Paper 8
`Trials@uspto.gov
`571-272-7822 Entered: November 22, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`INTEL CORPORATION,
`Petitioner,
`
`v.
`
`ALACRITECH, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01395
`Patent 8,805,948 B2
`____________
`
`
`
`Before STEPHEN C. SIU, DANIEL N. FISHMAN, and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`FISHMAN, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822 Entered: November 22, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`INTEL CORPORATION,
`Petitioner,
`
`v.
`
`ALACRITECH, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01395
`Patent 8,805,948 B2
`____________
`
`
`
`Before STEPHEN C. SIU, DANIEL N. FISHMAN, and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`FISHMAN, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`IPR2017-01395
`Patent 8,805,948 B2
`
`I. INTRODUCTION
`Intel Corporation (“Petitioner”) requests inter partes review of claims
`1, 3, 6–9, 11, 14–17, 19, 21, and 22 of U.S. Patent No. 8,805,948 B2 (“the
`’948 patent,” Ex. 1001) pursuant to 35 U.S.C. §§ 311 et seq. Paper 2
`(“Pet.”). Alacritech, Inc. (“Patent Owner”) filed a preliminary response.
`Paper 7 (“Prelim. Resp.”). Institution of an inter partes review is authorized
`by statute when “the information presented in the petition . . . and any
`response . . . shows that there is a reasonable likelihood that the petitioner
`would prevail with respect to at least 1 of the claims challenged in the
`petition.” 35 U.S.C. § 314(a); see 37 C.F.R. § 42.108. Upon consideration
`of the Petition, Preliminary Response, and the evidence of record, we
`conclude the information presented fails to show that there is a reasonable
`likelihood that Petitioner would prevail in establishing the unpatentability of
`at least one of claims 1, 3, 6–9, 11, 14–17, 19, 21, and 22 of the ’948 patent.
`
`A. Related Matters
`We are informed that the ’948 patent is presently related to the
`following: Alacritech, Inc. v. CenturyLink, Inc., Case No. 2:16-cv-00693-
`JRG-RSP (E.D. Tex.); Alacritech, Inc. v. Wistron Corp., Case No. 2:16-cv-
`00692-JRG-RSP (E.D. Tex.); and Alacritech, Inc. v. Dell Inc., Case No.
`2:16-cv-00695-RWS-RSP (E.D. Tex.). Pet. 3; Paper 3, 1.
`
`B. The ’948 Patent (Ex. 1001)
`The ’948 patent describes a system and method for “fast-path”
`protocol processing of communicated information in computer networks.
`See Ex. 1001, 3:53–4:5.
`
`2
`
`
`
`IPR2017-01395
`Patent 8,805,948 B2
`
`C. Illustrative Claim
`Independent claim 1, reproduced below, is illustrative of the claimed
`subject matter:
`1. A method for network communication by a host
`computer having a network interface that is connected to the host
`by an input/output bus, the method comprising:
`running, on the host computer, a protocol processing stack
`including an Internet Protocol (IP) layer and a Transmission
`Control Protocol (TCP) layer, with an application layer running
`above the TCP layer;
`initializing, by the host computer, a TCP connection that
`is defined by source and destination IP addresses and source and
`destination TCP ports;
`receiving, by the network interface, first and second
`packets, wherein the first packet has a first TCP header and
`contains first payload data for the application, and the second
`packet has a second TCP header and contains second payload
`data for the application;
`checking, by the network interface, whether the packets
`have certain exception conditions, including checking whether
`the packets are IP fragmented, checking whether the packets
`have a FIN flag set, and checking whether the packets are out of
`order;
`if the first packet has any of the exception conditions, then
`protocol processing the first TCP header by the protocol
`processing stack;
`if the second packet has any of the exception conditions,
`then protocol processing the second TCP header by the protocol
`processing stack;
`if the packets do not have any of the exception conditions,
`then bypassing host protocol processing of the TCP headers and
`storing the first pay load data and the second payload data
`together in a buffer of the host computer, such that the payload
`data is stored in the buffer in order and without any TCP header
`stored between the first payload data and the second payload
`data.
`
`Id. at 19:42–20:7.
`
`3
`
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`IPR2017-01395
`Patent 8,805,948 B2
`
`D. Asserted Grounds of Unpatentability
`Petitioner asserts that claims 1, 3, 6–9, 11, 14–17, 19, 21, and 22 are
`unpatentable under 35 U.S.C. 103(a) over the combined disclosures of Thia,1
`Tanenbaum96,2 and Stevens2.3 Pet. 15.
`
`II. DISCUSSION
`A. Prior Art Printed Publication
`Before reaching the merits of Petitioner’s obviousness contentions, all
`of which are based, in part, on Stevens2, we must determine as a threshold
`issue whether Stevens2 is a prior art printed publication under 35 U.S.C.
`§ 311(b). It is Petitioner’s burden to prove that it is, as Petitioner bears the
`burden of proving unpatentability by a preponderance of the evidence. See
`35 U.S.C. § 316(e). Petitioner argues Stevens2 was published “no later than
`April 7, 1995,” antedating the 1997 priority date of the ’948 patent, and,
`thus, is prior art under 35 U.S.C. § 102(b). Pet. 45 n.9 (citing Ex. 1063 the
`“Stansbury Declaration”).
`Patent Owner argues Stevens2 is not properly available as prior art in
`this preliminary proceeding. Prelim. Resp. 26–33. Specifically, Patent
`Owner argues the Stansbury Declaration is insufficient to show that
`Stevens2 is a printed publication available as a reference in this proceeding.
`Id. at 28–30. Patent Owner contends the Stansbury Declaration fails to
`
`
`1 Y.H. Thia and C.M. Woodside, A Reduced Operation Protocol Engine
`(ROPE) for a Multiple-Layer Bypass Architecture, 1995 (“Thia,” Ex. 1015).
`2 Andrew S. Tanenbaum, Computer Networks, Third Edition, 1996
`(“Tanenbaum96,” Ex. 1006).
`3 W. Richard Stevens et al., TCP/IP Illustrated, Volume 2, 1995
`(“Stevens2,” Ex. 1013).
`
`4
`
`
`
`IPR2017-01395
`Patent 8,805,948 B2
`
`evidence any personal knowledge that Stevens2 was publicly available and
`fails to explain any “methodology” by which she determined its public
`availability. Id. at 29. Patent Owner particularly notes Ms. Stansbury’s
`“hedging language” that her opinion is “[a]s best [she] can determine.” Id.
`The determination of whether a document is a “printed publication”
`under 35 U.S.C. § 102 “involves a case-by-case inquiry into the facts and
`circumstances surrounding the reference’s disclosure to members of the
`public.” In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004).
`“Because there are many ways in which a reference may be disseminated to
`the interested public, ‘public accessibility’ has been called the touchstone in
`determining whether a reference constitutes a ‘printed publication’ bar under
`35 U.S.C. § 102(b).” Blue Calypso, LLC v. Groupon, Inc., 815 F.3d 1331,
`1348 (Fed. Cir. 2016) (quoting In re Hall, 781 F.2d 897, 898–99 (Fed. Cir.
`1986)).
`Other than the above-identified statement (Pet. 45 n.9) and the
`Stansbury Declaration (Ex. 1063), Petitioner provides no other explanation
`or evidence in support of the contention that Stevens2 is available as a prior
`art printed publication in this proceeding. An image of Exhibit 1063 is
`reproduced below in its entirety:
`
`5
`
`
`
`IPR2017-01395
`Patent 8,805,948 B2
`
`
`Ex. 1063 is an “Affidavit” from Ms. Pamela Stansbury stating that, as best
`she can determine, Stevens2 would have been available by April 7, 1995.
`We find Ex. 1063 to be insufficient to support Petitioner’s contention
`regarding the public availability of Stevens2. Our rules allow affidavits as a
`form of evidence. 37 C.F.R. § 42.63(a). However, our rules define affidavit
`to mean “affidavit or declaration under § 1.68 of this chapter. . . . [A]
`declaration under 28 U.S.C. [§] 1746 may be used as an affidavit.”
`
`6
`
`
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`IPR2017-01395
`Patent 8,805,948 B2
`
`37 C.F.R. § 42.2. The Stansbury Declaration is insufficient, under either 37
`C.F.R. § 1.68 or 28 U.S.C. § 1746, because it lacks any acknowledgement
`by Ms. Stansbury that willful false statements are punishable by fine,
`imprisonment, or both, or that the statements are true under penalty of
`perjury. To give weight to Ms. Stansbury’s statements would thwart the
`purpose of our rules regarding testimonial evidence. See Int’l Business
`Machines Corp. v. Intellectual Ventures II LLC, Case IPR2015-01323, slip
`op. 9–11 (PTAB Sept. 27, 2016) (Paper 38). It appears that Petitioner
`understood the requirements for affidavits under our rules as evidenced by
`two other librarian declarations submitted in this matter relied upon to
`authenticate other references, which properly acknowledge the penalty for
`willful false statements. See Exs. 1011 and 1064. Accordingly, we accord
`no weight to Exhibit 1063. With no weight afforded Ms. Stansbury’s
`Declaration, we are left with only Petitioner’s unsupported assertion that
`Stevens2 qualifies as a printed publication publicly accessible prior to April
`7, 1995.
`Patent Owner also observes that Stevens2 specifically states that it is
`the “24th Printing September 2010.” Prelim. Resp. 30–31 (quoting Ex. 1013,
`.010). Petitioner provides no evidence that the 24th printing generated in
`2010 (long after the 1997 priority date of the ’948 patent) discloses the same
`material as earlier printings that may antedate the ’948 patent. Thus, on its
`face, Exhibit 1013 contradicts Petitioner’s unsupported assertion that it pre-
`dates the ’948 patent priority date.
`
`Still further, even if we accorded the Stansbury Declaration some
`weight, the Declaration fails to describe the indexing/cataloging procedures
`that would support an assertion that Stevens2 would be locatable by an
`
`7
`
`
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`IPR2017-01395
`Patent 8,805,948 B2
`
`interested person of ordinary skill. See Blue Calypso, 815 F.3d at 1349
`(“Indexing by subject offers meaningful assurance that an ordinarily skilled
`artisan, exercising reasonable diligence, will be able to locate a particular
`reference among the many volumes stored in a library.”).
`The sole asserted ground for unpatentability relies, in part, on the
`disclosure of Stevens2. Accordingly, because the record does not support
`Stevens2 as a publicly accessible printed publication, we find that Petitioner
`has not established a reasonable likelihood of prevailing on its sole ground
`of unpatentability with respect to claims 1, 3, 6–9, 11, 14–17, 19, 21, and 22.
`
`III. CONCLUSION
`For the foregoing reasons, the information presented in the Petition
`does not establish a reasonable likelihood that Petitioner would prevail in
`showing the unpatentability of any challenged claim of the ’948 patent based
`on the ground asserted by Petitioner.
`
`IV. ORDER
`
`Accordingly, it is:
`
`ORDERED that the Petition is denied and no inter partes review is
`
`instituted.
`
`
`8
`
`
`
`IPR2017-01395
`Patent 8,805,948 B2
`
`FOR PETITIONER:
`Garland T. Stephens
`Jeremy Jason Lang
`Adrian Percer
`WEIL, GOTSHAL & MANGES LLP
`garland.stephens@weil.com
`jason.lang@weil.com
`adrian.percer@weil.com
`
`
`FOR PATENT OWNER:
`James M. Glass
`Joseph M. Paunovich
`Brian E. Mack
`QUINN EMANUEL URQUHART & SULLIVAN LLP
`jimglass@quinnemanuel.com
`joepaunovich@quinnemanuel.com
`brianmack@quinnemanuel.com
`
`
`
`
`9
`
`
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