`
`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________
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`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 RESPONSIVE 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
`PO’s proposed construction of “the flows or packet exchanges resulting
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`from a particular client running an application” equates “activity” with “flows or
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`packet exchanges.” PO Br. at 3. But this is illogical, as it would result in a “conver-
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`sational flow” being defined confusingly as “the sequence of packets that are ex-
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`changed in any direction as a result of [the flows or packet exchanges resulting
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`from a particular client running an application].” PO’s construction also distorts
`
`the specification and improperly limits the claims to an embodiment. It should
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`therefore be rejected, and Petitioner’s proposal adopted.1
`
`I.
`
`Network “Activity” Refers To An Application, Service, Or Network
`Protocol Communication—Not Actions Of “A Particular Client.”
`In support of its construction, PO quotes the specification: “an activity—for
`
`instance, the running of an application on a server as requested by a client.” But
`
`this quote doesn’t define “activity” and is facially non-limiting given its use of the
`
`exemplary language “for instance.” Catalina Mktg. Int’l v. Coolsavings.com, Inc.,
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`289 F.3d 801, 811 (Fed. Cir. 2002). PO’s citation to Vitronics’s lexicography dis-
`
`cussion is unavailing because the specification never uses “activity” inconsistently
`
`with or contrary to its plain and ordinary meaning.
`
`PO’s proposal re-writes the non-limiting language it seeks to incorporate—
`
`
`1 Under either party’s “activity” construction, the trial grounds render obvious the
`“conversational flow” elements. Pet. at 20-22, 49-56, 80-95; Reply at 8-14, 21-27.
`
` 1
`
`
`
`IPR2020-00337
`U.S. Patent No. 6,771,646
`changing “the running of an application on a server as requested by a client” to “a
`
`particular client running an application.” This further supports that PO’s construc-
`
`tion is incorrect. Indeed, the ’646 patent and incorporated ’099 patent use the word
`
`“particular” over 100 times, but never recite “particular client.”
`
`PO’s other specification cites are equally unavailing. PO quotes a back-
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`ground discussion of what a network monitor “should” determine, including proto-
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`col, application, and “an end user’s pattern of use within each application.” PO Br.
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`at 1. But the specification doesn’t equate “end user’s pattern” with “activity,” or
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`otherwise limit or define “activity” as actions of a particular client. Rather, the
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`same background discussion refers to “network activity”—not “particular client”
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`activity. ’646 at 1:62-63. And the specification’s other use of “network activity”
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`refers to “an application program” that produces an exchange of packets character-
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`istic of the programs and protocols involved. Id. at 5:10-15.
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`Further, PO’s assertion that “[e]very time, the specification teaches that an
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`activity stems from the actions of a particular client” (PO Br. at 2) is incorrect be-
`
`cause the patent describes certain activities that don’t involve any client action. For
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`example, the ’646 discloses “‘server announcement’ type exchanges” in which
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`“messages are sent on the network, in either a broadcast or multicast approach, to
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`announce a server and application.” ’646 at 24:43-55; id. at 26:8-17, 27:56-59 (de-
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`scribing a server’s RPC portMapper announcements as activity initiating packet
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` 2
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`
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`IPR2020-00337
`U.S. Patent No. 6,771,646
`exchanges). Thus, it isn’t necessary that a client invokes an activity.
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`Accordingly, the Board should reject PO’s proposal limiting “activity” to “a
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`particular client” running an application because it would exclude specification
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`embodiments, such as server announcements resulting in conversational flows.
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`II.
`
`PO Ignores That An Application, Service, Or Network Protocol Results
`In The Conversational Flow, Regardless Of Any Particular Client.
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`PO argues that two clients using the same service results in two activities,
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`while “activity” must be limited to a particular client running an application to
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`avoid being “unreasonably broad.” PO Br. at 2-3. But PO ignores that the specifi-
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`cation teaches that it is the service (or related application or protocol) that gives
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`rise to a sequence of packets identified as a conversational flow. In the print-ser-
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`vice example of the ’099 patent, the SAP protocol and the server application’s
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`print request procedure result in disjointed flows. ’099 at 2:49-3:6; see incorpo-
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`rated ’903 Prov’l at 3:9-4:2. Likewise, RPC is another “protocol[] that may lead to
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`disjointed flows.” ’099 at 3:7-8. A server sends an RPC message that associates a
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`port with a program or service. Id. at 31:10-15, 26-41. The monitor creates a signa-
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`ture from this information that “may be used to identify packets associated with the
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`server” and stores the program’s states “for later classification of flows that relate
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`to the particular service ‘program’” or “application.” Id. at 32:1-9, 32:27-29, 34:8-
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`13, 34:42-44. In both examples, the particular client or clients involved aren’t at is-
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`sue because the application, service, or protocol is the same for all clients.
`
` 3
`
`
`
`IPR2020-00337
`U.S. Patent No. 6,771,646
`Respectfully submitted,
`
`/Joseph F. Edell/
` Joseph F. Edell
`Counsel for Petitioner
`
`
`
`
`
`
`
`
`
`
` 4
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`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that the foregoing PETITIONER’S RESPONSIVE
`
`BRIEF ADDRESSING THE PROPER CONSTRUCTION FOR “ACTIVITY” IN THE
`
`CONTEXT OF THE CONSTRUCTION OF “CONVERSATIONAL FLOW” was
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`served in its entirety by filing through the Patent Trial and Appeal Board End to End
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`(PTAB E2E), as well as providing a courtesy copy via e-mail to the following attorneys
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`of record 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
`
`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
`
`
`
`
`Dated: June 29, 2021
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`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/Joseph F. Edell/
`
`Joseph F. Edell (Reg. No. 67,625)
`FISCH SIGLER LLP
`5301 Wisconsin Avenue NW
`Fourth Floor
`Washington, DC 20015
`Phone: 202.362.3524
`Email: Joe.Edell.IPR@fischllp.com
`
`
`
`
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