`571-272-7822
`
`
`Paper 7
`Entered: April 29, 2019
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`JUNIPER NETWORKS, INC.,
`Petitioner,
`
`v.
`
`FINJAN, INC.,
`Patent Owner.
`____________
`
`Case IPR2019-00060
`Patent 7,647,633 B2
`____________
`
`
`Before THOMAS L. GIANNETTI, MIRIAM L. QUINN, and
`PATRICK M. BOUCHER, Administrative Patent Judges.
`
`QUINN, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
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`IPR2019-00060
`Patent 7,647,633 B2
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`
`INTRODUCTION
`I.
`Juniper Networks, Inc. (“Petitioner”) filed a Petition to institute inter
`partes review of claims 1, 8, 14, and 19 of U.S. Patent No. 7,647,633 B2
`(Ex. 1001, “the ’633 patent”). Paper 2 (“Pet.”). Finjan, Inc. (“Patent
`Owner”) timely filed a Preliminary Response. Paper 6 (“Prelim. Resp.”).
`We have jurisdiction under 35 U.S.C. § 314. For the reasons
`discussed below, we do not institute inter partes review of claims 1, 8, 14,
`and 19 of the ’633 patent.
`
`Related Matters
`A.
`The parties indicate that the ’633 patent is involved in Finjan, Inc. v.
`Juniper Networks, Inc., Case No. 3:17-cv-05659-WHA (N.D. Cal.) and
`other litigations. Pet. 1–2; Paper 3, 1. The ’633 patent is also the subject of
`IPR2018-00391 (the “391 case”), in which a Final Written Decision is
`pending.
`
`The ’633 Patent (Ex. 1001)
`B.
`The ’633 patent relates to a system and a method for protecting
`network-connectable devices from undesirable downloadable operation.
`Ex. 1001, 1:30−33. The patent describes that “Downloadable information
`comprising program code can include distributable components (e.g. JavaTM
`applets and JavaScript scripts, ActiveXTM controls, Visual Basic, add-ins
`and/or others).” Id. at 1:60−63. Protecting against only some distributable
`components does not protect against application programs, Trojan horses, or
`zip or meta files, which are other types of “Downloadable information.” Id.
`at 1:63−2:2. The ’633 patent “enables more reliable protection.” Id. at
`
`2
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`2:27−28. According to the Summary of the Invention,
`In one aspect, embodiments of the invention provide for
`determining, within one or more network “servers” (e.g.
`firewalls,
`resources, gateways, email
`relays or other
`devices/processes that are capable of receiving-and-transferring
`a Downloadable) whether received
`information
`includes
`executable code (and is a “Downloadable”). Embodiments also
`provide for delivering static, configurable and/or extensible
`remotely operable protection policies to a Downloadable-
`destination, more typically as a sandboxed package including the
`mobile protection code, downloadable policies and one or more
`received Downloadables. Further client-based or remote
`protection code/policies can also be utilized in a distributed
`manner. Embodiments also provide for causing the mobile
`protection code to be executed within a Downloadable-
`destination in a manner that enables various Downloadable
`operations to be detected, intercepted or further responded to via
`protection operations. Additional server/information-destination
`device security or other protection is also enabled, among still
`further aspects.
`
`Id. at 2:39−57.
`
`Illustrative Claim
`C.
`Challenged claims 1, 8, and 14 of the ’633 patent are independent.
`Illustrative claim 1 is reproduced below.
`1. A computer processor-based method, comprising:
`receiving, by a computer, downloadable-information;
`determining, by the computer, whether the downloadable-
`information includes executable code; and
`based upon the determination, transmitting from the computer
`mobile protection code to at least one information-destination of
`the downloadable-information, if the downloadable-information
`is determined to include executable code.
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`3
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`Id. at 20:54–62.
`
`Asserted Prior Art and Grounds of Unpatentability
`D.
`The Petition identifies the following references in connection with
`Petitioner’s challenge of unpatentability (Pet. 4):
`
`a) Sonnenberg: U.S. Patent No. 7,076,650 B1, filed in the record as
`Exhibit 1005;
`
`b) Jensen: Protection Wrappers: A Simple and Portable Sandbox for
`Untrusted Applications, Proceedings on the 8th ACM SIGOPS
`European Workshop on Support for Composing Distributed
`Applications, filed in the record as Exhibit 1006;
`
`c) Hanson: PCT Application No. WO 98/31124, filed in the record
`as Exhibit 1008; and
`
`d) Lemay: Teach Yourself JavaTM in 21 Days, Professional Reference
`Edition, filed in the record as Exhibit 1009.
`
`Petitioner asserts the following grounds of unpatentability based on
`the aforementioned references (Pet. 4):
`
`Challenged Claim
`1, 8, 14, and 19
`1 and 8
`1, 8, 14, and 19
`
`Basis
`§ 103(a)
`§ 103(a)
`§ 103(a)
`
`References
`Sonnenberg and Jensen
`Hanson and Lemay
`Hanson
`
`
`
`Petitioner also relies on a declaration of Seth Nielson, Ph.D., filed as
`Exhibit 1004 (“Nielson Decl.”).
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`4
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`II. DISCUSSION
`A. Claim Construction
`In an inter partes review, claim terms in an unexpired patent are given
`their broadest reasonable construction in light of the specification of the
`patent in which they appear. 37 C.F.R. § 42.100(b) (2017);1 see Cuozzo
`Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016). We presume a
`claim term carries its plain meaning, which is the meaning customarily used
`by those of skill in the relevant art at the time of the invention. Trivascular,
`Inc. v. Samuels, 812 F.3d 1056, 1062 (Fed. Cir. 2016).
`
`“Mobile protection code”
`1.
`Petitioner asserts that the broadest reasonable interpretation of
`“mobile protection code” is “code for causing one or more predetermined
`malicious operations or operation combinations of a Downloadable to be
`monitored or otherwise intercepted.” Pet. 9. Patent Owner asserts that
`“mobile protection code” means “code that, at runtime, monitors or
`intercepts actually or potentially malicious code operations without
`modifying the executable code.” Prelim. Resp. 6. According to Patent
`Owner, the difference between Petitioner and Patent Owner’s constructions
`is that Petitioner’s broader construction does not specify that the mobile
`protection code monitors and intercepts operations without modifying the
`executable code. Prelim. Resp. 7–8.
`
`
`1 A recent amendment to this rule does not apply here because the Petition
`was filed before November 13, 2018. See Changes to the Claim
`Construction Standard for Interpreting Claims in Trial Proceedings Before
`the Patent Trial and Appeal Board, 83 Fed. Reg. 51340 (Oct. 11, 2018) (to
`be codified at 37 C.F.R. pt. 42).
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`We need not resolve the dispute whether mobile protection code
`includes the limitation of not modifying the executable code, at a minimum,
`because claims 1 and 8 do not recite transmitting the executable code or
`executing the mobile protection code. We agree, however, with the parties
`that the mobile protection code is code that, at runtime, monitors or
`intercepts actually or potentially malicious operations. We adopt this
`construction for purposes of this Decision.
`
`Other Terms
`2.
`We do not need to construe any other claim terms to determine
`whether to institute inter partes review.
`
`Level of Ordinary Skill in the Art
`B.
`In determining the level of ordinary skill in the art, various factors
`may be considered, including the “type of problems encountered in the art;
`prior art solutions to those problems; rapidity with which innovations are
`made; sophistication of the technology; and educational level of active
`workers in the field.” In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995)
`(internal quotation and citation omitted). In that regard, Petitioner asserts
`that a person of ordinary skill in the art would include someone with “a
`bachelor’s degree in computer science or related field and two years of
`industry experience or an advanced degree in computer science or related
`field.” Pet. 6. Patent Owner does not challenge Petitioner’s definition of a
`person of ordinary skill in the art.
`Accordingly, for purposes of this Decision, we adopt Petitioner’s
`proposed level of ordinary skill in the art.
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`Summary of Asserted Prior Art
`C.
`Overview of Sonnenberg (Exhibit 1005)
`1.
`Sonnenberg is directed to a method and apparatus for sharing a
`proxy’s burden of scanning communications for target content. Ex. 1005,
`Abstract. Sonnenberg describes organizations that separate internal
`computing systems from outside computing systems by using firewalls. Id.
`at 1:11–29. “A firewall may incorporate one or more proxies or proxy
`modules to handle particular functions or particular types of traffic received
`by the firewall.” Id. at 1:30–32. In particular, “a proxy may be
`configured . . . to enhance the security of the internal network and/or prevent
`unwanted or undesirable communications from being received.” Id. at 38–
`42. According to Sonnenberg, as more functionality and duties are assigned
`to a proxy, “the performance of a proxy and, by extension, the firewall, may
`be degraded.” Id. at 1:42–45.
`Sonnenberg describes, with reference to the firewall 102 and
`cooperating network nodes in Figure 1B, reproduced below, a method by
`which a firewall and a computer node can selectively and cooperatively scan
`communications. Id. at 5:24–27; 6:44–58.
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`Figure 1B depicts a block diagram in which “firewall 102 and selected
`network nodes are configured with one or more modules or sets of
`executable instructions for scanning a communication.” Id. at 5:27–30. One
`subset of File Transfer Protocol (FTP) communications received from
`external entities and destined for node 106 is scanned for viruses at firewall
`102 using virus scanning module 102b. Id. at 6:49–53. Another subset of
`FTP communications is forwarded to node 106 and is scanned by virus
`scanning module 106a. Id. at 6:54–58. “As one of ordinary skill in the art
`will recognize, sharing the communication scanning duties between a
`firewall and individual computer nodes preserves firewall resources . . . for
`other operations and may thus increase its efficiency and overall
`performance.” Id. at 59–64. “Various criteria, rules and attributes of the
`communications to be scanned may be used to partition the communication
`scanning duties between a firewall and a computer node.” Id. at 7:5–8. For
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`example, “an administrator may want to prevent nodes from scanning
`executable files, in which case the firewall will be responsible for scanning
`these types of files.” Id. at 8:26–29.
`
`Overview of Jensen (Exhibit 1006)
`2.
`Jensen is directed to “protection wrappers,” which are mechanisms
`that allow external applications to run in a restricted environment called a
`“sandbox.” Ex. 1006, Abstract. Jensen describes a problem with
`downloading executable content from the Internet where “[a] downloaded
`program or a program interpreting downloaded data runs under the identity
`of the user starting the program and has all access rights available to that
`user.” Id. § 2. In this case, “the program can install a Trojan horse . . . or a
`back door that allows the potential intruder to enter the system at a later
`time, without passing through the normal authentication procedures.” Id.
`Accordingly, Jensen describes “creat[ing] a sandbox by changing the
`identity of the user to some unprivileged user before starting the program.”
`Id. § 3. The access rights of the sandbox “are restricted to the minimum
`required for the software to be runnable.” Id. A protection wrapper
`implements the sandbox by determining access rights for the program
`according to the security policy compiled into the protection wrapper, and
`then “assum[ing] the identity of the unprivileged user and run[ning] the
`program.” Id.
`
`D.
`
`Reasonable Likelihood Determination: Sonnenberg and Jensen
`Ground
`After considering Petitioner’s contentions and Patent Owner’s
`arguments in opposition, we are not persuaded that Petitioner has
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`demonstrated that Jensen teaches “mobile protection code,” as recited in the
`challenged claims. As stated above, the “mobile protection code” is code
`that, at runtime, monitors or intercepts actually or potentially malicious
`operations. Petitioner argues that Jensen discloses the mobile protection
`code by disclosing a “protection wrapper.” Pet. 25−26 (citing Ex. 1006,
`106). According to Petitioner, “when a Downloadable seeks to access a
`specific file that it should not access, the protection wrapper will have
`configured the Access Control List to deny the program access to that file.”
`Id. at 26 (citing Nielson Decl. ¶¶ 58−62). Petitioner argues that “the
`potentially hostile operation performed by the Downloadable of attempting
`to access the restricted file is intercepted before the operation can complete,
`and of course the malicious operation is also monitored because that is how
`the computer knows to intercept the access request.” Id. Petitioner points
`out an example of a protection wrapper in action. Id. at 26−27. For
`instance, Petitioner points out Jensen’s description of a program that initially
`has well-defined access rights, and then, at runtime, additional rights are
`dynamically granted only if required. Id. at 26 (citing Ex. 1006, 104−105).
`In that example, a PostScript previewer is isolated in a sandbox without
`access to the local file system, but when a user invokes the wrapped
`previewer, a read access is dynamically added to the sandbox before the
`previewer is started. Id. Thus, Petitioner argues, Jensen configures the
`Access Control List to ensure that the PostScript previewer is only allowed
`access to a specific file. Id. at 27. Petitioner also argues that the protection
`wrapper monitors the executable code because it determines when to revoke
`access rights. Id. at 27.
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`Patent Owner argues that Jensen’s protection wrapper is not mobile
`protection code because it does not monitor or intercept any operations.
`Prelim. Resp. 32−33. Patent Owner relies on Jensen’s explanation of how
`the protection wrapper uses an Access Control List (ACL) to change the
`identity of the caller to an unprivileged user to dynamically grant access
`rights for that user in the ACLs of files needed to run the program. Id. at 33
`(Ex. 1006, 3).
`We agree with Patent Owner that Petitioner has not demonstrated
`sufficiently that Jensen’s protection wrapper is “mobile protection code.”
`Jensen expressly states that the protection wrappers rely on the protection
`mechanisms of the underlying operating system. Ex. 1006, 3. Jensen states
`that ACLs allow fine-grained access control for files, i.e., individual users
`can be granted or denied specific access rights to a file. Id. The protection
`wrapper structure of Jensen, as evidenced by the pseudo code, indicates that
`the protection wrapper sets the user ID and group ID to an unprivileged user
`ID to affect the access rights while executing a particular program. Id.
`Jensen explains that when the wrapper recognizes a file name parameter, it
`adds the unprivileged rights to the ACL for that file, with the access rights
`compiled into the protection wrapper. Id. Thus, the protection wrapper, as
`compiled, only sets forth the access rights level for the files that the
`potentially malicious code uses or accesses. Files that a user may need to
`have access to at runtime are specified in the command line. Id. Thus, the
`protection wrapper itself does not monitor or intercept any operation of the
`program. As Jensen explains, the protection wrapper relies on the protection
`mechanisms of the underlying operating system. Jensen does not say that
`any part of the protection wrapper includes the affected ACL or any other
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`code that actually monitors or intercepts the operations of the program at
`runtime. That intercepting and monitoring is left to the operating system’s
`execution of the ACLs. Although the protection wrapper sets parameters for
`the ACL to restrict access, it is the operating system that performs the
`protection function of removing the access rights to particular files.
`The fact that the protection wrapper in Jensen revokes the access
`rights to the file name when the wrapped program terminates is not evidence
`that the protection wrapper monitors operation of the program, as Petitioner
`argues. The protection wrapper, according to Jensen, “adds the file name
`and the access rights to the list of rights to be revoked when the wrapped
`program terminates.” Ex. 1006, 3. That statement merely explains how the
`protection wrapper executes the “revoke−rights” function after the wrapped
`program terminates. It does not state that while the wrapped program
`executes, the protection wrapper monitors operations that are or could be
`malicious.
`Dr. Nielson’s testimony confirms our determination on this issue. For
`instance, Dr. Nielson opines that “[t]he ACL monitors and controls any
`operations from the untrusted code, blocking unauthorized attempts.”
`Nielson Decl. ¶ 60. Thus, according to Dr. Nielson it is the ACL, not the
`protection wrapper, that monitors and controls the operations to access files.
`And as Dr. Nielson explains, an ACL is a “common control mechanism used
`in operating systems.” Id. ¶ 59. There is no evidence that the ACL is part of
`the protection wrapper, nor is there any evidence or argument that the ACL
`is transmitted as required by some of the claims.
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`We determine, therefore, that Petitioner has not demonstrated a
`reasonable likelihood of prevailing on its contention that the challenged
`claims would have been obvious over Sonnenberg and Jensen.
`
`E.
`
`Analysis of Hanson Grounds and Discretionary Denial of Institution
`Petitioner relies on Hanson, either alone or in combination with
`Lemay, to assert obviousness of the challenged claims via two grounds.
`Hanson is also the primary reference asserted in a related pending inter
`partes review: the 391 case. At the time of issuing this Decision, briefing in
`the 391 case has been completed and we have had oral argument. Petitioner
`here alleges that, notwithstanding the use of Hanson, the Petition asserts
`prior art (Sonnenberg, Jensen, and Lemay) that has never been considered by
`the Office. Pet. 67. Additionally, Petitioner argues that, although claim 14
`has been challenged as obvious over Hanson alone, the other challenged
`claims have not. Id. at 67−68. Petitioner characterizes this as a “minor,
`partial overlap of one claim within one ground.” Id. at 68. Petitioner also
`argues that Juniper is a new petitioner, and that because this is not a second
`“follow on” petition by Juniper, there is no basis for the Board to exercise its
`discretion to deny the petition under 35 U.S.C. § 314(a). Id at 73.
`Patent Owner argues that the Board should deny the Petition under
`35 U.S.C. § 314 under the General Plastic factors,2 notwithstanding that
`Juniper has not filed a previous petition for inter partes review. Patent
`Owner points out that the Board has applied the General Plastic factors to
`petitions filed by a petitioner different from a previous petitioner. Prelim.
`
`
`2 General Plastic Industrial Co., Ltd. v. Canon Kabushiki Kaisha, Case
`IPR2016-01357 (PTAB Sept. 6, 2017) (Paper 19) (precedential).
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`Resp. 21−22 (citing NetApp Inc. v. Realtime Data LLC, Case IPR2017-
`01195, Paper 9 at 10 (P.T.A.B. Oct. 12, 2017), and Shenzhen Silver Star
`Intelligent Tech. Co. v. iRobot Corp., Case IPR2018-00761). Patent Owner
`analyzes each of the General Plastic factors and posits that the
`circumstances presented in this case weigh in favor of exercising discretion.
`Id. at 22−28.
`We determine that exercising discretion to deny institution is
`appropriate in this proceeding under §§ 314(a) and 325(d). First, the
`General Plastic factors are a non-exhaustive list of factors and provide a
`flexible framework that allows the parties and the Board to assess when the
`circumstances among the parties and the needs of the Board warrant the
`exercise of discretion not to institute. Second, there is one important
`constraint on our institution authority: Institution is an all-or-nothing affair.
`The Supreme Court and Federal Circuit have held that we lack authority to
`institute a proceeding as to fewer than all grounds or challenged claims
`identified in a petition. See SAS Ins., Inc. v. Iancu, 138 S. Ct. 1348, 1359–
`1360 (“[E]verything in [35 U.S.C. § 314] claims that [the petitioner] is
`entitled to a final written decision addressing all of the claims it has
`challenged.”); PGS Geophysical AS v. Iancu, 891 F.3d 1354, 1360 (Fed. Cir.
`2018) (“[35 U.S.C. § 314] require[s] a simple yes-or-no institution choice
`respecting a petition, embracing all challenges included in the petition.”).
`Thus, our only options are to institute an inter partes review as to all
`grounds and all challenged claims, or to deny institution.
`Petitioner here filed its Petition well after the Supreme Court and
`Federal Circuit made clear that institution is an all-or-nothing decision.
`Petitioner was also aware of the ongoing 391 case, which would likely
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`impact our decision on subsequently filed cases dealing with the ’633 patent.
`Yet, Petitioner elected to file a Petition in which two of the three grounds
`substantially overlap with the pending 391 case.
`Under the facts and circumstances presented here, we invoke our
`discretion to deny institution as this case presents two particularly weighty
`considerations. The first is that two grounds undeniably rely on Hanson,
`which the panel is considering in the 391 case. These two grounds also
`present substantially the same arguments and issues involved in the 391
`case. There is no question that Hanson is the same prior art previously
`presented, and under full consideration in a related matter pending at the
`Board. The third ground, which does not rely on Hanson, we have found to
`be without merit. Therefore, under § 314(a) and § 325(d), the Board
`properly considers the cumulative nature of this Petition and the reliance on
`Hanson and previously presented arguments as a factor that strongly weighs
`in favor of denial of this Petition. See General Plastic, factor 2 (“whether at
`the time of filing of the first petition the petitioner knew of the prior art
`asserted in the second petition or should have known of it”); 35 U.S.C.
`§ 325(d). Furthermore, we note that at the time of filing this Petition,
`significant activity in the 391 case has informed the Petition here, evidenced
`by Petitioner’s attempts to bolster the weaknesses identified in the 391 case
`with additional arguments and prior art. See Pet. 71−72 (arguing the
`material differences between the 391 case and the instant petition by
`addressing the Board’s Institution Decision in the 391 case). See General
`Plastic, factor 3 (“whether at the time of filing of the second petition the
`petitioner already received the patent owner’s preliminary response to the
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`first petition or received the Board’s decision on whether to institute review
`in the first petition”).
`The second consideration we address is administrative efficiency. We
`are concerned that instituting here is substantially duplicative of the 391
`case, and the Board would need to reconcile arguments, issues, and evidence
`across multiple, independent trials on the same patent and claims.3 Cf.
`Heckler v. Chaney, 470 U.S. 821, 831 (1985) (indicating an agency, when
`deciding whether to take action in a particular matter, must determine
`whether its resources are best spent on one matter or another). Petitioner
`here is advancing substantially similar mapping of the claims to Hanson, the
`same arguments as to how Hanson discloses the claim limitations, and claim
`construction arguments that overlap with those pending in the 391 case. On
`balance, we find that our resources would be inefficiently utilized by
`granting another trial that raises a substantial number of issues, evidence,
`and arguments already in consideration in the 391 case. See General
`Plastic, factor 6 (“the finite resources of the Board”). Further, delaying the
`Final Written Decision in the 391 case to eliminate potential inconsistencies
`and align the evidence and facts across cases is contrary to the requirement
`that we issue a final determination not later than 1 year after the date on
`which the Director notices institution of review (see id. factor 7).
`Accordingly, it would not be prudent to institute yet another trial on the ’633
`patent with Hanson featuring so prominently. We reach this conclusion
`recognizing that there are some differences in the asserted grounds, that this
`
`
`3 See MaxLinear, Inc. v. CF CRESPE LLC, 880 F.3d 1373 (Fed. Cir. 2018).
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`Petition challenges an additional dependent claim, and that the Petitioner
`here is different from the petitioner in the 391 case.
`On balance, we find that the instant Petition presents one ground
`without merit and two grounds based primarily on Hanson, which we are
`considering in the ongoing 391 case. Notwithstanding some differences in
`the prior art combined with Hanson, we are persuaded that instituting trial
`here would be an inefficient use of Board resources and would result in
`substantial overlap and duplication of issues, arguments, and evidence.
`Therefore, based on the foregoing, and to secure the just, speedy, and
`inexpensive resolution of the dispute, we exercise our discretion under
`§§ 314(a) and 325(d), and deny institution. See also 37 C.F.R. § 42.1(b).
`
`III. CONCLUSION
`We determine that Petitioner has not established a reasonable
`likelihood of prevailing on its assertion that claims 1, 8, 14, and 19 of the
`’633 patent are unpatentable based on the asserted ground of obviousness
`over Sonnenberg and Jensen. Furthermore, we exercise our discretion to
`deny the Petition under §§ 314(a) and 325(d).
`
`
`IV. ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that the Petition is denied and no trial is instituted.
`
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`PETITIONER:
`Michael Fleming
`Joshua Glucoft
`IRELL & MANELLA LLP
`Juniper-FinjanIPRs@irell.com
`mfleming@irell.com
`jglucoft@irell.com
`
`
`
`PATENT OWNER:
`James Hannah
`Jeffrey Price
`Michael Lee
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`svdocketing@kramerlevin.com
`jhannah@kramerlevin.com
`jprice@kramerlevin.com
`mhlee@kramerlevin.com
`
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