Filed O2lL1lA5 Paae 7 at 24
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`information. A device withorLrt intelligence is said to be dumb; for example, a dumb terminal
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`connected tro a computsr can receive input and displlay output but cannot process information
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`independently...."
`
`16. In the context of Cllaim I of the '868 patent and its prosecrution history, it is my
`opinion that "inlelligent" in the term "intelligent TCP offload meclhanisrn" has a meaning that
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`distinguishes pre-existing TCP offload mechanisms involving relatively "dumb" NICs that
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`were not capable ofprocessing a TCP connection as tire INIC set forth in the '868 patent is.
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`18. Pre-exirsting TCP oflioad mechanisms that involved relatively "dumb" NICs
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`included NICs that offloaded the host of,virtually no aspect ofhandling a TCP connection.
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`One ofordinary skill in the art would have been aware of such NICs.
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`19. Pre-exirsting TCP offload rnechanisms that involved relatively "dumb" NICs
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`ivrcluded NICs that offloaded minor aspects of handling a TCF communication, but were
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`nonetheless incapable ofprocessing aTCP connection. lU.S. PatentNo.6,l4l,705 (the'705),
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`which is a patent referenced in the '868 patent, discloses the functionality of several dumb
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`NICs of this type. As explained bythe'705 patent, these dumb NICs performed support
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`funotions like checksum calculation/verification, dala enoryption/decryption, message digest
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`calculation. and TCP segmentation.
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`2A. In my opinion, the'868 patent provides a standard for assessing the meaning of
`the term "intelligent" in the terun "intellligent TCP oflload rnechanism" within its proper
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`context becaurse "intelligent" excludes "durnb" and because one ofordinary skill in the art
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`would consider "dumb NICs" that were pre-existing in the art at the time, would determine
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`what their functionality was. This knowledge, cornbinedl with the general knowledge in the art
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`as to what ths functionality ofpre-existing durnb NICs was, would apprise ofone ordinary skill
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`in the art ofthe boundls ofthe term "intelligent TCP offload mechanism."
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`DECLARATION OF DR, KEVIN ALMEROT}I 7
`I}i SLIPPORT OF ALACRITECH'S REPLY TO
`MICROSOFT'S OPPOSITION TO ALACNTECH'S MOTNON
`FOR PRELIMINARY INJUNCTION
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`Case 3:04-cv-03284-JSW Document 73 Filed O2l11lO5 Page 8 of 24
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`Validity of Claim l of tle '868 Fatent
`
`21 .
`invention of Claim I of the '858 Patent. More particularly, not one of the five references
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`As set forth in further dletail below, not one of the five references discloses the
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`dliscloses "establishing a llCP connection" and tlhen "offloading the TCP connection from [a]
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`processor to an intelligent TCP offload mechanism", where the term "TCP connection" means
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`a "combination of information that identifies a process on a local host and a process on a
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`remote host that wish to communicate using TCP, describes the status of the TCP
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`comn:runication between tlose processes, and can be employed to send data between those
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`processes using TCP", and wherein the term "offloading" rneans "transfering" the TCP
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`connection and associatedl processing frorn the "processor" to an "intelligent TCP offload
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`mechanism."
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`ocumentation
`A,
`22. The Protocol Engines documentation does not disclose that: "Control ofthe
`connection was then offloaded to the rest ofthe chipset by the transfer of state inf,ornration
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`into ctripset memories." Chesson Declaration, paragraph 40. Instead. the ProtocoI Engines
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`documentation teaches that the problern of accelerating protocol processing existedl in the
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`1990- 1991 time frame, for which ProtocoI Engirnes of'fered a different solution than that
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`defined in Clairm I ofthe'868 patent.
`23. In particular, the several pages specifioally citedl as support for that assertion
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`by Dr. Chesson do not teaclh or suggest such a conclusion, and instead suggest the opposite.
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`Those pages are: Ex. D to the Chesson Declaratiron, at page 5A; Ex. E to the Chesson
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`Declaration, at pages 86 and I 5 1 ; Ex. F to the Chesson Declaration, at page 252; and Ex. K
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`to the Chesson Declaration, at page at 129.
`24. I note initially that the Protocol Engines documentation refers primarily to
`XTP, which stands for "Xpress Transfer Protocol," rather than TCP. XTP may be thought of
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`DECLARATION OF DR. KEVIN,ALMEROT}I 8
`IN SLTPPORT OF ALACR]TECH'S REPLY TO
`MICROSOFT'S OPPOSITION TO AL,A.CzuTEC}N'S MOTION
`FOR PRELIMINARY INJLINCTION
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`Case 3:04-cv-03284-Jsw Document 73 Filed ozlfilas Page I of 24
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`as a sirnpler protocol than TCP. It also appears from the Protocol Engines documentation
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`that implementation of XTP was a primary objective of Protocol Engines.
`25. Ex. F to the Chesson Declaration refers explicitly to "Xpress Transfer
`Protocol (XTP)." XTP is designed to be less complicated than TCP. XTP uses different
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`packet structurres than TCF. Page 252 of Ex. F to the Chesson Declaration refers to "a host
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`RAM control block management." There is no indication that a host RAM control block is
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`the same as a connection control trlock. Even if it were, there is no indication that it is a TCP
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`transmission control b,lock, which is relerred to as a TCts. Even if it were, there is no
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`indication that a control block iJncluding the TCB is transferred.
`76. Page 252 ofEx. F to the Chesson Declaration states that the oontrol processor
`(CP) provides functions including both "connection state informatiron maintenance" and
`"general protocol , CKs and other output messages." Conrnectionr state information
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`maintenance is a control function, and general protocol ACKs and other output rnessages is a
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`data movement function. Because the control processor (CP) is said to perform both control
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`and data moirr'emerxt ponions of the protocoll stack, Ex. F to the Chesson Decllaration does not
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`disclose that control of a TCP connection was transferrsd.
`27. Page 129 of Ex. K to the Chesson Declaration refers to NIS, which stands for
`"Network File System," an appllication that was used with UDP at the alleged time that
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`document was created, and describes 'NFS FastPath" near the top and "UDP + NFS FaslPath
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`overhead" near the bottom ofthe page. UDF, which stards for User Datagram hotocol, is
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`connectionless, andl so Dr. Chesson's assertion that 'control ofthe connection was offloaded'
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`is contradictedl by Exhibit K.
`28. Page 5A ofEx. D to the Chesson Declaration refers to "fastpath" and "non-
`fast path" processing. I have foundno indication that such a fastpath would be fora TCP
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`connection. When read in conjunction with page 129 of Ex. K to the Chesson Decllaratiom,
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`and with the krou'ledge that Protocol Engines was directed toward XTP, Page 5,4 ofEx. D to
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`DECLARATION OF DR. KEVIN ALMERONN 9
`IN STIPPORT OF ALACRITECH'S REPLY TO
`MICR.OSOFT'S OPPOSITION TO AIACR]TECH'S MOTION
`FOR PRELIMINARY INJLINCTION
`
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`Case 3:04-cv-03284-JSW Document 73 Filed OZl1,ilAs Page L0 of 24
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`the Chesson Declaration may refer to an XTP "fastpath" or'1rlS'S FastPath" and "UDP +
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`NFS FastPath.
`29. Page 86 of Ex. E to the Chesson Declaration refers to a Transmit Command
`Bloclq which has the sarne acronym (TCB) as a Transmission Control Block, but whiclh
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`appears to instead include generic data that contains information such as a frame's protocol
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`type, size and location. Transfer of a Transmit Command Block would not be the same as
`transfer of a TCP connection. Page l5l of Ex. E to lhe Chesson Declanation also does not
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`describe transfening a TCP connection. There is no indication that a Transmit Command
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`Block is the same as a connection control block. Even if it were, there is no indication that a
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`control block is transferred.
`30. U.S. Patent No. 5,524,250 to Chesson et al. also does not describe transferring
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`a TCP connection.
`31. Even ifDr. Chesson's assertions regarding the Protocol Engines
`documentation were true, it wou,ld not anticipate or render obvious Claim l, because it does
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`not desoribe transferring a TCP connection and associarted processing. At most the Protocol
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`Engines documents desoribe a shared state, not a state that is offtroaded.
`32. Exhibits D through L to Dr. Chesson's Declaration all relate to the Protocol
`Engine chipset, which Microsoft acknowhdges was "never fabricated" (Opp., p. 7, fn. 6). I
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`have not been able to f'rnd evidenoe that the chipset was ever emulated, or exactly what that
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`emulation would entail-
`
`B.
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`U.S. Patent No. 5.61 9-550 to Bach- et all.
`
`32. Bach describes afronl end touter that performs all TCP/IP functions,
`including connection establishment, tsrmination and data transfer, for a host. Bach thus
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`describes what may be called a "full offload" ofTCF/lP. Bach does not teach or suggest
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`transferring a TCP conneotion. Instead, Bach provides a good example of the confusion
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`Microsoft attempts to generate by construing a TCP connection as "a logical communication
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`DECLARATTON OF DR- KEV]F,I ALMEROTI{ I O
`IN SL'PPORT OF ALACRITECH'S REPLY TO
`M]CROSOFT'S OPPOSMON TO AI-ACRJTECH'S MOTION
`FOR PRELMINARY 1]NJI.]NCTION
`
`Case No, C04-03284 JSW
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`Case 3:04-cv-03284-JSW Document 73 Filed AULT|OS Page 11 of 24
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`path identified by a pair ofsockets," and by construing establishing a connection as
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`establishing a logical path. The sockets Bach describes are not a combination of IP address
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`and TCP port, but an application lhat runs over a variety of network protocols including TCP.
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`The connectQ described by Bach is not the establishment ofa TCP connection by TCP, but a
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`command fiorn the ap,plication telling TCP to establish a connection. This command is
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`transmitted from the host to the front end router, and the router establishes and maintains the
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`TCP connection.
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`33. I note that similar full offload processing rnechanisms were considered during
`the prosecution ofthe '868 patent. See Exhibit N to Declaration of Mark Lauer in support of
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`Alacritech's Motion for Preliminary Injunction, Second Supplemental Information
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`Disclosure Statement per C.F.R. 1.98, filed August 14,2002 ("Excelan IDS"); Sheet5of 12
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`of Inforrnation Disclosure Statement b,y Applicant, ciring lU.S. Patent No. 6,034,963 to
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`Jr4inami et al. I have reviewed tlre Excelan IDS and U.S. Patent No. 6,034,963 to Minami et
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`a[., and believe that they describe "full offload" of TCP/IP, and that Bach is merely
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`cumulative to those references.
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`34. Dr. Chesson then cites R"FC 929 (Chesson Dec., Ex. N, tffi56, 57), for teaching
`a range of levels of protocol ilvolvement for a host and a front end device. For "offloading
`TCP," however, RFC 929 states only two possible values, "9' and "0r', corresponding to full
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`offload and no offload. RFC 929 atpage 35. Likethe other references cited by Dr. Chesson,
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`there is no teaching or suggestion of transf,erring a TCP conneetion, burt instead a
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`demonstration of the long-felt need for such an invention and the failure of others to
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`accomplish it.
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`35.
`host computer 602 (for example, an IBM 370/390 computer) that communicates with a
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`The Bach patent discloses a system (see, for example, Figure 6) involving a
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`network through a "Front End Router" 600. The front end router 600 includes a TCP/IP
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`protocol stack 622 and performs TCP/IP protocol processing. If a client application proglam
`
`DECLARAT]ON OF DR. KEVIN ALMERO1IH I I
`N SIJPPORT OF ALACRITECH'S REPLY lio
`MCROSOFT'S OPPOSITION TO ALACRITECH'S MCTTION
`FOR PRELIMINARY INJUNCTION
`
`Case No. C04-03284 JSW
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`Case 3:04-cv-03284-JSW Document 73 Filed 02l17lOS Page 12 at 24
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`executing on the trost computer 602 wishes, for example, to oornmunicate data out onto the
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`network, it can do so by using a socket 0 command. To facilitate network communication, a
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`first control blook (called the "socket control block" (SCB)) is set up on hosr computer 602.
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`A second control block (called the "conneotion control block (CCB)) is set up on front end
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`router 600. The data to be communicated is passed frorn the client application on the host
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`602, to the SCB on the host 602, to the CCB on the front end router 600. The front end
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`router 600 performs all TCP/IP protocol processing includling the establishing ofa TCP
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`connection. When the TCP connection has b€en establlished,
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`the front end router 600
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`transmits the data using the established TCP comection onto the network.
`36. Druring the establishing ofthe TCP connection and subsequent network data
`communication, the "connection control block (CCB)" 602 in Bach is never moved from the
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`host 602 to the front end router 600. The host computer 602 does not establish the TCP
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`connoction. The TCP connecxion is not established on the host 602, and the TCP connection
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`is never present on the host 602.
`37 .
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`The SCB on the host 602 is not a "TCP connection". The SCB is not "a
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`combination of information that identifies a process on a local host and a process on a remote
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`host that wish to communicate using TCP, describes the status of TCP communication
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`between those processes, and can be employed to send data between those processes using
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`TCP."
`
`38. In my opinion, the Bach patent fails to disclose the recited subject mauer of
`Claim l ofthe '868 patent. Even ifthe host computer 602 were considered 1o be the
`
`"processor" recited in Claim I ofrhe '868 patent, and even if the front end router 600 were
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`considered to the "intelligent TCP offload mechanism" recited in Claim I ofthe '868 patent,
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`then the Bach patent would still fail to disclose the subject matter of Claim I because there is
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`no transferring ofa TCP conneclion frorn the host computer 602 to the front end router 600.
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`ln Bach, the TCP connection is establlished on the front end router 600 and the TCP
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`connection remains on the front end router 600.
`
`DECLA&{TION OF DR. KEVIN ALMEN.OT}N 12
`IN SIJ'PPORT OF ALACRITECH'S REPLY TO
`MICROSOFT'S OPPOSIT]ON TO ALACRITECH'S MOTION
`FOR PRELMINARY INJUNCTNON
`
`Case No. C04-03284 JSW
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`Case 3:04-cv-03284-JSW Document 73 Filed O2lL7!a5 Page 13 of 24
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`39. Dr. Chesson argues that tJrere are instructions in Bach for "establishing the
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`TCP connection" that execute on the host computer because the host computer in Bach isstues
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`certain socket commands (socketQ and conneotQ) and these socket commands in turn oause
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`the Front End Router to establish the TCP connection. For exarnple. Dr. Chesson rnaintains
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`in paragraph 49 ofthe Chesson Declaration that "the instruotions for 'establishing a TCP
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`conneotion' in the Bach patent inch"rde the socketQ and connect0 commands, the DSL and
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`DSM libraries, and the front end router's TCP/IP stack"" The second pafi of Dr. Chesson's
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`argument is that because the host cornputer establislled the TCP connection, and because it is
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`an ohject ofthe Bach patent to "offload" the rnain processor, that the TCP connection must
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`have been offloaded from the host computer 602 to the Front End R.outer 600 because the
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`Front End Router is describsd as perfo mirng the TCP data rnovement processing. I disagree
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`with the prernise ofDr. Chesson argurnent that Bach dliscloses that the host executes a "set of
`
`instructions" for "establishing a TCP connection." Tile socket0 and connectQ commands
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`executed by the host computer in Baah do not "establish" a TCP connection, rather they
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`merely instruct another entity (the "Front End Router") to establish the TCP connection. In
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`Bach, it is the Front End Router that executes the instructions that establish the TCF
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`connection. The host does not execurte instnLrctions that establlish the TPC connection. Ttre
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`TCF connection is established on the Front End Roruter, and the TCP connection remains on
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`the Front End Routor. The TCP connection is never "offloadedl" (i.e., trransferred from the
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`host to the Front End Router).
`40. Lirke the other references cited by Dr: Chesson, therc is no leaching or
`suggestion oftransferring a TCP connection, but instead a demonstration ofthe Iong-felt
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`need for such an invention and the failure ofothers to accomplish it.
`
`C.
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`Ttre Macllean and Earvick Panef,
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`4n. I\4aclean and Barvick fail to mention TCP connection establishrnent. Maclean
`
`DECLA-&4T'ION OF DR.. KEVIN ALMEROTI.N 13
`I}i SLIPPORT OF' ,ALACPJTECH'S REPLY TO
`MICROSOFT'S OPPOSITION TO AIACRITECH'S MOTION
`FOR PRELIMIN ARY INJUNCTION
`
`Case No. C04-03284 JSW
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`Case 3:04-cv-03284-JSW Document 73 Filed 02l1"LlA5 PaOe L4 of 24
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`andl Barvick also fail to mention where a TCF connection would be established. Maclean and
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`Barvick do not describe offloading a TCP connection to an intelligent TCP offload
`
`mechanism.
`
`42. Dr. Chesson, however, appears to deduce this conclusion by process of
`elimination (Chesson Dec., fl 62). Since Maclean and Barvirck list some functions that Dr.
`
`Chesson claims the Protocol Accelerator does, Dr. Chesson assumes that what is not listed is
`
`not performed andl then proceeds to state it as fact:
`
`Their Protrrcol Accelerator offloads processing from the host for the
`maintenance of the retransmission queue, resequencing for out of order
`packets, implementation of retransmission timers and frarning and
`encapsulation (packetizing host data) for a connection in the ESTABLISHED
`state. 1d at 1730. This is explicitly not a l00oZ offload of TCP/IP stack
`functionality because the Protooon Accelerator does not contaiin the
`instructions to setup/teardown a TCP connection or handle exceptions: llost
`software must first establish a conneotion and then enable the board (by
`initializing a TCB on the board) to operate on the establlished connection. 1d.
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`413. I disagree witrh Dr. Chesson's statement. Dr" Chesson has modlified the quote
`
`from Maclean and Barvick to suit his argument. Maclean and tsarvick instead state:
`
`The high performance aspects of the Protocol Accelerator such as the
`dual processors, DMA and on-the-l'lly chec.ksum require the design of the
`bangart protocol implementation to be specific to the PA. Therefore, a
`custom implementotian af TCP was developed. (Ex. G to Chesson Dec., page
`1730).
`M. Maclean and Barvick t}en strate:
`As noted in the hardware description, the generic nature of the PA
`requires that checksums be placed after the header and after the data. Other
`than this difference, the implemenlation provirdes all of the TCP functions
`required to transrnit and receive data in the TCP (call) ESTABLISHED state.
`Among others, these functions include maintaining the retranrsmission queue,
`providing resequencing for out of order paokets, supporting retransmission
`timers, and packetizing host data into TCP segments, or TPDUs. Id.
`45. In contrast to Dr. Chesson's statement. what Maclean and Barvick dlescribe is
`not the function ofthe Protocol Accelerator, but rather the function of Maclean and Barvick's
`
`custorn TC P protocol imple rnentaliorr.
`46. I further note that the functions listed by the Protocol Accelerator do not list
`the offloading ofthe connection from the host as one