Trials@uspto.gov
`571.272.7822
`
`
`Paper No. 11
`Filed: December 15, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`VERITAS TECHNOLOGIES LLC,
`Petitioner,
`
`v.
`
`REALTIME DATA LLC d/b/a IXO,
`Patent Owner.
`_______________
`
`Case IPR2017-01690
`Patent 9,054,728 B2
`_______________
`
`Before JASON J. CHUNG, SCOTT C. MOORE, and KAMRAN JIVANI,
`Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`Grant of Motion for Joinder
`37 C.F.R. § 42.122(b)
`
`
`
`
`
`
`
`
`
`571.272.7822
`
`
`Paper No. 11
`Filed: December 15, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`VERITAS TECHNOLOGIES LLC,
`Petitioner,
`
`v.
`
`REALTIME DATA LLC d/b/a IXO,
`Patent Owner.
`_______________
`
`Case IPR2017-01690
`Patent 9,054,728 B2
`_______________
`
`Before JASON J. CHUNG, SCOTT C. MOORE, and KAMRAN JIVANI,
`Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`Grant of Motion for Joinder
`37 C.F.R. § 42.122(b)
`
`
`
`
`
`
`
`
`
`
`Case IPR2017-01690
`Patent 9,054,728 B2
`
`
`I.
`
`INTRODUCTION
`
`A. Background
`On June 28, 2017, Veritas Technologies LLC (“Petitioner”) filed a
`Petition (Paper 1, “Pet.”) requesting inter partes review of claims 104 and
`105 (“the challenged claims”) of U.S. Patent No. 9,054,728 B2 (Ex. 1001,
`“the ’728 patent”). Concurrently with the Petition, Petitioner filed a Motion
`for Joinder (Paper 3, “Mot.”), requesting that this proceeding be joined with
`Dell, Inc. v. Realtime Data LLC d/b/a IXO, Case IPR2017-00179 (“179
`IPR”). Mot. 1. Realtime Data LLC (“Patent Owner”) did not file an
`Opposition to the Motion for Joinder and did not file a Preliminary
`Response.
`We have jurisdiction under 35 U.S.C. § 314(a), which provides that an
`inter partes review may not be instituted “unless . . . there is a reasonable
`likelihood that the Petitioners would prevail with respect to at least 1 of the
`claims challenged in the petition.” For the reasons discussed below, we
`institute an inter partes review of all challenged claims and grant
`Petitioner’s Motion for Joinder.
`
`2
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`Case IPR2017-01690
`Patent 9,054,728 B2
`
`B. Related Proceedings and Asserted Grounds of Unpatentability
`In the 179 IPR, we instituted inter partes review of the ’728 patent on
`the following two grounds:
`1. Claims 1–3, 9, 10, 15, 20, and 24 under 35 U.S.C.
`§ 103(a) as unpatentable over Franaszek1, Hsu2, and Sebastian3;
`and
`
`2. Claims 4–8 under 35 U.S.C. § 103(a) as unpatentable
`over Franaszek, Hsu, Aakre4, and Sebastian.
`179 IPR Paper 20, 33.
`The Petition in this proceeding challenges the same claims on
`identical grounds of unpatentability, and relies on the same evidence and
`arguments as presented in the 179 IPR. Pet. 1; Mot. 1–2. Petitioner
`represents that “[i]ntentionally, the Petition is nearly word-for-word identical
`to the petition in the [179] IPR in an effort to avoid multiplication of issues
`before the Board” and relies upon similar evidence, including an “essentially
`identical” expert declaration. Mot. 1–2. Petitioner notes that its Petition is
`“supplemented with additional support.” Pet. 1. Patent Owner did not file a
`Preliminary Response and has not presented any arguments regarding the
`merits of the Petition.
`
`
`1 U.S. Patent No. 5,870,036, issued Feb. 9, 1999 (179 IPR Ex.
`1004).
`2 W. H. Hsu and A. E. Zwarico, “Automatic Synthesis of Compression
`Techniques for Heterogeneous Files,” Software—Practice and Experience,
`Vol. 25(10), 1097–1116 (1995) (179 IPR Ex. 1005).
`3 U.S. Patent No. 6,253,264 B1, issued June 26, 2001 (179 IPR Ex. 1030).
`4 U.S. Patent No. 4,956,808, issued Sept. 11, 1990 (179 IPR Ex. 1021).
`
`3
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`Case IPR2017-01690
`Patent 9,054,728 B2
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`For the above reasons, and in particular the fact that the present
`Petition is virtually identical to the petition in the 179 IPR, we determine
`Petitioner has demonstrated sufficiently under 35 U.S.C. § 314 that an inter
`partes review should be instituted in this proceeding on the same grounds of
`unpatentability as the grounds on which we instituted inter partes review in
`the 179 IPR.
`C. The ’728 Patent
`The ’728 patent, titled “Data Compression Systems and Methods,”
`discloses systems and methods for analyzing data within a data block in
`order to select a method of compression to apply to the data Ex. 1001, Title,
`Abst. The disclosed systems and methods provide “fast and efficient data
`compression using a combination of content independent data compression
`and content dependent data compression.” Id. at 3:59–62.
`D. Challenged Claims
`Challenged claims 1 and 24 are independent, and the remaining
`challenged claims all depend from claim 1. Claims 1 and 24 are reproduced
`below.
`
`1. A system for compressing data comprising;
`a processor;
`one or more content dependent data compression encoders;
`and
`a single data compression encoder;
`wherein the processor is configured:
`to analyze data within a data block to identify one or more
`parameters or attributes of the data wherein the
`analyzing of the data within the data block to identify
`the one or more parameters or attributes of the data
`excludes analyzing based solely on a descriptor that is
`indicative of the one or more parameters or attributes of
`the data within the data block;
`
`4
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`Case IPR2017-01690
`Patent 9,054,728 B2
`
`
`to perform content dependent data compression with the
`one or more content dependent data compression
`encoders if the one or more parameters or attributes of
`the data are identified; and
`to perform data compression with the single data
`compression encoder, if the one or more parameters or
`attributes of the data are not identified.
`. . . .
`24. A system for compressing data comprising;
`a processor;
`one or more data compression encoders; and
`a default data compression encoder;
`wherein the processor is configured:
`to analyze data within a data block to identify one or more
`parameters or attributes of the data wherein the
`analyzing of the data within the data block to identify
`the one or more parameters or attributes of the data
`excludes analyzing based solely on a descriptor that is
`indicative of the one or more parameters or attributes of
`the data within the data block; and
`to compress the data block to provide a compressed data
`block, wherein if one or more encoders are associated
`with the one or more parameters or attributes of the
`data, compressing the data block with at least one of the
`one or more data compression encoders, [24f] otherwise
`compressing the data block with the default data
`compression encoder.
`E. Motion for Joinder
`An inter partes review may be joined with another inter partes
`review, subject to certain statutory provisions:
`(c) JOINDER.—If the Director institutes an inter partes review,
`the Director, in his or her discretion, may join as a party to that
`inter partes review any person who properly files a petition under
`section 311 that the Director, after receiving a preliminary
`response under section 313 or the expiration of the time for filing
`
`5
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`Case IPR2017-01690
`Patent 9,054,728 B2
`
`such a response, determines warrants the institution of an inter
`parties review under section 314.
`35 U.S.C. § 315(c); see also 37 C.F.R. § 42.122 (Any request for joinder
`must be filed, as a motion under § 42.22, no later than one month after the
`institution date of any inter partes review for which joinder is requested).
`A motion for joinder should (1) set forth reasons why joinder is
`appropriate; (2) identify any new grounds of unpatentability asserted in the
`petition; (3) explain what impact (if any) joinder would have on the trial
`schedule for the existing review; and (4) address specifically how briefing
`and discovery may be simplified. See, e.g., Kyocera Corp. v. Softview LLC,
`Case IPR2013-00004, Paper 15. As the moving party, Petitioner bears the
`burden of proving that it is entitled to the requested relief. 37 C.F.R.
`§ 42.20(c).
`As an initial matter, the present Motion for Joinder meets the
`requirements of 37 C.F.R. § 42.122(b) because the Motion was filed on June
`28, 2017, which is not later than one month after the 179 IPR was instituted
`on May 30, 2017.
`Additionally, the present Petition challenges the same claims of the
`same patent as those under inter partes review in the 179 IPR, and the
`Petition also asserts the same grounds of unpatentability based on the same
`prior art and the same evidence, including the same testimony by the same
`declarant. Mot. 1–2; see also Exs. 1031, 1032, 1033 (redlines comparing the
`Petition and supporting declarations from this proceeding with those from
`the 179 IPR). The Petition does not assert any other grounds of
`unpatentability not already of record in the 179 IPR. Indeed, the Petition
`repeats almost verbatim most of the content of the petition in the 179 IPR.
`
`6
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`Case IPR2017-01690
`Patent 9,054,728 B2
`
`See Pet. 1; Mot. 1–2; Ex. 1031. Petitioner notes that its Petition is
`“supplemented with additional support.” Pet. 1. Based upon our review of
`the relines comparing the Petition and supporting declarations to those from
`the 179 IPR, we determine this “additional support” does not change
`significantly the asserted grounds of unpatentability or the evidence and
`arguments supporting those grounds. See Exs. 1031, 1032, 1033.
`Additionally, Petitioner asserts that granting joinder would not require any
`alterations to the existing scheduling order in the 179 IPR. Mot. 6.
`Petitioner also represents that the lead petitioner in the 179 IPR (Dell) does
`not oppose joinder of the present proceeding. Id. at 2, 8.
`According to Petitioner, joinder will promote the efficient
`determination of validity of the challenged claims of the ’728 patent, as well
`as simplify briefing and discovery. Id. at 7. Petitioner asserts that Patent
`Owner would not be prejudiced because the schedule of the 179 IPR would
`be unchanged, and Patent Owner would not incur additional costs or burden
`because of the overlap between the present Petition and the 179 IPR petition.
`Id. at 8.
`Based on the facts and circumstances discussed above, we determine
`Petitioner has established good cause for joining this proceeding with the
`179 IPR. Specifically, we find that joinder of this proceeding with the 179
`IPR is unlikely to require any delay or modification to the scheduling order
`already in place for the 179 IPR. We determine that Patent Owner will not
`be prejudiced unduly by the joinder of these proceedings, and joining
`Petitioner’s identical challenges to those in the 179 IPR will lead to greater
`efficiency, while conserving the resources of both the parties and the Board.
`Consequently, granting the Motion for Joinder under these circumstances
`
`7
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`Case IPR2017-01690
`Patent 9,054,728 B2
`
`would help “secure the just, speedy, and inexpensive resolution” of these
`proceedings. See 37 C.F.R. § 42.1(b). For the above reasons, we conclude
`that the Motion for Joinder should be granted.
`
`
`II. ORDER
`For the reasons given, it is
`ORDERED that pursuant to 35 U.S.C. § 314, an inter partes review in
`IPR2017-01690 is hereby instituted on the following grounds:
`1.
`Claims 1–3, 9, 10, 15, 20, and 24 under 35 U.S.C. § 103(a) as
`unpatentable over Franaszek, Hsu, and Sebastian, and
`2.
`Claims 4–8 under 35 U.S.C. § 103(a) as unpatentable over
`Franaszek, Hsu, Aakre, and Sebastian;
`FURTHER ORDERED that Petitioner’s Motion for Joinder is
`granted, and Petitioner is joined as a petitioner in IPR2017-00179;
`FURTHER ORDERED that IPR2017-01690 is hereby joined with
`IPR2017-00179;
`FURTHER ORDERED that the grounds of unpatentability on which
`trial was instituted in IPR2017-00179 remain unchanged and remain the
`only grounds on which trial has been instituted;
`FURTHER ORDERED that the Scheduling Order entered in
`IPR2017-00179 (179 IPR Paper 21) as modified by the parties Joint
`Stipulation (179 IPR Paper 30), and our Order on Consolidation and
`Coordination (179 IPR Paper 29), shall remain unchanged and shall govern
`the joined proceeding;
`FURTHER ORDERED that Petitioner and the petitioners in IPR2017-
`00179 and IPR2017-00808 file all papers jointly in accordance with the
`
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`Case IPR2017-01690
`Patent 9,054,728 B2
`
`instructions and procedures set forth in our Order on Consolidation and
`Coordination (179 IPR Paper 29);
`FURTHER ORDERED that IPR2017-01690 is terminated under
`37 C.F.R. § 42.72, and all further filings in the joined proceeding shall be
`made in IPR2017-00179 (e.g., joint papers required by our Order on
`Consolidation and Coordination (179 IPR Paper 29) shall be filed in
`IPR2017-00179 and IPR2017-00808, but not in IPR2017-01690);
`FURTHER ORDERED that copies of this Decision be entered into
`the records of IPR2017-00179 and IPR2017-00808; and
`FURTHER ORDERED that the case captions in IPR2017-00179 and
`IPR2017-00808 be modified to reflect the joinder of this proceeding with
`IPR2017-00179 in accordance with the attached example.
`
`
`
`
`
`
`
`9
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`Case IPR2017-01690
`Patent 9,054,728 B2
`
`FOR PETITIONERS:
`Jonathan Link
`Lisa Nguyen
`jonathan.link@lw.com
`Bob Steinberg
`lisa.nguyen@lw.com
`bob.steinberg@lw.com
`
`FOR PATENT OWNER:
`William Rothwell
`Kayvan Noroozi
`william@noroozipc.com
`kayvan@noroozipc.com
`
`10
`
`
`
`Trials@uspto.gov
`571.272.7822
`
`
`
`Example Case Caption for Joined Proceeding
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`DELL INC., EMC CORPORATION, HEWLETT-PACKARD
`ENTERPRISE CO., HP ENTERPRISE SERVICES, LLC, VERITAS
`TECHNOLOGIES, LLC, and TERADATA OPERATIONS, INC.,
`Petitioners,
`
`v.
`
`REALTIME DATA LLC,
`Patent Owner.
`_______________
`
`Case IPR2017-001791
`Case IPR2017-00808
`[Consolidated]
`
`Patent 9,054,728 B2
`_______________
`
`
`
`
`1 Case IPR2017-01690 has been joined with Case IPR2017-00179.
`
`11
`
`
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