Paper 7
`Trials@uspto.gov
`571-272-7822 Entered: December 19, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`INTEL CORPORATION,
`Petitioner,
`
`v.
`
`ALACRITECH, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01705
`Patent 7,673,072 B2
`____________
`
`
`
`Before STEPHEN C. SIU, DANIEL N. FISHMAN, and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`SIU, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822 Entered: December 19, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`INTEL CORPORATION,
`Petitioner,
`
`v.
`
`ALACRITECH, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01705
`Patent 7,673,072 B2
`____________
`
`
`
`Before STEPHEN C. SIU, DANIEL N. FISHMAN, and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`SIU, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2017-01705
`Patent 7,673,072 B2
`
`I. INTRODUCTION
`Intel Corporation (“Petitioner”) requests inter partes review of claims
`1–21 of U.S. Patent No. 7,673,072 B2 (“the ’072 patent,” Ex. 1001) pursuant
`to 35 U.S.C. §§ 311 et seq. Paper 1 (“Pet.”). Alacritech, Inc. (“Patent
`Owner”) filed a preliminary response. Paper 6 (“Prelim. Resp.”). Institution
`of an inter partes review is authorized by statute only 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 and Preliminary
`Response, we conclude the information presented fails to show there is a
`reasonable likelihood that Petitioner would prevail in establishing the
`unpatentability of at least one of claims 1–21 of the ’072 patent.
`
`A. Related Matters
`We are informed that the ’072 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.
`
`B. The ’072 Patent (Ex. 1001)
`The ’072 patent describes a system and method for protocol
`processing of communicated information in computer networks. Ex. 1001,
`2:21–24.
`
`
`
`
`2
`
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`IPR2017-01705
`Patent 7,673,072 B2
`
`C. Illustrative Claim
`Independent claim 1, reproduced below, is illustrative of the claimed
`subject matter:
`1. A method comprising:
`establishing, at a host computer, a transport layer
`connection, including creating a context that includes protocol
`header information for the connection;
`transferring the protocol header information to an
`interface device;
`transferring data from the network host to the interface
`device, after transferring the protocol header information to the
`interface device;
`dividing, by the interface device, the data into segments;
`creating headers for the segments, by the interface
`device, from a template header containing the protocol header
`information; and
`prepending the headers to the segments to form transmit
`packets.
`Id. at 97:17–31.
`
`D. Asserted Grounds of Unpatentability
`Petitioner asserts that claims 1–21 are unpatentable under 35 U.S.C.
`103(a) over Connery.1 Pet. 39.
`
`II. DISCUSSION
`
`A. Claim Construction
`In an inter partes review, we construe claim terms in an unexpired
`patent according to their broadest reasonable construction in light of the
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b).
`Consistent with the broadest reasonable construction, claim terms are
`
`1 US Patent 5,937,169, issued August 10, 1999 (“Connery,” Ex. 1043).
`3
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`IPR2017-01705
`Patent 7,673,072 B2
`
`presumed to have their ordinary and customary meaning as understood by a
`person of ordinary skill in the art in the context of the entire patent
`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed.
`Cir. 2007).
`At this juncture of the proceeding, we determine that it is not
`necessary to provide an express interpretation of any term of the claims.
`
`B. Cited Prior Art Reference
`
`Connery (Ex. 1043)
`Connery describes a system and method of sending data from a data
`source executing a network protocol. Ex. 1043, 2:46–47.
`
`C. Obviousness over Connery
`Petitioner contends claims 1–21 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over Connery. Pet. 14. Relying on the testimony of
`Dr. Robert Horst, Petitioner argues that Connery describes all of the claim
`limitations. Id. (citing Ex. 1003).
`Claim 1 recites “creating headers for the segments, by the interface
`device, from a template header” and “prepending the headers to the
`segments.” Petitioner argues that “[t]he earliest filed priority application,
`Provisional Patent Application No. 60/061,809 [the ’809 application] filed
`on October 14, 1997 . . . does not include a written description of these
`limitations” and that written description support for the cited claim
`limitations “first appears in the later Provisional Patent Application No.
`60/098,296 [the ’296 application] filed on August 27, 1998 . . . and not in
`the 1997 Provisional.” Pet. 29. Hence, Petitioner argues that the ’072 patent
`is entitled to a priority date of August 27, 1998, but is not entitled to priority
`
`4
`
`
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`IPR2017-01705
`Patent 7,673,072 B2
`
`to October 14, 1997. Petitioner’s proposed grounds of unpatentability rely
`on Connery, which has a priority date of October 29, 1997.
`Patent Owner argues that the ’809 application discloses a “buffer fifo”
`in which “TCP/IP headers” are created and that “data is dmad from host
`memory into the frame to create an MSS-sized segment.” Prelim. Resp. 18–
`19 (quoting Ex. 1031 .060-.061). Patent Owner further argues that “this
`functionality [of concatenating headers to the payload when forming a TCP
`or IP packet] would have been easily understood by a POSA as implicit in
`the packet creation process.” Prelim. Resp. 16. Hence, Patent Owner argues
`that one of ordinary skill in the art would have known that headers are
`concatenated to payload data.
`As Patent Owner also indicates, Petitioner’s expert (Dr. Robert Horst)
`explains that “[b]y the mid 1990s, TCP/IP was a firmly entrenched standard
`and was a widespread networking protocol” and that “detailed descriptions
`of the protocols . . . were widely available.” Ex. 1003 ¶ 26. Dr. Horst also
`testifies that it was known to those of ordinary skill in the art that
`“application data [is] accompanied by an application header [and that the]
`application header-data combination becomes the application data of a TCP
`segment.” Id. ¶ 27. Dr. Horst provides further evidence that it was known
`to those of ordinary skill in the art that a header may be prepended (i.e.,
`attached in the front of) data. Id. (citing Ex. 1008 (“Stevens”) .034, Fig.
`1.7). As Patent Owner indicates, Stevens discloses that it would have been
`known to those of ordinary skill in the art that any of an “application header”
`(i.e., application header-data combination, as Stevens discloses) is
`prepended to “user data” and that any of a TCP header, IP header, or
`Ethernet header (i.e., a “header”) is attached (or prepended) to “application
`
`5
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`IPR2017-01705
`Patent 7,673,072 B2
`
`data.” See, e.g., Ex. 1008, Fig. 1.7 (illustrating headers that are prepended to
`data). It other words, Stevens discloses that it would have been known to
`one of ordinary skill in the art that headers are prepended to data. We also
`credit Petitioner’s expert Dr. Horst’s testimony that “TCP/IP” (in which
`headers were known to be prepended to data) was in “widespread” use and
`would have been known to one of ordinary skill in the art.
`Petitioner also argues that “[t]he 1997 Provisional does not contain a
`written description for protocols other than TCP/IP” (emphasis omitted) so
`that the instant claims “are not supported by the 1997 Provisional[] and are
`not entitled to the filing date of the 1997 Provisional.” Pet. 30, 33.
`Petitioner does not assert or demonstrate sufficiently that any of the
`challenged claims recites “protocols other than TCP/IP.” Therefore, even
`assuming Petitioner to be correct that the “1997 Provisional” does not
`disclose “protocols other than TCP/IP,” we cannot agree with Petitioner.
`Hence, we agree that one skilled in the art can reasonably conclude
`that the inventor had possession of the disputed claim limitation (i.e.,
`“creating headers for the segments, by the interface device, from a template
`header” and “prepending the headers to the segments”) at the priority date of
`the ’809 application, i.e., October 14, 1997. As such, Petitioner has failed to
`demonstrate sufficiently that Connery, which has a filing date of October 29,
`1997, qualifies as prior art.
`
`III. CONCLUSION
`For the foregoing reasons, we determine that the information
`presented in the Petition does not establish a reasonable likelihood that
`Petitioner would prevail in showing the unpatentability of at least one of
`claims 1–21 of the ’072 patent based on the ground asserted by Petitioner.
`6
`
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`IPR2017-01705
`Patent 7,673,072 B2
`
`IV. ORDER
`
`Accordingly, it is:
`
`ORDERED that the Petition is denied and no inter partes review is
`
`instituted.
`
`
`
`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
`
`
`
`7
`
`
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