Case IPR2017-01395
`U.S. Patent No. 8,805,948
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`
`INTEL CORPORATION
`Petitioner
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`v.
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`ALACRITECH, INC.
`Patent Owner
`
`________________________
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`Case IPR. No. IPR2017-01395
`U.S. Patent No. 8,805,948
`________________________
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`Petitioner’s Request For Rehearing Under 37 C.F.R. § 42.71(d)
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`
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`
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`U.S. Patent No. 8,805,948
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`
`INTEL CORPORATION
`Petitioner
`
`v.
`
`ALACRITECH, INC.
`Patent Owner
`
`________________________
`
`Case IPR. No. IPR2017-01395
`U.S. Patent No. 8,805,948
`________________________
`
`Petitioner’s Request For Rehearing Under 37 C.F.R. § 42.71(d)
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`
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`
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`Case IPR2017-01395
`U.S. Patent No. 8,805,948
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`1.
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`INTRODUCTION
`On November 22, 2017, the Board issued a decision denying institution of
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`Inter Partes Review of U.S. Patent No. 8,805,948. Specifically, the Board denied
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`institution on the basis that the secondary reference in Petitioner’s petition, the
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`reference book Stevens, TCP/IP Illustrated, Vol.2 (“Stevens2”) (Ex.1013), was not
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`shown to be a prior art printed publication. IPR2017-01395, Paper 8 at 8. The
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`Board found that Exhibit 1063, a sworn affidavit from Pamela Stansbury (an
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`employee of the Original Cataloging Unit of the Cornell University Library)
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`stating that Stevens2 “was publicly available at the Cornell University Library as
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`of April 7, 1995,” to be insufficient to support the public availability of Stevens2
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`“because it lacks any acknowledgement by Ms. Stansbury that willful false
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`statements are punishable by fine, imprisonment, or both, or that the statements are
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`true under penalty of perjury.” Id. at 6-7; see Exhibit 1063.
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`Petitioner respectfully submits that the Board misapplied laws that require
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`an unsworn declaration to include an acknowledgement of the penalty of perjury
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`to the sworn affidavit of Ms. Stansbury. See Exhibit 1063. (“Pamela Stansbury
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`being of full age and duly sworn, deposes and says as follows”, “Sworn to before
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`me”). Unlike an unsworn declaration, a sworn affidavit is not required to include
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`such an acknowledgment. See Home Sav. of America F.A. v. Einhorn, No. 87 C
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`7390, 1990 WL 114643 at *4 (N.D. Ill. July 24, 1990) (“If a statement does not
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`Case IPR2017-01395
`U.S. Patent No. 8,805,948
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`satisfy § 1746 by evidencing that the declarant signed under penalty of perjury,
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`then the other alternative under federal law is for the declarant to swear before an
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`official authorized to administer an oath. This is generally what is meant by the
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`term ‘affidavit’”).
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`As the Board noted, 37 C.F.R. § 42.63(a) permits the use of affidavits as
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`evidence. As the Board also noted, 37 C.F.R. § 42.2 states that “Affidavit means
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`affidavit or declaration under § 1.68 of this chapter. A transcript of an ex parte
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`deposition or a declaration under 28 U.S.C. 1746 may be used as an affidavit.”
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`(emphasis added). While §42.2 permits the use of unsworn declarations under
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`§1.68 or 28 U.S.C. § 1746 in lieu of a sworn affidavit, none of these sections
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`extends the acknowledgement requirements for such an unsworn declaration to a
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`sworn affidavit. Yet the Board mistakenly applied the requirements of 37 C.F.R. §
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`1.68 and 28 U.S.C. § 1746 for unsworn declarations to the sworn Stansbury
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`Affidavit.
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`Ms. Stansbury executed a sworn affidavit in the presence of a notary public
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`stating that Stevens2 was, in her best determination, publicly available as of April
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`7, 1995 at the Cornell University Library – more than two years before the priority
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`date of the 948 Patent. The Stansbury Affidavit, sworn before a notary public, is
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`“a sworn statement [ ] made under penalty of perjury” (see N.Y. Penal Law §§
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`210.00-.50) and is not subject to the acknowledgment requirements for unsworn
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`3
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`U.S. Patent No. 8,805,948
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`declarations of either 37 C.F.R. § 1.68 or 28 U.S.C. 1746. See Home Sav. of
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`America F.A., 1990 WL 114643 at *4 (“If a statement does not satisfy § 1746 by
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`evidencing that the declarant signed under penalty of perjury, then the other
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`alternative under federal law is for the declarant to swear before an official
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`authorized to administer an oath. This is generally what is meant by the term
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`‘affidavit’”). As a result, the Board erred in giving Ms. Stansbury’s sworn
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`affidavit no weight.
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`The Board also found that “Petitioner provides no evidence that the 24th
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`printing generated in 2010 (long after the 1997 priority date of the ’948 patent)
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`discloses the same material as earlier printings that may antedate the ’948 patent.”
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`IPR2017-01395, Paper 8 at 7. Respectfully, this is also error. Each “printing” of a
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`book is exactly what it says it is – the creation of additional printed copies of the
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`same book. In contrast, revisions are signified by a new “edition.”1 The same page
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`relied upon by the Board to show that Stevens2 submitted by Petitioner is the 24th
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`printing shows that it is a reprint of the 1995 edition, because it identifies only the
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`1 For corroboration of the plain meaning of printing and edition see Ex.1095 (“A
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`reprint means more copies are being printed with no substantial changes. Perhaps a
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`few typos are being fixed. A new edition means that there has been a substantial
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`change”).
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`4
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`1995 copyright date and no later edition. Ex.1013.010.
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`Case IPR2017-01395
`U.S. Patent No. 8,805,948
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`Petitioner further respectfully submits that the Board misapplied the legal
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`standard for institution and instead applied a post-institution, trial standard.
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`Petitioner clearly demonstrated that there is at least a reasonable likelihood that all
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`challenged claims of the 948 Patent are invalid, including specifically at least a
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`reasonable likelihood that Stevens2 is prior art, since, in addition to the Stansbury
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`Affidavit, it is described as widely-cited prior art in Petitioner’s expert declaration
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`and effectively acknowledged as such in the earliest-filed priority application for
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`the ’948 Patent. See Petition at 15 (citing Ex.1003 at ¶¶21-88, including ¶¶27, 60,
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`and FN3), 45 (citing Ex.1003 at ¶1212), FN9; see also Ex.1031.009 (“According to
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`W. Richard Stevens and Gary Write in their book ‘TCP/IP Illustrated Volume 2’,
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`TCP operated without experiencing any exceptions between 97 and 100 percent of
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`the time in local area networks”)).
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`Petitioner, pre-institution, need only demonstrate a reasonable likelihood of
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`2 On page 45 of the Petition, Petitioner mistakenly cited to ¶121 of Ex.1003 in
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`support of the statement that “Stevens2 is one of the most widely-read and
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`referenced books on the implementation of TCP/IP.” Petitioner intended to cite to
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`Ex.1003 at ¶123, which is the beginning of the section concerning Stevens2, rather
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`than ¶121, which concerns the Tanenbaum96 reference.
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`5
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`U.S. Patent No. 8,805,948
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`success, not conclusive proof of public accessibility as the Board ultimately
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`required. See, e.g., Coalition for Affordable Drugs IV LLC, IPR2015-01076, Paper
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`No. 33 at 6 (PTAB Oct. 19, 2015); see also IPR2017-0425, Paper 8 at 26. To the
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`extent that the Patent Owner raised disputes of material fact in its response relating
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`to the sworn affidavit of Ms. Stansbury, these should be resolved in favor of the
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`Petitioner at the institution stage and instead addressed during the trial, particularly
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`given the totality of evidence regarding the public availability of the Stevens2
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`reference (including Petitioner’s expert declaration and that Stevens2 was cited by
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`the 1997 Provisional Application 60/061,809 from which the 948 Patent claims its
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`earliest priority date, as shown in Ex.1031.009). See 37 CFR § 42.108(c).
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`2.
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`APPLICABLE LEGAL STANDARDS
`This Request is authorized under 37 C.F.R. § 42.71(d) because it is filed
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`within 30 days of the entry of a decision not to institute a trial. Under 37 C.F.R. §
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`42.71(d), the Request “must specifically identify all matters the party believes the
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`Board misapprehended or overlooked, and the place where each matter was
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`previously addressed in a motion, an opposition, or a reply.” Section 42.71(c) of
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`37 C.F.R. provides that a panel will review the decision for an abuse of discretion.
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`“An abuse of discretion may arise if a decision is based on an erroneous
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`interpretation of law,” see Daicel Corp. v. Celanese Int’l Corp., IPR2015-00173,
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`Paper 15 at 2 (June 26, 2015).
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`6
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`U.S. Patent No. 8,805,948
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`Under 37 CFR § 42.108, a petition must “demonstrate that there is a
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`reasonable likelihood that at least one of the claims challenged in the petition is
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`unpatentable” for institution of a trial. Consistent with the “reasonable likelihood”
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`standard, for institution purposes, there is no requirement to establish with
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`certainty or trial evidence that a reference is prior art. Rather, “Petitioner [ ] has
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`the initial burden of production to establish that there is prior art that renders the
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`claims unpatentable. To satisfy this initial burden, we have often required
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`Petitioner to come forward with sufficient evidence to make a threshold showing
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`that the reference relied upon is available prior art.” See, e.g., Coalition for
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`Affordable Drugs IV LLC v. Pharmacyclics, Inc., IPR2015-01076, Paper 33 at 6
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`(PTAB Oct. 19, 2015); see also IPR2017-0425, Paper 8 at 26 (determining prior
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`art status “[a]t this [institution] stage of the proceeding” by looking at the totality
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`of the evidence, including alleged hearsay, because such evidentiary objections
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`“are properly made and resolved” during trial).
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`The determination of what constitutes a “printed publication” requires a
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`case-by-case inquiry into the facts and circumstances surrounding the reference’s
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`disclosure to the public. In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004).
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`Under the relevant legal standard, a reference is considered “publicly accessible”
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`based on a showing that the document was “disseminated or otherwise made
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`available to the extent that persons interested and ordinarily skilled in the subject
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`7
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`U.S. Patent No. 8,805,948
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`matter or art exercising reasonable diligence[] can locate it.” Kyocera Wireless
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`Corp. v. ITC, 545 F.3d 1340, 1350 (Fed. Cir. 2008) (citation and internal quotation
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`marks omitted).
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`3.
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`BASIS FOR RELIEF REQUESTED
`3.1.
`The Board Misapplied the requirements of 37 C.F.R. § 1.68
`and 28 U.S.C. 1746 for unsworn declarations to the sworn
`Stansbury Affidavit.
`Respectfully, the Board misapplied the requirements of 37 C.F.R. § 1.68 and
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`28 U.S.C. 1746 for unsworn declarations to the sworn Stansbury affidavit.
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`Specifically, the Board held:
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`We find Ex. 1063 to be insufficient to support Petitioner’s contention
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`regarding the public availability of Stevens2. Our rules allow affidavits as a
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`form of evidence. 37 C.F.R. § 42.63(a). However, our rules define affidavit
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`to mean “affidavit or declaration under § 1.68 of this chapter. . . . [A]
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`declaration under 28 U.S.C. [§] 1746 may be used as an affidavit.” 37
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`C.F.R. § 42.2. The Stansbury Declaration is insufficient, under either 37
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`C.F.R. § 1.68 or 28 U.S.C. § 1746, because it lacks any acknowledgement
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`by Ms. Stansbury that willful false statements are punishable by fine,
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`imprisonment, or both, or that the statements are true under penalty of
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`perjury. To give weight to Ms. Stansbury’s statements would thwart the
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`purpose of our rules regarding testimonial evidence. See Int’l Business
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`8
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`Machines Corp. v. Intellectual Ventures II LLC, Case IPR2015-01323, slip
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`op. 9–11 (PTAB Sept. 27, 2016) (Paper 38).
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`IPR2017-01395, Paper 8 at 6-7. Yet Ms. Stansbury, swore before a notary public
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`that to her best determination, Stevens2 was “publicly available” at the Cornell
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`University Library more than two years before the priority date of the 948 Patent.
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`Id. Ms. Stansbury’s sworn affidavit is subject to a penalty of perjury under New
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`York law. See N.Y. Penal Law §§ 210.00-.50. Because the Stansbury Affidavit is
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`sworn, the acknowledgement requirements of 37 C.F.R. § 1.68 and 28 U.S.C. 1746
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`for unsworn declarations on do not apply. Respectfully, the Board’s conclusion
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`that Ms. Stansbury’s affidavit should be given no weight is clearly in error based
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`on the Board’s misapplication of 37 C.F.R. § 1.68 and 28 U.S.C. 1746.
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`Both 37 C.F.R. § 1.68 and 28 U.S.C. 1746 are explicitly directed to unsworn
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`declarations used in lieu of sworn affidavits. Section 1.68 is entitled “Declaration
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`in lieu of oath,” and states that an unsworn declaration “may be used in lieu of the
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`oath otherwise required, if, and only if, the declarant is on the same document,
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`warned that willful false statements and the like are punishable by fine or
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`imprisonment.” Title 28, section 1746 is entitled “Unsworn declarations under
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`penalty of perjury,” and states that “[w]herever… any matter is required or
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`permitted to be supported, evidenced, established, or proved by the sworn
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`declaration… or affidavit… such matter may, with like force and effect, be
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`9
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`supported, evidenced, established, or proved by the unsworn declaration”
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`(emphasis added) if a penalty of perjury is acknowledged. Neither 37 C.F.R. § 1.68
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`nor 28 U.S.C. § 1746 require such an acknowledgement for a sworn affidavit like
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`the Stansbury Affidavit. Further, neither 37 C.F.R. § 42.63(a) or § 42.2 requires
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`that an IPR petitioner use an unsworn declaration in lieu of a sworn affidavit.
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`Petitioner submitted a sworn affidavit in support of Stevens2, not an unsworn
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`declaration. The acknowledgements required by 37 C.F.R. § 1.68 and 28 U.S.C. §
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`1746 for unsworn declarations therefore do not apply. See Home Sav. of America
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`F.A., 1990 WL 114643 at *4 (“If a statement does not satisfy § 1746 by evidencing
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`that the declarant signed under penalty of perjury, then the other alternative under
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`federal law is for the declarant to swear before an official authorized to administer
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`an oath. This is generally what is meant by the term ‘affidavit’”).
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`Unlike the sworn Stansbury Affidavit, the Miles Declaration discussed at
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`pages 9-11 of the Int’l Business Machines Corp. v. Intellectual Ventures II LLC
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`decision cited by the Board was an unsworn declaration. Accordingly, that
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`decision likewise does not apply to the Stansbury Affidavit. See Int’l Business
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`Machines Corp. v. Intellectual Ventures II LLC, Case IPR2015-01323, slip op. 9–
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`11 (PTAB Sept. 27, 2016) (Paper 38).
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`Notwithstanding Ms. Stansbury’s sworn affidavit, the Board suggests that
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`Stevens2 may not have been indexed or publicly accessible. IPR2017-01395,
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`10
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`Paper 8 at 6-7. Respectfully, this conclusion cannot be reconciled with the only
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`evidence of record. Ms. Stansbury is clearly competent to swear to the public
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`availability of Stevens2. As reflected in her sworn affidavit, she is an employee of
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`Cornell University Library in the Original Cataloguing Unit and has held the
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`position since 1996. Ex.1063. She therefore has firsthand knowledge of the
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`library’s cataloging practices in the relevant timeframe. No evidence of record
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`contradicts Ms. Stansbury’s sworn statement that the Cornell University Library
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`made Stevens2 publicly available in 1995. Ms. Stansbury’s declaration is more
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`than sufficient to demonstrate the prior art status of Stevens2.
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`Further, Stevens2 itself corroborates the prior art status of Stevens2 shown
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`by Ms. Stansbury’s sworn affidavit. Namely, the copy relied upon by the
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`Petitioner recites that it is the “24th Printing 2010” and bears a 1995 copyright
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`date. Ex.1013.010. Nevertheless, the Board reached the opposite conclusion and
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`determined that Stevens2, “on its face”, contradicts Petitioner’s contention that
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`Stevens2 is prior art. Respectfully, the Board mistakes an edition (which signifies
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`revisions) from a printing (which signifies additional printed copies of the same
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`book).3 Had Stevens2 as submitted been a new edition, it would have been
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`3 For corroboration of the plain meanings of “printing” and “edition” see Ex.1095
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`(“A reprint means more copies are being printed with no substantial changes.
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`U.S. Patent No. 8,805,948
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`identified as such, and would have had a later copyright date and a different ISBN.
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`Yet Stevens2 as submitted does not indicate that it is anything other than the first
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`edition, and bears the same 1995 copyright date and ISBN as the 1995 first
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`printing.4
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`Moreover, the fact that Stevens2 has been reprinted 23 times in the ten years
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`following its first publication shows that the book was widely consumed by the
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`public. Consistent with this, Petitioner’s expert attested that Stevens2 was
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`“standard reference book on TCP/IP” that was “widely cited and relied upon,”
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`“well known resources to a POSA” (Petition at 15 (citing Ex.1003 at ¶¶21-88,
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`including ¶¶27, 60, and FN3), 45 (citing Ex.1003 at ¶1215), FN9). Dispelling any
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`doubt that Stevens2 is a prior art reference, the 1997 Provisional Application
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`60/061,809 from which the 948 Patent claims its earliest filing date also cites to
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`Perhaps a few typos are being fixed. A new edition means that there has been a
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`substantial change”).
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`4 Compare Ex.1013.010 (showing the September 2010 24th printing of Stevens2
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`with a 1995 copyright and an ISBN of 0-201-63354-X) with Ex.1096 (showing
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`“first printing,” a 1995 copyright date and an ISBN of 0-201-63354-X).
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`5 See FN2.
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`12
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`Stevens2. See Ex.1031.009 (“According to W. Richard Stevens and Gary Write in
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`their book ‘TCP/IP Illustrated Volume 2’, TCP operated without experiencing any
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`exceptions between 97 and 100 percent of the time in local area networks”); see
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`also Petition at 15 (citing Ex.1003 at ¶¶21-88, including ¶27 and FN3).
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`3.2.
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`The Board Misapplied the Legal Standard for Institution of a
`Trial
`Respectfully, in overlooking or misapprehending this evidence regarding
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`Stevens2’s status as prior art in the Petition and the accompanying exhibits, the
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`Board applied the incorrect standard for determining institution. The Board
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`applied a heightened standard for public availability that is not found in the statute
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`regarding institution. Petitioner must only demonstrate a reasonable likelihood of
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`success, not conclusive proof of public accessibility as the Board ultimately
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`required. See, e.g., Coalition for Affordable Drugs IV LLC, IPR2015-01076, Paper
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`No. 33 at 6 (PTAB Oct. 19, 2015); see also IPR2017-0425, Paper 8 at 26.
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`Indeed, the Blue Calypso case, on which the Board relies, does not support
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`the Board’s conclusion and instead illustrates that the Board applied the incorrect
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`standard. In the underlying Blue Calypso CBM, the Board instituted trial over the
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`Patent Owner’s criticism of a declaration supporting the public availability of a
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`reference. CBM2013-00033, Paper 10 at 23-24. Specifically, the Board noted that
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`“[i]n any case, this contention is premature. Patent Owner will have the
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`opportunity to depose [the declarant] and present evidence to establish facts that
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`will support Patent Owner’s position.” Id. at 24. The Board also noted that it was
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`incumbent on the Patent Owner to submit evidence casting doubt on the prior art
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`status of the reference6—not merely attack the weight that should be given to
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`evidence of its prior art status. Id. at 24 (noting that “Patent Owner has not
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`presented sufficient arguments to cast doubt on any of” the statements in the
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`declaration.) The Federal Circuit, on the other hand, was considering an appeal in
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`which the Board was applying the trial standard for evidence of public
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`accessibility (i.e., post-institution), ultimately finding a reference not to be prior
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`art. See Blue Calypso, 815 F.3d at 1348. The proper standard for pre-institution is
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`whether a “threshold showing” has been made that the reference is reasonably
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`likely to be publicly available prior art, not whether trial-worthy evidence
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`conclusively establishes a reference is prior art. See id.
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`Similarly,
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`the Board’s decision
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`is
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`inconsistent with prior opinions
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`specifically noting that evidentiary objections, such as hearsay, are to be resolved
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`6 Petitioner fully recognizes that it is Petitioner’s burden to demonstrate that
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`Stevens2 is prior. Petitioner submitted a sworn affidavit to this effect and the
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`reference itself corroborates that it is prior art. Petitioner has met its burden
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`demonstrating a threshold showing. Yet in response, Patent Owner offers no
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`evidence of its own contradicting Petitioner’s contention.
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`after institution. See, e.g., IPR2017-0425, Paper 8 at 26 (instituting IPR over
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`hearsay objection to publication date raised in preliminary response because
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`“objections to evidence such as the one advanced by [patent owner] are properly
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`made and resolved via procedures” available after institution).
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`In sum, Petitioners included evidence sufficient to make the required
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`threshold showing pre-institution. The Petition cites Ms. Stansbury’s sworn
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`affidavit (Petition at 45); identifies the copyright date (which is roughly two years
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`prior to the earliest possible priority date) (see Petition at vii, 15 (citing Ex.1003 at
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`¶¶21-88, including ¶60), FN9; see also Ex. 1013.010); points out that Patent
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`Owner’s own patents reference Stevens2 (see Petition at 15 (citing Ex.1003 at
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`¶¶21-88, including ¶¶ 27, 60, and FN3); see also Ex.1031.009); and cites to an
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`expert declaration attesting to the date, wide availability and use of Stevens2
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`reference book (see Petition at 15 (citing Ex.1003 at ¶¶21-88, including ¶¶ 27, 60,
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`and FN3), 45 (citing Ex.1003 at 1237)). This is more than sufficient to demonstrate
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`a threshold showing of the prior art status of Stevens2.
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`4.
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`CONCLUSION
`For the foregoing reasons, Petitioners respectfully requests the Board
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`institute Inter Partes review of U.S. Patent No. 8,805,948.
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`7 See FN2.
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`Dated: December 22, 2017
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`U.S. Patent No. 8,805,948
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`Respectfully submitted,
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`
`/s/ Garland T. Stephens
`Garland T. Stephens, Reg. No. 37,242
`Weil, Gotshal & Manges LLP
`700 Louisiana, Suite 1700
`Houston, TX 77002
`Tel: (713) 546-5000
`Fax: (713) 224-9511
`garland.stephens@weil.com
`
`Anne M. Cappella, Reg. No. 43,217
`Adrian Percer, Reg. No. 46,986
`Jeremy Jason Lang, Reg. No. 73,604
`Weil, Gotshal & Manges LLP
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`Tel: (650) 802-3141
`Fax: (650) 802-3100
`anne.cappella@weil.com
`adrian.percer@weil.com
`jason.lang@weil.com
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`Attorneys for Petitioner Intel Corporation
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`16
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`Case IPR2017-01395
`U.S. Patent No. 8,805,948
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`CERTIFICATE OF SERVICE
`I hereby certify
`that on December 22, 2017, a copy of
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`PETITIONER’S REQUEST FOR REHEARING UNDER 37 C.F.R. §
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`42.71(d) was served by filing this document through the PTAB’s E2E Filing
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`System as well as delivering a copy via electronic mail upon the following:
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`James M. Glass
`Registration No. 46,729
`Quinn Emanuel Urquhart & Sullivan LLP
`51 Madison Ave., 22nd Fl.
`New York, NY 10010
`Tel.: (212) 849-7000
`Email: jimglass@quinnemanuel.com
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`Joseph M. Paunovich
`Registration No. 59,033
`Quinn Emanuel Urquhart & Sullivan LLP
`865 S. Figueroa Street, 10th Fl.
`Los Angeles, CA 90017
`Tel.: (213) 443-3000
`Email: joepaunovich@quinnemanuel.com
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`Brian E. Mack
`Registration No. 57,189
`Quinn Emanuel Urquhart & Sullivan LLP
`50 California Street, 22nd Fl.
`San Francisco, CA 94111
`Tel.: (415) 875-6600
`Email: brianmack@quinnemanuel.com
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`17
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`Case IPR2017-01395
`U.S. Patent No. 8,805,948
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`Mark Lauer
`Registration No. 36,578
`Silicon Edge Law Group LLP
`7901 Stoneridge Dr., Ste. 528
`Pleasanton, CA 94588
`Tel.: (925) 621-2121
`Email: mark@siliconedgelaw.com
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`Dated: December 22, 2017
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`/s/ Garland T. Stephens
`Garland T. Stephens
`Reg. No. 37,242
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`18
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