Paper 7
`Trials@uspto.gov
`571-272-7822 Entered: June 5, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`INTEL CORPORATION,
`Petitioner,
`
`v.
`
`ALACRITECH, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00234
`Patent 8,805,948 B2
`____________
`
`
`
`Before STEPHEN C. SIU, DANIEL N. FISHMAN, and
`CHARLES BOUDREAU, Administrative Patent Judges.
`
`FISHMAN, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`I. INTRODUCTION
`Intel Corporation (“Petitioner”) requests inter partes review of claims
`1, 3, 6–8, 17, 19, 21, and 22 of U.S. Patent No. 7,337,948 B2 (“the ’948
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`patent,” Ex. 1001) pursuant to 35 U.S.C. §§ 311 et seq. Paper 2 (“Petition”
`or “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). Upon consideration of the Petition and
`Preliminary Response, we conclude the information presented shows there is
`a reasonable likelihood that Petitioner would prevail in establishing the
`unpatentability of at least one of the challenged claims 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. 5; Paper 4, 1.
`Petitioner identifies numerous other related patents and other petitions
`related to this and other related patents. Pet. 5–7. Of particular note are
`IPR2017-01395 (“the 1395 IPR”) and IPR2017-01729 (seeking joinder with
`IPR2017-01395) challenging the ’948 patent. Pet. 6. IPR2017-01395, filed
`by Intel, challenging all claims challenged in this petition and relying on
`essentially the same arguments, evidence, and references. We did not
`address the substance of the arguments in the IPR2017-01395 petition but,
`instead, denied institution in IPR2017-01395 due to insufficient evidence of
`printed publication status of one reference relied upon in the asserted
`grounds. See IPR2017-01395 Paper 8.
`
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`Patent 8,805,948 B2
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`
`B. The ’948 Patent
`The ’948 patent describes a system and method for accelerating data
`transfer using an intelligent network interface card (“INIC”) or
`communication processing device (“CPD”). Ex. 1001, Abstract. The INIC
`or CPD provides a fast-path that avoids host protocol processing for larger
`messages that span multiple packets in a transmission. Id. According to the
`’948 patent, layered protocol models (such as TCP/IP or the OSI layered
`model) utilize header information for processing in each of the layers of the
`protocol stack. See id. at 1:33–3:19. According to the ’948 patent, as
`complexity and popularity of such networks grew, the processing burden on
`a host CPU for processing these protocols grew proportionally. Id. at 3:20–
`35.
`
`The ’948 patent purports to reduce this bottleneck for processing on a
`host computer by providing fast-path processing in which processing for
`headers of a layered network protocol is offloaded from the host computer to
`an INIC or CPD. See id. at 4:65–5:6.
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`
`Figure 1 of the’948 patent is reproduced below.
`
`
`
`Figure 1 is depicts a system including a host computer having a CPD
`for accelerating network communications. Id. at 4:9–12. Figure 1 shows
`host 20 connected with remote host 22 via network 25. Id. at 4:65–66. Host
`20 includes CPU 28 and CPD 30 coupled via host bus 33. Id. at 5:6–7.
`CPD 30 processes network protocols and includes a microprocessor and
`memory buffers controlled by a direct memory access (“DMA”) controller.
`Id. at 5:8–10. A connection context (not shown in Figure 3) stores various
`elements of information regarding the connection between host 20 and
`remote host 22 and may be stored in a communication control block
`(“CCB”) within CPD 30 or storage 35. Id. at 5:22–29.
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`Figure 3 is reproduced below.
`
`
`Figure 3 is a flow chart describing processing of a received message.
`Id. at 4:17–18. At step 47, a packet is received in a CPD (or INIC) and, at
`step 57, the CPD validates various protocol headers of the received packet
`and summarizes the results. Id. at 6:30–34. The summary includes a
`determination as to whether the packet is a candidate for fast-path
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`processing. Id. at 6:34–36. Step 59 tests whether the status indicates the
`packet is a candidate for fast-path processing. Id. at 6:36–40. If the packet
`is not a candidate for fast-path processing, step 61 sends the packet is sent to
`the host for standard protocol processing by the CPU within the host system.
`Id. at 6:40–43. Step 53 tests whether portions of the packet match the status
`information in the CCB and, if so, the packet is processed at step 69 by fast-
`path processing within the CPD. Id. at 6:62–67.
`
`C. Illustrative Claim
`Claims 1 and 17, reproduced below, are the independent claims
`among the challenged claims of the ’948 patent and are 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;
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`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
`Ex. 1001, 19:42–20:7.
`17. An apparatus for network communication, the
`apparatus comprising:
`a host computer running a protocol stack including an
`Internet Protocol (IP) layer and a Transmission Control Protocol
`(TCP) layer, the protocol stack adapted to establish a TCP
`connection for an application layer running above the TCP layer,
`the TCP connection being defined by source and destination IP
`addresses and source and destination TCP ports;
`a network interface that is connected to the host computer
`by an input/output bus, the network interface adapted to parse the
`headers of received packets to determine whether the headers
`have the IP addresses and TCP ports that define the TCP
`connection and to check whether the packets have certain
`exception conditions, including whether the packets are IP
`fragmented, have a FIN flag set, or are out of order, the network
`interface having logic that directs any of the received packets that
`have the exception conditions to the protocol stack for
`processing, and directs the received packets that do not have any
`of the exception conditions to have their headers removed and
`their payload data stored 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 payload
`data that came from different packets of the received packets.
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`Id. at 22:1–26.
`
`D. Asserted Grounds of Unpatentability
`Petitioner asserts that claims 1, 3, 6–8, 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. 18.
`Petitioner relies on the testimony of Dr. Robert Horst (Ex. 1003) in
`support of its assertions.
`
`II. DISCUSSION
`A. Stevens2 Printed Publication
`In a prior proceeding, we determined Petitioner had not met its burden
`of establishing a reasonable likelihood that Stevens2 was a printed
`publication publicly accessible to an interested person in the art. IPR2017-
`01395 Paper 8, 4–8; see also Paper 13. In that prior petition, Petitioner
`relied solely on the sworn affidavit of Ms. Stansbury (Ex. 1063) to which we
`accorded little weight. See IPR2017-01395 Paper 8, 4–7; see also Paper 13.
`Here, Petitioner proffers the same sworn affidavit of Ms. Stansbury
`(Ex. 1063) arguing it, along with the copyright date, was sufficient to
`establish a prima facie showing of printed publication status of Stevens 2.
`Pet. 19 (citing Ex. 1063). In the earlier petition (the 1395 IPR), we found
`
`
`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).
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`that evidence, without more, insufficient to establish a reasonable likelihood
`that Stevens2 is a printed publication. IPR2017-01395 Paper 8, 4–7; see
`also Paper 13.
`In this Petition, in addition to the same Stansbury affidavit (Ex. 1063),
`Petitioner asserts that Dr. Horst testifies Stevens2 was a well-known, widely
`available reference book on the TCP/IP standards. Pet. 19 (citing Ex. 1003
`¶ 27). Without further corroborating, objective evidence, Dr. Horst’s
`unsupported statement adds little weight to the cumulative evidence of
`record regarding printed publication status of Stevens2.
`The Petition further cites a variety of other documents (“additional
`Exhibits”) that allegedly pre-date the critical date of the’948 patent and cite
`the same Stevens2 reference, thus, allegedly, evidencing that Stevens2 was
`publicly accessible prior to the critical date of the ’948 patent. Pet. 20–22.
`Among the additional Exhibits is U.S. Patent No. 6,011,795 (Ex. 1096) and
`U.S. Provisional Patent Application No. 60/061,809 (Ex. 1031)—both
`documents published by the U.S. Patent and Trademark Office prior to the
`critical date of the ’948 patent and both citing Stevens2 as a background
`reference. Pet. 20. Both of these exhibits are self-authenticating public
`records of the Patent Office. See FRE 901(b)(7). However, the statements
`within these two documents are not statements regarding public accessibility
`of Stevens2 by the Patent Office but, instead, are statements by the
`applicants in the corresponding patent applications. See FRE 803(8)(A)(i).
`A further document Petitioner relies on for evidencing public accessibility of
`Stevens2 is a request for comment (“RFC”) from the Internet Engineering
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`Task Force (“IETF”).4 Pet. 22 (citing Ex. 1107 (“RFC 2001”)). Although
`Petitioner provides no explanation regarding the weight to be afforded this
`RFC published by the IETF or the Patent Office publications, we
`acknowledge that some weight should be accorded this additional evidence
`of Stevens2’s public accessibility.
`Patent Owner argues this Petition fails to present evidence that any of
`the additional Exhibits are, themselves, printed publications. Prelim Resp.
`34 (citing Coalition for Affordable Drugs IV LLC v. Pharmacyclics, Inc,,
`Case IPR2015-01076 Paper 33, 6 (PTAB Oct.19, 2015); Cisco Sys., Inc. v.
`C-Cation Techs., LLC, Case IPR2014-00454 Paper 12, 7-10 (PTAB
`Aug. 29, 2014)). We are not persuaded. Coalition for Affordable Drugs is
`distinguishable from the facts here. There, the Board held that Petitioner’s
`conclusory statement that a reference relied upon in an asserted ground was
`a printed publication, even coupled with an expert’s testimony to the same
`effect, was insufficient to establish printed publication status of the
`reference.
`But neither of these statements explains how NCT00849654
`qualifies as a printed publication as of February 2, 2009, as
`Petitioner asserts. And Dr. Atanackovic has not attested to any
`personal knowledge of the public accessibility or dissemination
`of NCT00849654 in February 2009. Given his unsupported
`assertions, we give little to no weight to Dr. Atanackovic’s
`conclusory testimony that NCT00849654 constitutes prior art.”
`
`
`4 Petitioner mentions IETF as the publisher of RFCs in the context of other
`RFCs discussed in reference to the technological background of the TCP/IP
`protocols. See, e.g., Pet. 25. Although not express in the Petition, we accept
`that RFC 2001 (Ex. 1107) is similarly published by the IETF.
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`IPR2015-01076 Paper 33, 7. Here, Petitioner has identified the additional
`Exhibits as evidence in support of its assertion that Stevens2 is a printed
`publication—the additional Exhibits per se are not references applied in the
`asserted ground for unpatentability. Furthermore, the Board’s decision in
`Cisco is distinguished from the facts here. There, the Board addresses
`improper incorporation by reference in which the petition enumerated in
`footnotes related testimony within its expert’s declaration where the expert’s
`testimony amounted to several additional pages of analysis. IPR2014-00454
`Paper 12, 7–8. Here, the Petitioner is not incorporating the additional
`Exhibits into analysis of the asserted grounds but merely relies on them as
`supporting evidence regarding printed publication status of Stevens2.
`The cumulative weight of the record, including Dr. Horst’s
`unsupported statement, Ms. Stansbury’s affidavit, RFC 2001, and two
`publications of the U.S. Patent and Trademark Office, is sufficient for
`purposes of this Decision to establish a reasonable likelihood that Stevens2
`is a prior art printed publication.
`
`B. 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
`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). Only terms that are in controversy need to be construed and only to
`the extent necessary to resolve the controversy. See Wellman, Inc. v.
`
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`Eastman Chem. Co., 642 F.3d 1355, 1361 (Fed. Cir. 2011); Vivid Techs.,
`Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`The parties agree that no claim terms require express construction.
`Pet. 40; Prelim. Resp. 21. At this stage of the proceeding, for purposes of
`this Decision, we agree that it is not necessary to provide an express
`interpretation of any claim terms.
`
`C. Discretionary Denial
`The Board has discretion under 35 U.S.C. §§ 314(a) and 325(d) to
`deny review of a submitted petition. Patent Owner argues we should deny
`institution of this Petition under both sections 314(a) and 325(d). Prelim.
`Resp. 21–32.
`
`1. 314(a) Discretion
`In determining whether to exercise our discretion under section
`314(a), we weigh a number of factors. General Plastic Industrial Co., Ltd.
`v. Canon Kabushiki Kaisha, Case IPR2016-01357 (PTAB Sept. 6, 2017)
`(Paper 19) (precedential). Patent Owner argues we should exercise our
`discretion under 35 U.S.C. § 314(a) to deny this Petition based on the factors
`discussed in General Plastic. Prelim. Resp. 21–30. In General Plastic, the
`Board identified a list of seven nonexclusive factors that bear on the issue of
`whether the Board should invoke its discretion to deny institution of an inter
`partes review, based on a follow-on petition on the same patent, under
`35 U.S.C. § 314(a). General Plastic, slip op. at 9–10 (the “General Plastic
`factors”). Patent Owner argues each of the General Plastic factors weighs in
`favor of exercising our discretion to deny institution of this Petition. Prelim.
`Resp. 23–30.
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`Although we agree that some General Plastic factors weigh in favor
`of Patent Owner’s position, for the reasons below, we decline to exercise our
`discretion in this case.
`As an initial matter, Patent Owner has not cited—and we are not
`aware of—any cases extending the application of the General Plastic factors
`to the fact pattern presented here. Specifically, although the present Petition
`is directed to the same claims as the earlier the 1395 IPR, the Petition here is
`based on the identical prior art combinations presented in that earlier
`petition. Unlike in General Plastic and similar cases, Petitioner here has not
`withheld prior art or potential grounds of unpatentability from an earlier
`petition,5 nor is this a case in which a petitioner merely assembled a different
`combination of previously known references in a follow-on petition.6
`Accordingly, General Plastic factors 2 and 4, which relate to withheld prior
`art, would seem to have little, if any, applicability in the context of this case.
`Indeed, to the extent a “length of time that elapsed” prior to “the filing of the
`second petition” factors into our analysis at all in this case, we consider it
`more probative that Petitioner filed the instant petition the same day as our
`decision denying institution in the 1395 IPR, weighing in Petitioner’s favor.
`
`
`5 Cf. Conopco, Inc. v. Proctor & Gamble Co., Case IPR2014-00628,
`Paper 21, 11 (PTAB October 20, 2014) (discouraging filing of a first petition
`that holds back prior art for use in later attacks against the same patent if the
`first petition is denied).
`6 Cf. Alarm.com Inc. v. Vivint, Inc., Case IPR2016-01110, Paper 11, 8
`(PTAB Nov. 28, 2016) (finding Petitioner could not have alleged references
`relied upon in follow-on petition were unknown, because it relied on the
`same references individually in other petitions filed six months earlier).
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`With respect to General Plastic factor 3, although it is apparent that
`Petitioner had already received Patent Owner’s preliminary response and the
`Board’s decision in the 1395 IPR prior to filing the present Petition, we
`determine that this factor also has little relevance in the context of the
`present matter, in which Petitioner has simply re-filed to address an
`evidentiary issue raised in the first matter that resulted in the previous
`non-institution of the 1395 IPR (the printed publication status of Stevens2).
`Likewise, General Plastic factor 5 has little discernible bearing here, as
`Petitioner would have had no apparent reason to file the instant Petition had
`its petition in the 1395 IPR been granted.
`Regarding General Plastic factors 6 and 7, because we have not
`previously considered the merits of any challenge to the claims at issue here
`and there are no other pending cases challenging the same claims, we are not
`persuaded that institution of trial in this case will unduly burden the
`resources of the Board or impact its ability to issue a final determination
`within one year of institution.
`Finally, as noted above, General Plastic enumerates factors that the
`Board has taken into account in determining whether to exercise discretion
`not to institute in cases of serial petitioning. But the exercise of discretion
`is, by its very terms, discretionary—not mandatory—and General Plastic
`does not mandate any particular weighing of the factors or that the Board
`must deny institution when any specific factors weigh in favor of a patent
`owner. That is particularly the case here, where the typical hallmarks of
`abusive, strategic serial petitioning are absent.
`
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`2. 325(d) Discretion
`Patent Owner also argues we should exercise our discretion under
`section 325(d) to deny this Petition because substantially the same art and
`arguments are presented here as were presented in the earlier petition (the
`1395 IPR). Prelim. Resp. 31–32. As discussed supra, we had not
`previously considered the substance of Petitioner’s arguments for
`unpatentability of these challenged claims based on these references.
`Instead, the earlier petition was denied solely due to the lack of sufficient
`evidence supporting the printed publication status of Stevens2.
`Patent Owner further argues Thia and Tanenbaum96 were previously
`considered during prosecution and, thus, Petitioner is asking us to second-
`guess the Examiner’s conclusion of patentability over these references. Pet.
`32. Patent Owner does not point to any substantive consideration of these
`references in the prosecution history and, other than an Examiner’s initialing
`of the references in an Information Disclosure Statement, we discern no
`substantive consideration of either Thia or Tanenbaum96 in the prosecution
`of the ’948 patent.
`Consequently, in this case, we do find that “substantially the same
`prior art or arguments previously were presented to the Office.” 35 U.S.C.
`§ 325(d). Accordingly, we decline to exercise our discretion under section
`325(d) to deny this Petition.
`
`D. 35 U.S.C. § 315(b) Time Bar
`Patent Owner contends that the Petition is time-barred under 35
`U.S.C. § 315(b) because it was filed more than one year after Patent
`Owner’s June 30, 2016, service of a complaint for infringement of the
`’948 patent on Dell Corporation, which Patent Owner asserts to be a privy of
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`Petitioner. Prelim. Resp. 35. In support of this argument, Patent Owner
`alleges as follows:
`According to Intel, shortly after Alacritech filed its Complaint,
`“Dell tendered a contractual claim that Intel indemnify and hold
`it harmless against Alacritech’s claims based on an indemnity
`agreement involving the purchase of Intel’s products.” (Exhibit
`2002 of IPR2017-01391 at 4.) Based on Dell’s demand, Intel
`agreed to “defend and partially indemnify” its customer, Dell.
`(Id. at 5.) In early October, Intel provided Alacritech with notice
`of its intent to intervene in the pending litigation and on October
`31, 2016, Intel filed its motion to formally become a party to the
`ongoing litigation. (Exhibit 2002 of IPR2017-01391.) In its
`Motion to Intervene, Intel argued that it should be permitted to
`join the litigation because “many of Alacritech’s infringement
`allegations . . . against Dell target networking technology that
`Intel supplied.” (Exhibit 2002 of IPR2017-01391 at 1.)
`Thereafter, throughout the litigation, Intel acted and spoke on
`behalf of Dell, including by providing invalidity contentions and
`claim construction arguments on Dell’s behalf. Based on Intel’s
`allegations, it was allowed to intervene in the case. Intel filed
`petitions for inter partes review against all of the asserted
`patents. As a condition of the parties’ stipulated stay of the
`Litigation pending resolution of Intel’s IPRs filed as of
`December 4, 2017, all of the defendants in the case – including
`Dell – agreed to be bound to the same extent as Intel to the results
`of the pending petitions. (Dkt. 449 at ¶ 5.)
`Intel has expressly admitted in the course of the District
`Court proceedings that it became aware of the Complaint shortly
`after it was filed and agreed to indemnify and take over Dell’s
`defense thereof no later than October 2016. While the timing
`and scope of Intel’s indemnity obligations to Dell remains
`subject to discovery motion practice in the District Court case, it
`is clear that Intel was aware from in or around the inception of
`the case that its products and technology were at issue. Intel and
`Dell acted in privity for the purposes of the District Court
`Litigation and equity demands that they be treated as privies for
`Intel’s challenges before this tribunal as well. Allowing Intel to
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`proceed with this petition violates the purpose of the one-year
`bar and its express application to privies. See 157 Cong. Rec.
`S1034, S1041 (March 1, 2011).
`Id. at 35–36.
`Under § 315(b), “[a]n inter partes review may not be instituted if the
`petition requesting the proceeding is filed more than 1 year after the date on
`which the petitioner, real party in interest, or privy of the petitioner is served
`with a complaint alleging infringement of the patent.” Thus, if Patent
`Owner is able to establish that Dell Corporation is a privy of Petitioner, this
`proceeding would be time-barred. On the record before us, however, we are
`unable to ascertain whether Dell Corporation is a privy of Petitioner. As
`explained in the Office Trial Practice Guide, 77 Fed. Reg. 48,756, 48,759
`(Aug. 14, 2012), “[w]hether a party who is not a named participant in a
`given proceeding nonetheless constitutes a ‘real party[] in interest’ or ‘privy’
`to that proceeding is a highly fact-dependent question” that “will be handled
`by the Office on a case-by-case basis taking into consideration how courts
`have viewed the terms ‘real party[] in[] interest’ and ‘privy.’” “A common
`consideration is whether the non-party exercised or could have exercised
`control over a party’s participation in a proceeding.” Id.
`Even accepting as true Patent Owner’s allegations in the Preliminary
`Response (1) that Petitioner has agreed to “defend and partially indemnify”
`Dell Corporation in the district court litigation, (2) that Petitioner filed a
`motion to intervene in the district court litigation, (3) that Petitioner has
`provided invalidity contentions and claim construction arguments in the
`district court litigation, (4) that all of the defendants in the district court
`litigation have agreed to be bound to the same extent as Petitioner by the
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`results of this and other petitions filed by Petitioner, and (5) that Intel
`became aware of the complaint against Dell Corporation shortly after it was
`filed—none of which allegations appear to be supported by evidence
`currently of record in this proceeding—those facts alone would not establish
`that Dell Corporation is a privy of Petitioner. See, e.g., Ericsson Inc. v.
`Intellectual Ventures II LLC, Case IPR2015-01872, Paper 10, 10–14 (PTAB
`Mar. 14, 2016) (agreeing that Ericsson’s intervention in Intellectual
`Ventures’ lawsuit against AT&T supported contention that Ericsson was not
`in privity with AT&T); Caterpillar Inc. v. Esco Corp., Case IPR2015-
`00409, 2015 WL 3826661, at *7 (PTAB June 18, 2015) (“Raptor sought to
`intervene based on the belief that Petitioner could not adequately represent
`Raptor’s interests. That Raptor believed that its interests were not
`adequately represented by Petitioner in the district court suggests Raptor and
`Petitioner are not so closely linked to justify a finding that Raptor is a real
`party in interest here.”); see also Transclean Corp. v. Jiffy Lube Int’l, Inc.,
`474 F.3d 1298, 1306 (Fed. Cir. 2007) (“[A] manufacturer or seller of a
`product who is sued for patent infringement typically is not in privity with a
`party, otherwise unrelated, who does no more than purchase and use the
`product.”); Nestlé USA, Inc. v. Steuben Foods, Inc., Case IPR2015-00195,
`2015 WL 4036033, at *6 (PTAB June 29, 2015) (Paper 51) (rejecting Patent
`Owner’s privity claim that was “primarily based on Petitioner’s purchase of
`allegedly infringing equipment from GEA, and is not based on any other
`type of corporate relationship or joint ownership as to the entities.”);
`Petroleum Geo-Servs. Inc. v. WesternGeco LLC, Case IPR2014-00688, 2014
`WL 7187162, at *10 (PTAB Dec. 15, 2014) (Paper 33) (“The nature of
`shared interests in invalidating the ’607 patent, undertaking a joint defense,
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`and assertion of a common interest privilege does not, without more,
`indicate privity.”).
`Accordingly, on the present record, we conclude that the Petition has
`not been shown to be time-barred under 35 U.S.C. § 315(b).
`
`E. Obviousness over Thia, Tanenbaum96, and Stevens2
`1. Overview of Thia (Ex. 1015)
`Thia discloses a reduced operation protocol engine (“ROPE”) that
`“offloads critical functions of a multiple-layer protocol stack, based on the
`‘bypass concept’ of a fast path for data transfer.” Ex. 1015, 1. ROPE is
`designed as an integrated circuit applicable to processing of OSI Session and
`Transport layer protocols. Id. According to Thia, the ROPE architecture
`provides a bypass to selective process certain send or receive operations in
`the ROPE circuit, thereby bypassing normal processing within the software
`protocol stack of the host processor reducing the processing load on the host.
`Id. at 2.
`Thia’s Figure 1 is reproduced below.
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`Figure 1 depicts Thia’s bypass architecture in which USER A and USER B
`communicate through a network. The host processor for each user provides
`a standard protocol stack (“SPS”), a bypass stack (ROPE chip), a receive
`bypass test, a send bypass test, and shared data shared by all the above
`elements to coordinate processing between SPS and the ROPE chip. Id. at 3.
`The send bypass test identifies outgoing packets that may be transmitted
`through the bypass stack and the receive bypass test identifies an incoming
`protocol data unit (“PDU”) that may be processed through the ROPE circuit.
`Id. The bypass stack (ROPE chip) performs all protocol processing for
`transfer of the data for such identified packets/PDUs that may bypass host
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`processor (SPS) processing. Id. The shared data is used to maintain state
`consistency between the SPS and bypass stack processing. Id. Thia’s
`Figure 2 is reproduced below.
`
`
`Figure 2 is a block diagram of a system incorporating a ROPE chip. A host
`processor is coupled with host memory and a network interface adapter via
`its host processor bus. Id. at 7. The ROPE chip is coupled to the host
`processor bus and to the network interface adapter. Id. The ROPE chip
`includes a protocol processing engine, a direct memory access (“DMA”)
`controller, and a dual ported memory (coupled with the network interface
`adapter and coupled with the DMA controller). Id. The DMA controller is
`used by the ROPE chip to efficiently move data (packets/PDUs) to/from the
`host memory. See id. at 7. Packets/PDUs being processed by the ROPE
`chip are stored in the dual ported memory of the chip. See id.
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`2. Overview of Tanenbaum96 (Ex. 1006)
`Tanenbaum describes general principles of data transmission in
`computer networks including TCP/IP and UDP/IP protocols. See generally
`Ex. 1006. In particular, Tanenbaum96 discloses a “fast path” processing
`solution for reducing overhead processing on a host system processor. See
`Ex. 1006, 583–586.
`
`3. Overview of Stevens2 (Ex. 1013)
`Ste