UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`Juniper Networks, Inc. & Palo Alto Networks, Inc.
`Petitioners,
`
`
`v.
`
`Packet Intelligence LLC,
`Patent Owner.
`
`
`Case IPR2020-00337
`U.S. Patent No. 6,771,646
`
`PATENT OWNER’S SUPPLEMENTAL OPENING BRIEF REGARDING
`CLAIM CONSTRUCTION
`
`
`
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`Juniper Networks, Inc. & Palo Alto Networks, Inc.
`Petitioners,
`
`
`v.
`
`Packet Intelligence LLC,
`Patent Owner.
`
`
`Case IPR2020-00337
`U.S. Patent No. 6,771,646
`
`PATENT OWNER’S SUPPLEMENTAL OPENING BRIEF REGARDING
`CLAIM CONSTRUCTION
`
`
`
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`The specification defines “conversational flow”:
`
`A conversational flow…is the sequence of packets that are exchanged
`in any direction as a result of an activity-for instance, the running of an
`application on a server as requested by a client [and] some
`conversational flows involve more than one connection, and some even
`involve more than one exchange of packets between a client and server.
`
`’099 Patent at 2:37-54. This definition controls. Vitronics Corp. v. Conceptronic,
`
`Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). The Board’s preliminary construction for
`
`“conversational flow” did not address the nature of an activity: “the running of an
`
`application on a server as requested by a client.” ’099 Patent at 2:39-40.1 2 The
`
`word “activity” is used not in a vacuum but as part of how the patent defines a
`
`“conversational flow.” Adopting the entire definition from the specification would
`
`eliminate confusion about the nature of an “activity”—which must relate to the
`
`actions of a particular client or end user.
`
`The specification explains that “the network monitor should determine the
`
`protocol [], the application/use within the protocol (e.g., voice, video, data, real-
`
`time data, etc.), and an end user’s pattern of use within each application or the
`
`application context (e.g., options selected, service delivered, duration, time of day,
`
`data requested, etc.).” ’646 Patent at 1:53-58. Consistent with this explanation, an
`
`
`1 All emphases added unless otherwise noted.
`
`2 The ’099 Patent is incorporated by reference. See ’646 Patent at 1:16-18.
`
`1
`
`
`
`activity is “for instance, the running of an application on a server as requested by a
`
`client.” ’099 Patent at 2:39-40. “Any network activity—for example an application
`
`program run by the client 104 (CLIENT 1) communicating with another running
`
`on the server 110 (SERVER 2)—will produce an exchange of a sequence of packets
`
`over network 102 that is characteristic of the respective programs and of the
`
`network protocols.”). ’646 Patent at 5:10-15. Every time, the specification teaches
`
`that an activity stems from the actions of a particular client. Any construction must
`
`capture that an activity is “the flows or packet exchanges resulting from a particular
`
`client running an application.”
`
`The client–application combination captures the essence of an activity. It is
`
`not enough to simply detect the underlying application. The type of activity may be
`
`determined by the application; an activity as part of a conversational flow relates to
`
`a particular client running that application. Thus, two clients performing the same
`
`activity type (e.g., SAP print request) would result in two conversational flows
`
`because there are two activities—one for each client. See ’099 Patent at 3:4-6 (“If
`
`the clients were the same, the two packet exchanges would then be correctly
`
`identified as being part of the same conversational flow.”). The invention
`
`recognizes the application as part of its identification of conversational flows, and
`
`with announcement or advertising protocols (like SAP and RPC), this may depend
`
`on advertising or announcement information previously requested by a different
`
`2
`
`
`
`client. See id. at 3:44-48 (“…because one features of the invention is to correctly
`
`identify the second exchange as being associated with a print service on that server,
`
`such exchange would even be recognized if the clients were not the same.”).
`
`Petitioners misinterpret the SAP example to suggest that an activity merely
`
`relates to the type of application involved in a packet exchange. Yet in all instances,
`
`the specification teaches that a flow relates to the actions of a particular client. See
`
`id. at 12:4-5 (“A flow is a stream of packets being exchanged between any two
`
`addresses in the network.”); id. at 2:35-37 (“The term ‘connection flow’ is
`
`commonly used to describe all the packets involved with a single connection.”).
`
`Signatures, which are used to recognize flows, also include details about the client
`
`involved in the connection(s). See, e.g., id. at 32:43-47 (“A source and destination
`
`network address occupy the first two fields of each packet, and…the flow
`
`signature…will also contain these two fields…”); id. at 13:22-29 (explaining that
`
`most flow signatures rely on source and destination addresses). Any interpretation
`
`of activity that disregards the client involved in the activity, along with the
`
`underlying application, is unreasonably broad.
`
`The Board should construe activity as “the flows or packet exchanges
`
`resulting from a particular client running an application,” consistent with the
`
`lexicography provided by the construction of “conversational flow.” In this way, an
`
`activity relates to the combination of a particular client and a particular application.
`
`3
`
`
`
`Dated: June 22, 2021
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`By: /R. Allan Bullwinkel/
`
`
`R. Allan Bullwinkel (Reg. No. 77,630)
`
`Attorney for Patent Owner
`
`
`Packet Intelligence LLC
`
`4
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that pursuant to 37 C.F.R. § 42.6(e), a copy of the
`
`foregoing PATENT OWNER’S SUPPLEMENTAL OPENING BRIEF
`
`REGARDING CLAIM CONSTRUCTION was served via email to lead and backup
`
`counsel of record for Petitioners as follows:
`
`
`
`Lead Counsel for Petitioner
`Joseph F. Edell (Reg. No. 67,625)
`Phone:
`202-362-3524
`FISCH SIGLER LLP
`joe.edell.IPR@fischllp.com
`5301 Wisconsin Avenue NW
`
`Fourth Floor
`
`Washington, DC 20015
`Back-Up Counsel for Petitioner
`Scott A. McKeown (Reg. No. 42,866)
`Phone:
`202-508-4740
`ROPES & GRAY LLP
`scott.mckeown@ropesgray.com
`2099 Pennsylvania Avenue, NW
`
`Washington, D.C. 20006-6807
`Adam A. Allgood (Reg. No. 67,306)
`FISCH SIGLER LLP
`5301 Wisconsin Avenue NW
`Fourth Floor
`Washington, D.C. 20015
`James R. Batchelder
`forthcoming)
`ROPES & GRAY LLP
`1900 University Avenue, 6th Floor
`East Palo Alto, CA 94303-2284
`Mark D. Rowland (Reg. No. 32,077)
`ROPES & GRAY LLP
`1900 University Avenue, 6th Floor
`East Palo Alto, CA 94303-2284
`Andrew Radsch (pro hac forthcoming)
`ROPES & GRAY LLP
`
`650-617-4000
`Phone:
`mark.rowland@ropesgray.com
`
`
`650-617-4000
`Phone:
`Andrew.radsch@ropesgray.com
`
`5
`
`202-362-3536
`Phone:
`adam.allgood@fischllp.com
`
`(pro hac
`
`650-617-4000
`Phone:
`james.batchelder@ropesgray.com
`
`
`
`
`
`1900 University Avenue, 6th Floor
`East Palo Alto, CA 94303-2284
`
`
`
`Dated: June 22, 2021
`
`
`
`
`
`By: /R. Allan Bullwinkel/
`
`
`R. Allan Bullwinkel (Reg. No. 77,630)
`
`Attorney for Patent Owner
`
`
`Packet Intelligence LLC
`
`6
`
`
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