`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`JUNIPER NETWORKS, INC. & PALO ALTO NETWORKS, INC.,
`
`Petitioner,
`
`v.
`
`PACKET INTELLIGENCE LLC,
`
`Patent Owner.
`
`____________
`
`Case IPR2020-00337
`
`U.S. Patent No. 6,771,646
`
`____________
`
`
`
`PETITIONER’S OPENING BRIEF ADDRESSING THE PROPER
`CONSTRUCTION FOR “ACTIVITY” IN THE CONTEXT OF THE
`CONSTRUCTION OF “CONVERSATIONAL FLOW”
`
`
`
`
`
`IPR2020-00337
`U.S. Patent No. 6,771,646
`In the context of “conversational flow,” the Board should construe “activity”
`
`as “application program, service, or network protocol.” This is the ordinary and
`
`customary meaning of a network “activity” based on the intrinsic record.
`
`I.
`
`The ’646 Patent Uses “Activity” Consistent With Its Ordinary Meaning.
`The ’646 patent describes the field of the invention as including “classifica-
`
`tion according to protocol and application program.” ’646 at 1:38-39. The patent
`
`states that the purported invention associates those application programs and proto-
`
`cols, and related services, with conversational flows. For example, the Abstract of
`
`the incorporated ’099 patent refers to determining “the application program asso-
`
`ciated with the conversational flow.” As another example, the patent describes
`
`“protocols such as RPC, DCOMP, and SAP, which enable a service” leading to
`
`“disjointed conversational exchanges” or “disjointed flows.” ’099 at 2:45-3:22.
`
`The patent includes over 100 references to application programs, services, or net-
`
`work protocols when describing the “activity” that results in packet exchanges to
`
`form a conversational flow. E.g., id. at 3:52-59 (discussing exchanges “associated
`
`with a print service” as belonging to the “same conversational flow”), 4:51-56
`
`(recognizing and classifying “into respective client/server applications,” and “at all
`
`protocol layer levels”), 13:29-30, 16:28-34, 34:52-58 (identifying “flow signature”
`
`based on protocol); see also ’646 at 6:12-16 (referring to “application’s conversa-
`
`tional flow” and “application program’s conversational flow”), 6:43 (recognizing
`
` 1
`
`
`
`IPR2020-00337
`U.S. Patent No. 6,771,646
`“associated application programs”), 6:67-7:3 (identifying conversational flow
`
`based on “known patterns for the protocol and for the possible applications”),
`
`25:15-44 (“tracking applications” based on TCP or UDP protocol), 26:15-63(us-
`
`ing “RPC protocol” to associate flow with “application program”), 27:64-65
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`(“classif[ying] flows that relate to the particular service ‘program’”), 29:43-44
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`(recognizing packets “associated with the application ‘a2’.”).
`
`From these disclosures, it would be understood that a conversational flow re-
`
`sults from an application program, service, or network protocol. Accordingly,
`
`when defining “conversational flow” as “the sequence of packets that are ex-
`
`changed in any direction as a result of an activity,” the ’646 patent uses “activity”
`
`to refer to an application program, service, or network protocol. ’099 at 2:37-39.
`
`
`
`In the context of packet-based networks, the specification confirms the ordi-
`
`nary meaning of “activity” by explaining that “a conversational flow” involves an
`
`exchange “characteristic of” the application programs and network protocols:
`
`Any network activity … will produce an exchange of a sequence of
`packets, called a conversational flow, over network over 102 that is
`characteristic of the respective programs and of the network protocols.
`
`’646 at 5:10-15; Ex. 1016 at 19. This passage focuses on identifying which pro-
`
`grams or protocols produced the exchange of packets—not on particular cli-
`
`ents/servers. And the ’646 treats “services” like application programs, confirming
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`that a “service” is also “an activity.” E.g., ’099 at 1:64, 12:37, 29:20, 31:48-50.
`
` 2
`
`
`
`IPR2020-00337
`U.S. Patent No. 6,771,646
`In its Reply, Petitioner explained that examples from PO’s patent disclosures
`
`(including the incorporated ’099 patent and ’903 Provisional) show that “activity”
`
`retains its ordinary meaning. For instance, Petitioner established that “activity” in-
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`cludes (a) the same SAP print service or application program used by different cli-
`
`ents; (b) an RPC application program running on a second server; and (c) an FTP,
`
`PointCast, Skype, or web traffic application program. Reply at 3-6. And Petitioner
`
`emphasized that, “[a]s the Board correctly observed in its ID, and consistent with
`
`the SAP and RPC embodiments described above, multiple packet communications
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`of the same service or application meet the ‘activity’ requirement for conversa-
`
`tional flows, regardless of the particular client or clients.” Id. at 6.
`
`II. No Lexicography, Disclaimer, or Example Alters Meaning of “Activity.”
`
`The intrinsic record doesn’t provide any definition of “activity” departing
`
`from its ordinary meaning, or clearly and unmistakably disavow the full scope of
`
`“activity.” Cf. Hill-Rom Services, Inc. v. Stryker Corp., 755 F.3d 1367, 1372 (Fed.
`
`Cir. 2014). Thus, it would be improper to restrict the construction of “activity” to a
`
`particular embodiment or example of the ’646 patent. Id.
`
`In sum, in the context of “conversational flow, the Board should construe
`
`“activity” as “application program, service, or network protocol.”
`
`Dated: June 22, 2021
`
`
`
`Respectfully submitted,
`
`/Scott McKeown/
` Scott McKeown
`Counsel for Petitioner
`
`
`
` 3
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that the foregoing PETITIONER’S OPENING BRIEF
`
`ADDRESSING THE PROPER CONSTRUCTION FOR “ACTIVITY” IN THE CON-
`
`TEXT OF THE CONSTRUCTION OF “CONVERSATIONAL FLOW” was served in
`
`its entirety by filing through the Patent Trial and Appeal Board End to End (PTAB
`
`E2E), as well as providing a courtesy copy via e-mail to the following attorneys of rec-
`
`ord for Patent Owner listed below:
`
`Lead Counsel
`R. Allan Bullwinkel
`Reg. No. 77,630
`Heim Payne & Chorush, LLP
`1111 Bagby Street, Suite 2100
`Houston, TX 77002
`Telephone: 713-221-2000
`Facsimile: 713-221-2021
`abullwinkel@hpcllp.com
`
`
`
`Dated: June 22, 2021
`
`
`
`
`Back-up Counsel
`Michael F. Heim
`Reg. No. 32,702
`Heim Payne & Chorush, LLP
`1111 Bagby Street, Suite 2100
`Houston, TX 77002
`Telephone: 713-221-2000
`Facsimile: 713-221-2021
`mheim@hpcllp.com
`
`
`/Dara Del Rosario/
`By:
`Name: Dara Del Rosario
`ROPES & GRAY LLP
`
`
`
`
`
`
`
`
`
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