UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`AMAZON WEB SERVICES INC., and
`AMAZON.COM, INC., and VADATA, INC.,
`Petitioners,
`v.
`SAINT REGIS MOHAWK TRIBE,
`Patent Owner.
`_______________________
`IPR2019-00103
`Patent 7,149,867
`__________________________
`
`PATENT OWNER SAINT REGIS MOHAWK TRIBE’S PRELIMINARY
`RESPONSE TO PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT 7,149,867
`
`
`
`i
`
`
`
`
`
`

`

`TABLE OF CONTENTS
`
`
`I.
`II.
`
`INTRODUCTION ........................................................................................... 1
`PERTINENT FACTS ...................................................................................... 2
`A. SRC Computers creates the first high performance reconfigurable
`computer. .................................................................................................... 2
`B. Related Proceedings. ................................................................................... 4
`III. THE BOARD SHOULD DENY INSTITUTION UNDER § 314(a). ............ 5
`A. The Board should deny institution because SRC is a sole-source
`supplier for the U.S. Army’s TRACER Program. ...................................... 7
`B. The Board should deny institution because there is a district court
`case involving the same patent and same prior art. .................................... 9
`C. The Board should deny institution because of the Tribe’s status as a
`sovereign. .................................................................................................. 11
`IV. TECHNOLOGY BACKGROUND ............................................................... 12
`A. Conventional Computer Architecture. ...................................................... 12
`B. Field Programmable Gate Arrays. ............................................................ 13
`C. Reconfigurable Computing. ...................................................................... 14
`V. PATENT OWNER’S CLAIM CONSTRUCTIONS .................................... 16
`A. “a data prefetch unit” ................................................................................ 16
`VI. AMAZON HAS FAILED TO DEMONSTRATE A REASONABLE
`LIKELIHOOD OF PREVAILING AS TO ANY CHALLENGED
`CLAIM .......................................................................................................... 18
`A. The Petition should be denied for failing to comply with §
`42.104(b)(3). ............................................................................................. 18
`B. The Petition should be denied because it relies on an incorrect
`construction of the term “data prefetch unit.” .......................................... 21
`
`
`
`ii
`
`

`

`VII. CONCLUSION .............................................................................................. 23 
`VIII. LIST OF EXHIBITS...................................................................................... 26 
`
`
`
`
`
`
`
`iii
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`

`

`TABLE OF AUTHORITIES
`
`CASES:
`
`Cuozzo Speed Techs. v. Lee,
`136 S. Ct. 2131 (2016) ................................................................................................. 6
`
`
`In re Paulsen,
` 30 F.3d 1475, 1480 (Fed. Cir. 1994)......................................................................... 17
`
`Michigan v. Bay Mills Indian Cmty.,
`134 S. Ct. 2024 (2014) ............................................................................................... 11
`
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) ........................................................................... 17, 18
`
`
`Saint Regis Mohawk Tribe v. Mylan Pharm. Inc.,
`896 F.3d 1322 (Fed. Cir. 2018) ....................................................................... 2, 11, 12
`
`
`ADMINISTRATIVE ORDERS:
`
`Apple, Inc. v. ContentGuard Holdings, Inc.,
`Case No. IPR2015-00456, 2015 WL 4036010 (PTAB June 15, 2015) .................. 20
`
`
`Carefusion Corp. v. Baxter Int'l, Inc.,
`Case No. IPR2016-01456, 2017 WL 506561 (P.T.A.B. Feb. 6, 2017) .................. 20
`
`
`Duo Security Inc. v. Strikeforce Tech., Inc.,
` Case IPR2017-01064 (PTAB Oct. 16, 2017) ........................................................... 23
`
`Eiko Global, LLC v. Blackbird Tech LLC,
` Case IPR2017-00980 (PTAB Sept. 1, 2017) ........................................................... 23
`
`General Plastic Indus. Co., Ltd. v. Canon Kabushiki Kaisha,
` Case IPR2016–01357, Paper 19 at 9-10 (PTAB Sept. 6, 2017) ..................... 6, 7, 10
`
`Google Inc. v. InfoGation Corp.,
` Case IPR2017-00819 (PTAB Sept. 11, 2017) .......................................................... 23
`
`Mylan Pharms., Inc. v. Bayer Intellectual Property GMBH,
`iv
`
`
`
`

`

` Case IPR2018-01143, slip op. at 12-14 (PTAB Dec. 3, 2018) ............................... 11
`
`
`NHK Spring Co., Ltd v. Intri-Plex Techs., Inc.,
` Case IPR2018-00752, slip op. at 19-20 (PTAB Sept. 12, 2018) ............................. 11
`
`Schlumberger Tech. Corp. v. EnerPol, LLC,
` Case IPR2018-00077 (PTAB Apr. 25, 2018) .......................................................... 23
`
`United Microelectronics Corp. et al v. Lone Star Silicon Innovations LLC,
` Case IPR2017-01513 (PTAB May 22, 2018) .......................................................... 23
`
`United Patents, Inc. v. Uniloc Luxembourg S.A.,
` Case IPR2018-00057 (PTAB May 11, 2018) .......................................................... 23
`
`STATUTES:
`
`35 U.S.C. § 112 .............................................................................................................. 19
`
`35 U.S.C. § 312 .............................................................................................................. 18
`
`35 U.S.C. § 314 ...................................................................................................... passim
`
`35 U.S.C. § 316 ................................................................................................................ 7
`
`RULES:
`
`Fed. R. Civ. Proc. 11 ...................................................................................................... 21
`
`
`REGULATIONS:
`
`37 C.F.R. § 11.18 ..................................................................................................... 21, 22
`
`37 C.F.R. § 42.11 ........................................................................................................... 21
`
`37 C.F.R. § 42.22 ........................................................................................................... 18
`
`37 C.F.R. § 42.104 ................................................................................................. passim
`
`
`
`
`v
`
`

`

`I. INTRODUCTION
`The Board should exercise its discretion to deny institution for three reasons.
`
`First, IPRs were intended to be an efficient, cost-effective alternative to litigation,
`
`not a burdensome and inefficient duplicate of litigation. Amazon’s Petition mirrors
`
`invalidity arguments it has asserted in the co-pending district court case.
`
`Second, for more than a decade, SRC1 has been the sole source provider to
`
`Lockheed Martin on behalf of the U.S. Southern Command of high-performance
`
`reconfigurable processors for
`
`the Tactical Reconnaissance and Counter-
`
`Concealment Radar (“TRACER”) program, which requires extremely high-
`
`performance signal processing in a very limited size, weight, and power (“SWAP”)
`
`environment. EX. 2004 ¶¶ 2-23. No other vendor can match the capabilities of SRC’s
`
`systems. Id. ¶ 21. The cost of defending its patents here may put SRC out of business.
`
`EX. 2007 ¶¶ 9-10. That result would be extremely detrimental to the national
`
`security interests of the United States. EX. 2004 ¶¶ 22-23. Small innovative
`
`companies like SRC are key to developing the advanced cutting-edge technology
`
`needed for the Department of Defense’s most critical missions. Id. ¶¶ 4-8.
`
`Third, the Saint Regis Mohawk Tribe is a federally recognized American Indian
`
`Tribe and owner of U.S. Patent No. 7,149,867 (“’867 patent”) that is the subject of
`
`
`1 In this brief, “SRC” will be used to refer to both SRC Computers and its
`successor company DirectStream, LLC.
`
`
`
`1
`
`

`

`this proceeding. The Federal Circuit recently held that the Director can deny a
`
`petition for IPR “based on a party’s status as a sovereign.” Saint Regis Mohawk Tribe
`
`v. Mylan Pharm. Inc., 896 F.3d 1322, 1327 (Fed. Cir. 2018) (“Mylan”). Accordingly,
`
`the Tribe respectfully requests that the Board exercise its discretion to deny this
`
`Petition based on the Tribe’s status as a sovereign.
`
`In addition, Amazon has failed to establish there is a reasonable likelihood of
`
`prevailing against any claim of the ’867 patent because the Petition has not met the
`
`requirements of 37 C.F.R. § 42.104(b)(3) and is based entirely on an erroneous
`
`construction of the term “data prefetch unit.”
`
`Therefore, the Board must deny institution.
`
`II. PERTINENT FACTS
`A. SRC Computers creates the first high performance reconfigurable
`computer.
`The inventors of the ’867 patent, along with their colleagues at SRC Computers,
`
`pioneered the use of Field Programmable Gate Arrays (FPGAs) as general-purpose
`
`processors
`
`to create small, energy efficient supercomputers. These new
`
`supercomputers outperform conventional computers by a factor of 100x (or more)
`
`while using 99% less power.
`
`These innovations were the result of private research and development done by
`
`SRC Computers, which was founded in 1996 by Jim Guzy, Jon Huppenthal, and
`
`Seymour Rodger Cray (hence SRC), who is widely considered to be the father of
`
`
`
`2
`
`

`

`supercomputing. EX. 2002. Notably, SRC Computers’ first customers were the
`
`National Security Agency (“NSA”), the Naval Postgraduate School, and George
`
`Washington University. EX. 2007 ¶ 7. SRC Computers spent over $100 million in
`
`research and development for its patented reconfigurable supercomputers. Id. ¶ 3.
`
`SRC Computers has restructured into three entities: a corporate parent FG-SRC,
`
`LLC, an operating company DirectStream, LLC, and a licensing entity called SRC
`
`Labs, LLC. Id. ¶ 1. DirectStream and SRC Labs operate in tandem and FG-SRC is
`
`responsible for the management and funding of both entities. Id. This proceeding,
`
`coupled with the other nine Microsoft IPR petitions, may force DirectStream out of
`
`business as it is counting on licensing revenue from SRC Labs to operate and the
`
`costs of defending these IPRs may likely exceed $700,000. Id. ¶¶ 9-11.
`
`In an effort to diversify its economy and foster jobs, the Saint Regis Mohawk
`
`Tribe (“Tribe”) recently created an Office of Technology, Research and Patents
`
`(“OTRAP”). OTRAP’s purpose is to strengthen the Tribal economy by encouraging
`
`the development of emerging science and technology initiatives and projects, and
`
`promoting the modernization of Tribal and other businesses. EX. 2010 at 1. The
`
`objective is to create revenue, jobs, and new economic development opportunities
`
`for the Tribe and its members. Id. OTRAP will also promote the education of
`
`Mohawks in the fields of science, technology, engineering, and math. Id. at 2.
`
`All revenue generated by OTRAP will go into the Tribal General Fund and be
`
`
`
`3
`
`

`

`used to address the chronically unmet needs of the Tribal community, such as
`
`housing, employment, education, healthcare, cultural and language preservation. Id.
`
`The ’152 patent has been assigned to the Tribe and the Tribe granted SRC Labs
`
`an exclusive license. EX. 2007 ¶ 2.
`
`B. Related Proceedings.
`On October 18, 2017, the Tribe and its exclusive licensee, SRC Labs, LLC (“SRC
`
`Labs”), sued Amazon for infringement of five patents that were originally assigned
`
`to SRC Computers: The ’867 patent and U.S. Patent Nos. 6,434,687,2 7,225,324,
`
`7,762,800 and 9,153,311. That case was originally filed in the Eastern District of
`
`Virginia (SRC Labs, LLC et al v. Amazon Web Services, Inc., et al, No. 1:17-cv-
`
`01227-LO-JFA) but was transferred to the Western District of Washington for
`
`Amazon’s convenience (SRC Labs, LLC et al v. Amazon Web Services, Inc et al,
`
`2:18-cv-00317-JLR).
`
`On October 18, 2017, the Tribe and SRC Labs also sued Microsoft for
`
`infringement of six patents that were originally assigned to SRC Computers: The
`
`U.S. Patent Nos. 6,076,152, 6,247,110, 6,434,687, 7,225,324 (the “’324 patent”),
`
`7,762,800 (the “’800 patent”) and 7,421,524. This case was originally filed in the
`
`Eastern District of Virginia (SRC Labs, LLC et al v. Microsoft Corporation, No.
`
`
`2 The 6,434,687 patent is no longer being asserted against Amazon in district court.
`
`
`
`4
`
`

`

`1:17-cv-01172-LO-JFA) but was also transferred to the Western District of
`
`Washington for Microsoft’s convenience (SRC Labs, LLC et al v. Microsoft
`
`Corporation, No. 2:18-cv-00321-JLR).
`
`The lawsuits against Microsoft and Amazon were consolidated for Claim
`
`Construction because they both involved the ’324 and ’800 patents.
`
`On July 13, 2018, Xilinx (Amazon’s FPGA supplier) filed an IPR petition against
`
`U.S. Patent No. 9,153,311 that has only been asserted against Amazon. Xilinx, Inc.
`
`v. Saint Regis Mohawk Tribe et al, IPR2018-01395 (PTAB July 13, 2018). The
`
`Board issued a Decision Denying Institution on January 23, 2019. Id. (Paper 17).
`
`Between August 24, 2018 and September 11, 2018, Microsoft filed ten IPR
`
`petitions against all six patents that Patent Owner asserted against Microsoft,
`
`including six IPR petitions against the ’324 and ’800 patents that were also asserted
`
`against Amazon. See IPR2018-01594, IPR2018-01599, IPR2018-01600, IPR2018-
`
`1601,
`
`IPR2018-01602,
`
`IPR2018-01603,
`
`IPR2018-01604,
`
`IPR2018-01605,
`
`IPR2018-01606, and IPR2018-01607.
`
`On October 19, 2018, Amazon file this IPR petition against the only patent
`
`asserted against it that was not yet the subject of an IPR petition, the ’867 patent.
`
`III. THE BOARD SHOULD DENY INSTITUTION UNDER § 314(a).
`The Board should exercise its discretion under 35 U.S.C. § 314(a) to deny
`
`Amazon’s Petition for three reasons. First, Amazon’s Petition is an attack on a small,
`
`
`
`5
`
`

`

`innovative, U.S. company that is the sole-source supplier to the Department of
`
`Defense. Second, there is a district court case involving the same patent and same
`
`prior art. And third, the Patent Owner is a federally recognized, sovereign American
`
`Indian Tribe.
`
`Section 314(a) provides the Director with discretion to deny a petition. See 35
`
`U.S.C. § 314(a); Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2140 (2016)
`
`(“[T]he agency’s decision to deny a petition is a matter committed to the Patent
`
`Office’s discretion.”).
`
`To assist the Board’s assessment of the potential impacts on both the efficiency
`
`of the IPR process and the fundamental fairness of the process for all parties, the
`
`General Plastic decision was recently designated a Precedential decision because it
`
`enumerated the following seven non-exclusive factors that the Board will consider
`
`in exercising discretion on instituting IPR:
`
`1. whether the same petitioner previously filed a petition
`directed to the same claims of the same patent;
`2. whether at the time of filing the first petition the
`petitioner knew of the prior art asserted in the second
`petition or should have known of it;
`3. whether at the time of filing of the second petition the
`petitioner already received the patent owner's preliminary
`response to the first petition or received the Board's
`decision on whether to institute review in the first petition;
`4. the length of time that elapsed between the time the
`petitioner learned of the prior art asserted in the second
`petition and the filing of the second petition;
`6
`
`
`
`

`

`5. whether the petitioner provides adequate explanation
`for the time elapsed between the filings of multiple
`petitions directed to the same claims of the same patent;
`6. the finite resources of the Board; and
`7. the requirement under 35 U.S.C. § 316(a)(11) to issue a
`final determination not later than 1 year after the date on
`which the Director notices institution of review.
`General Plastic Indus. Co., Ltd. v. Canon Kabushiki Kaisha, Case IPR2016–01357,
`
`Paper 19 at 9-10 (PTAB Sept. 6, 2017) (precedential).
`
`But these factors are neither dispositive nor exclusive and are “not intended to
`
`represent all situations where it may be appropriate to deny a petition.” See Trial
`
`Practice Guide Update (August 2018) at 10. There may be other reasons where the
`
`“effect … on the economy, the integrity of the patent system, the efficient
`
`administration of the Office, and the ability of the Office to timely complete
`
`proceedings … favor denying a petition even though some claims meet the threshold
`
`standards for institution.” Id. Some examples listed in the Trial Practice Guide
`
`Update include other proceedings “related to the same patent, either at the Office, in
`
`the district courts, or the ITC.” Id.
`
`A. The Board should deny institution because SRC is a sole-source supplier
`for the U.S. Army’s TRACER Program.
`The Department of Defense’s most critical missions rely on cutting-edge
`
`technology developed and manufactured in the United States by American
`
`companies like SRC. EX. 2004 ¶¶ 4-7. Because SRC’s patented, reconfigurable
`
`
`
`7
`
`

`

`supercomputers are much smaller and more energy efficient than traditional
`
`computers, the technology is a perfect fit for applications where space and power are
`
`at a premium. EX. 2003. As a result, Lockheed Martin chose SRC to be the sole
`
`source vendor of processors for the U.S. Army’s TRACER program. EX. 2004 ¶ 9.
`
`SRC TRACER Signal Data Processor (SDP)
`
`SRC Series H MAP processor
`
`
`
`The TRACER program addresses a critical need to identify hidden targets,
`
`
`
`facilities, and enemy equipment such as small roadside targets and buried weapons
`
`caches. EX. 2005. TRACER has been operational outside the continental United
`
`States for ten years performing operations for the U.S. Southern Command. EX.
`
`2004 ¶ 14. SRC/DirectStream’s processors have allowed these surveillance
`
`operations to produce images of targets on the ground in real-time, providing
`
`immediately actionable information. Id. ¶¶ 15-16. The TRACER program’s unique
`
`real-time radar capabilities have allowed the U.S. Southern Command to detect rebel
`
`forces, drug cartel activities, and terrorism that occurs in the dense jungles of that
`
`region. Id. ¶ 18.
`
`
`
`8
`
`

`

`According to Lockheed Martin’s Engineering Program Manager in charge of the
`
`TRACER program, it is not in the national security interests of the United States to
`
`require SRC to spend time or money defending IPRs. Id. ¶ 23. Instead, it is in the
`
`best interests of the United States as a whole, and Lockheed Martin in particular, to
`
`keep companies like SRC/DirectStream healthy and unencumbered so they focus on
`
`new technology development. Id. ¶ 22. In fact, Lockheed Martin’s procurement
`
`process has shown that no other vendor can match the capabilities of SRC’s
`
`TRACER processors. Id. ¶¶ 19-21.
`
`Amazon’s Petition is an attack on a small, innovative, U.S. company that is a
`
`sole-source supplier to the Department of Defense. Small innovative companies are
`
`the lifeblood of our economy and the intended beneficiaries of the U.S. patent
`
`system. Microsoft should not be allowed to use the IPR process to avoid paying
`
`royalties when it steals the intellectual property of small companies like
`
`SRC/Directstream.
`
`Accordingly, the Tribe asks the Board to exercise its discretion under § 314(a) to
`
`deny this Petition.
`
`B. The Board should deny institution because there is a district court case
`involving the same patent and same prior art.
`The Board should deny institution because Amazon is relying on the same prior
`
`art and arguments in its district court invalidity contentions as asserted in this
`
`Petition. Amazon’s Petition asserts that claims 1, 3-9, and 11-19 of the ’867 patent
`9
`
`
`
`

`

`are rendered obvious by either Lange (EX. 1003) or Zhong (EX. 1004). Petition at
`
`3.
`
`In the district court case, Amazon has also asserted obviousness based on Lange
`
`and Zhong. EX. 2020 at 3; EX. 2021 (Lange invalidity chart); EX. 2023 (Zhong
`
`invalidity chart). But Amazon waited 12 months to file this Petition and, after
`
`granting Microsoft’s motion to stay, the district court stayed the Amazon case
`
`pending the resolution of this and the 10 IPR petitions filed by Microsoft. EX. 2017;
`
`EX. 2018; EX. 2019. Prior to the stay, the district court was scheduled to have a
`
`Markman hearing on December 20, 2018 and trial in November 2019. EX. 2012 at
`
`2. Thus, the district court would have analyzed the same issues and resolved them
`
`before any trial on this Petition could have concluded.
`
`Amazon’s Petition was filed to delay the resolution of these issues by the district
`
`court. This is contrary to the overall goal of the AIA, which was to “make the patent
`
`system more efficient by the use of post-grant review proceedings.” See General
`
`Plastic Industrial Co., Ltd. v. Canon Kabushiki Kaisha, Case IPR2016-01357, slip
`
`op. at 16-17 (PTAB Sept. 6, 2017) (Paper 19) (precedential as to § II.B.4.i). IPRs
`
`were not intended to be a tool to enable efficient infringement by trillion-dollar
`
`corporations, such as Amazon.
`
`The Board should deny this Petition based on these inefficiencies as the Board
`
`has recently done in other proceedings involving parallel district court cases with
`
`
`
`10
`
`

`

`overlapping prior art. See NHK Spring Co., Ltd v. Intri-Plex Techs., Inc., Case
`
`IPR2018-00752, slip op. at 19-20 (PTAB Sept. 12, 2018) (Paper 8) (denying
`
`institution under § 314(a) because of co-pending litigation); Mylan Pharms., Inc. v.
`
`Bayer Intellectual Property GMBH, Case IPR2018-01143, slip op. at 12-14 (PTAB
`
`Dec. 3, 2018) (Paper 13) (denying institution under § 314(a) because of co-pending
`
`litigation involving overlapping prior art).
`
`Accordingly, Patent Owner respectfully asks the Board to exercise its discretion
`
`under § 314(a) to deny this Petition because of these inefficiencies.
`
`C. The Board should deny institution because of the Tribe’s status as a
`sovereign.
`The Tribe is a federally recognized American Indian Tribe and owner of the ’867
`
`patent that is the subject of this proceeding. The Tribe, as a sovereign government,
`
`is not amenable to suit unless it expressly consents or Congress abrogates its
`
`immunity. See, e.g., Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030
`
`(2014).
`
`Last summer, in Saint Regis Mohawk Tribe v. Mylan Pharm. Inc., 896 F.3d 1322
`
`(Fed. Cir. 2018), the Federal Circuit held that sovereign immunity cannot be asserted
`
`in an IPR because an “IPR is more like an agency enforcement action than a civil
`
`suit brought by a private party.” Id. at 1327. The Tribe believes that case was
`
`wrongly decided and filed a petition for writ of certiorari on December 20, 2018 that
`
`asked the Supreme Court to decide whether sovereign immunity may be asserted in
`11
`
`
`
`

`

`IPRs before the Patent Trial and Appeal Board. EX. 2009.
`
`But the Federal Circuit also held that the USPTO “Director bears the political
`
`responsibility of determining which cases should proceed.” Saint Regis Mohawk
`
`Tribe, 896 F.3d at 1327 (emphasis added). And that the Director can deny a petition
`
`for IPR “based on a party’s status as a sovereign.” Id. Accordingly, Patent Owner
`
`respectfully requests that the Director exercise his discretion to deny this Petition
`
`based on the Tribe’s sovereign status.
`
`IV. TECHNOLOGY BACKGROUND
`A. Conventional Computer Architecture.
`Conventional computers utilize general purpose processors from Intel or AMD
`
`and employ a Von Neumann architecture. In a conventional computer, “hardware is
`
`fixed and cannot be changed after manufacturing.” EX. 2023 ¶ 9. To execute a
`
`software program, the processor “goes through a fixed routine of steps”:
`
`1. Instruction Fetch - read the instruction whose address
`is specified by the program counter into the designated
`processor internal register, and advance the program
`counter to point to the next instruction.
`2. Instruction Decode - Decipher the work needed by the
`instruction.
`3. Execute - carry out the work needed if data is available
`internally, if not then prepare the address of the data.
`4. Data Memory Access - read/write data from/to
`memory.
`5. Write back - write the results into an internal register.
`
`
`
`12
`
`

`

`Id. This is referred to as the fetch-execute cycle. Because of their architecture,
`
`conventional computers must operate in a sequential manner. Id. ¶ 10.
`
`Since 1965, the speed of processors has risen exponentially due to Moore’s law,
`
`which predicted that the number of transistors on processors would double nearly
`
`every 24 months. EX. 2001 at 16.3 But starting in the early 2000s, microprocessor
`
`manufacturers were no longer able to dramatically increase processor performance.
`
`Id. So to continue adding more processor performance, manufacturers began
`
`building multicore chips. Id. at 16-17. This has resulted in microprocessors with
`
`much higher power consumption, which has made electricity a considerable
`
`operating expense for large computing centers. Id. at 17.
`
`B. Field Programmable Gate Arrays.
`A field programmable gate array (“FPGA”) is a reprogrammable integrated
`
`circuit that contains an array of configurable logic blocks (functional units)
`
`connected by configurable interconnects. EX. 2023 ¶ 11. The user can configure the
`
`FPGA to perform a desired computation by configuring (or instantiating) the
`
`configurable logic blocks to perform the desired operations (arithmetic, logical,
`
`control, data movement, etc.) and then configuring the interconnects so that the
`
`configured logic are connected in the order needed to perform the desired
`
`
`3 All citations to page numbers in this brief refer to the exhibit page numbers found
`in the lower right-hand corner, not the pagination in the original document.
`13
`
`
`
`

`

`computation. Id. An FPGA is configured by loading a file called a bitstream into the
`
`FPGA. Id.
`
`C. Reconfigurable Computing.
`Reconfigurable computing systems are built from reconfigurable computing
`
`devices, such as FPGAs, that serve as coprocessors to microprocessors. EX. 2008 at
`
`1; EX. 2011 at 1. “In its simplest terms, reconfigurable computing, based on FPGA
`
`technology, could be defined as the capability of reprogramming hardware to
`
`execute logic that is designed and optimized for a specific user’s algorithms.” EX.
`
`2008 at 2.
`
`With an FPGA one can implement only the hardware that is needed and can avoid
`
`many of the slowdowns that come with load-decode-fetch-execute sequences in
`
`traditional Von Neumann processors.
`
`Much of the speedup from FPGAs comes from the fact that intermediate results
`
`do not need to be stored back in memory. Instead they live on the wires
`
`(reconfigurable routing resources) inside the FPGA as they flow from one
`
`processing element (i.e., configurable logic blocks) to another. This is the key for
`
`processing performance gains on reconfigurable computing systems. FPGAs can
`
`instantiate many processing elements, which allows them to perform many
`
`computations before having to store the results back to external memory. If one has
`
`to compute, store externally, and then immediately fetch back, one loses.
`
`
`
`14
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`

`

`In January 2004, Duncan Buell co-authored an article about implementing
`
`Defense Advanced Research Projects Agency (DARPA) benchmark code on SRC
`
`Computer’s SRC-6 reconfigurable computer. EX. 2006 at 1. That article described
`
`the successful implementation of this benchmark code on the SRC-6 as “a watershed
`
`event in the history of computing” and proclaimed that the “era of effective
`
`programming of a reconfigurable computer has arrived.” Id. at 5.
`
`In 2008, Dr. Buell co-authored another article about SRC Computer’s SRC-6
`
`entitled “The Promise of High-Performance Reconfigurable Computing.” EX. 2011
`
`at 2. That article found that high-performance reconfigurable computers (HPRCs)
`
`“can achieve up to four orders of magnitude improvement in performance, and up to
`
`three orders of magnitude reduction in power consumption, and two orders of
`
`magnitude savings in cost and size requirements compared with contemporary
`
`microprocessors when running compute-intensive applications based on integer
`
`arithmetic.” Id. at 8.
`
`The inventors of the ’867 patent pioneered the use of FPGAs as general-purpose
`
`processors to create small, energy efficient, supercomputers that outperform
`
`conventional computers by a factor of 100x (or more) while using 99% less power.
`
`Since SRC created an entirely new computer architecture that radically departs from
`
`the traditional Von Neumann model, they encountered and solved many different
`
`types of technical problems.
`
`
`
`15
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`

`

`V. PATENT OWNER’S CLAIM CONSTRUCTIONS
`A. “a data prefetch unit”
`Patent Owner’s Construction
`a functional unit that moves data
`between members of a memory
`hierarchy. The movement may be as
`simple as a copy, or as complex as an
`indirect indexed strided copy into a unit
`stride memory
`
`Amazon’s Construction
`a functional unit that retrieves
`computational data needed to complete
`the algorithm instantiated on the
`reconfigurable processor during
`processing
`
`
`
`The ’867 patent expressly defines the term “a data prefetch unit” in the
`
`“Definition” section of the specification as follows:
`
`Data prefetch Unit—is a functional unit that moves data
`between members of a memory hierarchy. The movement
`may be as simple as a copy, or as complex as an indirect
`indexed strided copy into a unit stride memory.
`EX. 1001 at col. 5:40-43. The ’867 patent also expressly defines the terms “memory
`
`hierarchy” and “functional unit” as follows:
`
`Functional Unit—is a set of logic that performs a specific
`operation. The operation may for example be arithmetic,
`logical, control, or data movement. Functional units are
`used as building blocks of reconfigurable logic.
`…
`Memory Hierarchy—is a collection of memories
`Id. at 5:34-39.
`
`Patent Owner’s proposed construction for “a data prefetch unit” is the same as
`
`the definition provided in the patent. An inventor is free to define specific terms used
`
`to describe the invention and that definition will control so long as the definition is
`
`
`
`16
`
`

`

`“done with reasonable clarity, deliberateness, and precision.” In re Paulsen, 30 F.3d
`
`1475, 1480 (Fed. Cir. 1994); see also Phillips v. AWH Corp., 415 F.3d 1303, 1316
`
`(Fed. Cir. 2005) (en banc) (“[T]he specification may reveal a special definition given
`
`to a claim term by the patentee that differs from the meaning that it would otherwise
`
`possess. In such cases, the inventor’s lexicography governs.”).
`
`Here, the patentee has clearly set forth a definition of the disputed term with
`
`reasonable clarity, deliberateness, and precision by including a section entitled
`
`“Definitions” that provides a succinct and clear definition of the term “data prefetch
`
`unit” that is at issue here. According to binding Federal Circuit precedent cited above
`
`that definition is controlling and must be adopted by the Board.
`
`Amazon provides no explanation for their proposed definition other than to state:
`
`For the purposes of this Petition, the broadest reasonable interpretation of ‘a data
`
`prefect unit’ is ‘a functional unit that retrieves computational data needed to
`
`complete the algorithm instantiated on the reconfigurable processor during
`
`processing.” Petition at 17 and 48. Amazon cites no intrinsic or extrinsic evidence
`
`in support of this proposed construction. Id. But Amazon’s unsupported construction
`
`simply cannot overcome the explicit definition of “data prefetch unit” provided in
`
`the specification. Phillips, 415 F.3d at 1316.
`
`Accordingly, the Board must adopt Patent Owner’s proposed construction.
`
`
`
`17
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`

`

`VI. AMAZON HAS FAILED TO DEMONSTRATE A REASONABLE
`LIKELIHOOD OF PREVAILING AS TO ANY CHALLENGED CLAIM.
`A petition must identify with particularity each claim challenged, the grounds on
`
`which the challenge to each claim is based, and the evidence that supports the
`
`grounds for the challenge to each claim. 35 U.S.C. § 312(a)(3). Per 37 C.F.R.
`
`§ 42.22(a), each petition must include a statement of the precise relief requested and
`
`a full statement of the reasons for the relief requested, including a de