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 RESPONSIVE 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 RESPONSIVE 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
`
`
`
`Petitioners’ proposed construction for activity is wrong for two reasons. First,
`
`it improperly expands the scope of activity to any sort of categorization, rather than
`
`recognizing that an activity is defined in the specification as including multiple
`
`attributes. For example, Petitioner equates applications and protocols, suggesting
`
`that either constitutes an activity, but this directly contradicts the specification’s
`
`teachings. Second, Petitioner ignores that activities involve particular clients, as
`
`shown by the patentee’s lexicography for “conversational flow” and its attendant
`
`activity examples. For these reasons, an “activity” is “the flows or packet exchanges
`
`resulting from a particular client running a specific application.”
`
`First, the specification teaches that application programs (or applications) and
`
`services are generally synonymous. See ’099 Patent at 1:56 (describing “services
`
`(i.e., application programs)”). But it consistently treats application programs (or
`
`applications) and protocols distinctly. See, e.g., id. at 1:42-43 (“classification
`
`according to protocol and application program”); id. at 3:31-33 (“the network
`
`monitor should determine the protocol . . . , the application/ use within the
`
`protocol”); id. at 18:3 (“each type of application and protocol”). This distinction is
`
`best shown by Figure 2, which reveals how flow keys are constructed for
`
`recognizing conversational flows. The exemplary flow keys include both a protocol
`
`(p1, 242; p2, 252) and an application (a1, 244; a2, 254). See ’099 Patent at Fig. 2; id.
`
`at 33:37-39 (“The next field used to build the signature is a protocol field 242
`
`1
`
`
`
`extracted from packet 206’s field 216, and thus is the protocol ‘p1’”); id. at 34:1-2
`
`(describing p2); id. at 33:50-52 (“So in this case, the signature KEY-1 points to a
`
`known application denoted ‘a1’ (Sun RPC Bind Lookup) . . . .”); id. at 34:3-5
`
`(describing a2). An activity relates to a particular application program, but
`
`application programs can use multiple protocols. Petitioners’ attempt to equate an
`
`activity with a protocol is improper.
`
`More critically, Petitioners’ proposed construction is wrong because it
`
`ignores an important component of an activity—the client that is invoking the
`
`activity and
`
`thereby participating
`
`in
`
`that conversational activity. The
`
`lexicographical definition of conversational flow explains that an activity is “for
`
`instance, the running of an application on a server as requested by a client . . . .”
`
`Id. at 2:39-40. Thus, an activity tethers an application to the client that is invoking
`
`the application. The specification further explains: “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 protocol.” Id. at 9:14-19. Petitioners rely on this same
`
`passage in support of their construction. See Paper 42 at 2. Yet Petitioners crop the
`
`quote, omitting the underlined portion, which explains that a network activity is
`
`based on an “application program run by [a] client.” Packet exchanges relating to a
`
`2
`
`
`
`particular client and application form a conversational flow. 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.”). In a desperate
`
`attempt to have its prior art references meet the claims, Petitioners define a
`
`conversational activity by chopping off the conversation participant(s).
`
`Patent Owner’s proposed construction does not suffer from these same flaws
`
`and is based on the specification context provided for activity. Each example details
`
`a particular application program (or service) and a client that is invoking the
`
`application or service. See ’099 Patent at 2:39-40 (“the running of an application
`
`on a server as requested by a client”); id. at 9:14-17 (“an application program run
`
`by the client 104 (CLIENT 1) communicating with another running on the server
`
`110 (SERVER 2)”). Petitioners do not dispute that there are instances of activities.
`
`See Paper 30 at 2 (“PO argues again that a ‘conversational flow’ is limited to a
`
`single instance of an activity by a ‘particular user or client device.’”). Each activity
`
`instance correlates to a particular client invoking a particular type of activity, and
`
`thus to a separate conversational flow.
`
`The Board should construe “activity” as to recognize the participants to a
`
`conversational flow, as Patent Owner proposes. This construction aligns with the
`
`specification’s teaching that activities and flows (including conversational flows)
`
`relate to particular clients.
`
`3
`
`
`
`
`
`Dated: June 29, 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 RESPONSIVE 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
`
`202-362-3536
`Phone:
`adam.allgood@fischllp.com
`
`(pro hac
`
`650-617-4000
`Phone:
`james.batchelder@ropesgray.com
`
`
`
`650-617-4000
`Phone:
`mark.rowland@ropesgray.com
`
`
`650-617-4000
`Phone:
`Andrew.radsch@ropesgray.com
`
`5
`
`
`
`1900 University Avenue, 6th Floor
`East Palo Alto, CA 94303-2284
`
`
`
`Dated: June 29, 2021
`
`
`
`
`
`
`
`By: /R. Allan Bullwinkel/
`
`R. Allan Bullwinkel (Reg. No. 77,630)
`
`Attorney for Patent Owner
`
`Packet Intelligence LLC
`
`6
`
`
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