IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`
`
`DAEDALUS BLUE LLC,
`
`
`Plaintiff,
`
`
`
`Civil Action No.: 6:20-CV-1152-ADA
`
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`v.
`
`
`MICROSOFT CORPORATION,
`
`
`
`Defendant.
`
`DAEDALUS BLUE, LLC’S PRELIMINARY INFRINGEMENT CONTENTIONS
`
`
`
`
`
`
`
`
`Microsoft Ex. 1025, p. 1
`Microsoft v. Daedalus Blue
`IPR2021-00831
`
`

`

`I.
`
`PRELIMINARY STATEMENT
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`Plaintiff Daedalus Blue, LLC (“Daedalus”) hereby submits these Preliminary
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`Infringement Contentions to Defendant Microsoft Corporation (“Microsoft”).
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`These Preliminary Infringement Contentions are based on current knowledge,
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`understanding, and belief as to the facts and information available as of the date of this
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`disclosure. Daedalus has not completed its investigation of the facts in this case. Certain facts
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`are not readily ascertainable through a reasonable investigation of publicly available information,
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`including the source code and internal documentation for the accused instrumentalities.
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`Accordingly, certain of the contentions herein are based on information and belief based on a
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`review of publicly available documents and information, subject to further investigation in
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`discovery. Discovery has not yet begun. Additional discovery and investigation, including
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`discovery from third parties, may require Daedalus to further supplement or modify its
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`disclosures, its assertion of claims, its infringement contentions, and/or the evidence that
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`Daedalus will use to support its infringement allegations. Plaintiff expressly reserves the right to
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`seek leave from the Court to open third-party discovery to obtain documents and information
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`relating to conception and reduction to practice, which may establish earlier priority dates than
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`those identified herein.
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`Plaintiff’s contentions regarding infringement of specific claims will depend on the claim
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`construction ultimately adopted by the Court. Because said construction has not yet occurred,
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`Plaintiff’s contentions herein are preliminary, and subject to change based upon the Court’s
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`construction.
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`These disclosures are made without waiving any applicable privilege, immunity, or
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`objection which Daedalus is entitled to assert, including the attorney-client privilege and the
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`attorney work product doctrine and applicable privacy privileges.
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`-1-
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`Microsoft Ex. 1025, p. 2
`Microsoft v. Daedalus Blue
`IPR2021-00831
`
`

`

`II.
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`DAEDALUS’ DISCLOSURES
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`Pursuant to the Court’s Sample Order Governing Proceedings in Patent Cases, Plaintiff
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`Daedalus asserts that the Patents-in-Suit claim priority to, and are entitled to priority date at least
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`as early as:
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`• February 7, 2003 for each asserted claim of U.S. Patent No. 7,177,886 (“the ’886
`
`Patent”);
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`• November 14, 2003 for each asserted claim of U.S. Patent No. 7,437,730 (“the
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`’730 Patent”);
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`• January 3, 2007 for each asserted claim of U.S. Patent No. 8,381,209 (“the ’209
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`Patent”);
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`• April 14, 2010 for each asserted claim of U.S. Patent No. 8,572,612 (“the ’612
`
`Patent”); and
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`• March 14, 2003 for each asserted claim of U.S. Patent No. 8,671,132 (“the ’132
`
`Patent”).
`
`Plaintiff is not in possession of the documents evidencing conception and reduction to
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`practice except for the file histories, produced herewith as Bates Nos. DBMSFT000001 -
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`DBMSFT001238, which establish constructive reduction to practice as of the earliest filing date
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`listed thereon. As noted above, Daedalus intends to seek third party discovery relating to the
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`conception and reduction to practice for each of the Asserted Patents. Daedalus will supplement
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`these contentions when such information becomes available.
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`III. DAEDALUS’ INFRINGEMENT CONTENTIONS
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`Daedalus preliminarily asserts the following patents (collectively, “Asserted Patents”)
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`and claims (collectively, “Asserted Claims”), and attaches claim charts hereto:
`
`-2-
`
`Microsoft Ex. 1025, p. 3
`Microsoft v. Daedalus Blue
`IPR2021-00831
`
`

`

`Appendix United States
`Patent No.
`A
`7,177,886
`B
`7,437,730
`C
`8,381,209
`D
`8,572,612
`E
`8,671,132
`
`Asserted Claim(s)
`1, 2, 3, 6, 7, 10
`1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16
`1, 2, 3, 4, 5, 6, 7, 8
`1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15
`1, 2, 3, 4 ,8, 9, 10, 15, 16 17 18, 21, 22, 23, 24,
`25, 26, 27
`
`
`References to instrumentalities in the attached claim charts are exemplary only and
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`should not be construed as limiting the scope of any Asserted Claims. Daedalus asserts that each
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`element of each Asserted Claim is literally present in the Accused Instrumentalities. In addition,
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`depending on the Court’s claim construction, and to the extent any of the elements of the
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`Asserted Claims may later be determined not to be literally present, the doctrine of equivalents
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`may also apply.
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`Daedalus reserves the right to amend its assertion of particular claims based on the
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`receipt of discovery in the matter, including, for example, additional details concerning the
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`specific structures, operation, and functionality in the Accused Instrumentalities, which
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`information is not available via an inspection of public materials.
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`Microsoft directly infringes the system and apparatus claimed in the Asserted Claims of
`
`the ’886 Patent under 35 U.S.C. § 271(a) by making, using, selling, offering for sale, and/or
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`importing into the United States servers, including in Azure, that utilize Microsoft SQL Server
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`2012, 2014, 2016, 2017, 2019, and Azure SQL Server Always On Availability Groups
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`(“Availability Groups”), including Microsoft cloud-based products or technologies that run on
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`the SQL Server database engine, and by making, using selling, and/or offering for sale Azure
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`SQL Databases, SQL Server on Azure Virtual Machines, and Azure SQL Managed Instances,
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`and all reasonably similar products or technologies with the Availability Groups feature (“the
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`’886 Accused Instrumentalities”). On information and belief, to which further discovery will
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`-3-
`
`Microsoft Ex. 1025, p. 4
`Microsoft v. Daedalus Blue
`IPR2021-00831
`
`

`

`provide evidence, Microsoft makes and uses the ’886 Accused Instrumentalities in the regular
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`course of its business, including with regard to its Cloud based services, such as Office365, and
`
`Azure.
`
`Microsoft directly infringes the system and apparatus claimed in the Asserted Claims of
`
`the ’730 Patent under 35 U.S.C. § 271(a) by making, using, selling, offering for sale, and/or
`
`importing into the United States the Microsoft Azure, including Azure’s IaaS, PaaS, and SaaS
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`cloud services, and other cloud-based products or technologies that implement and/or run Azure
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`IaaS, PaaS, or SaaS, as well as all reasonably similar products or technologies, including, for
`
`example, Microsoft Teams, Sharepoint Online, Office Online, Xbox Live Services, Office365,
`
`and other Microsoft branded services that run on Azure Cloud Services or Azure Service Fabric
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`platforms, in conjunction with at least the following features of the Azure platform: Azure
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`Service Fabric, Cluster Resource Manager, Azure Kubernetes Service, cluster autoscaler
`
`component, horizontal pod autoscaler (HPA), Azure Resource Manager, Compute Resource
`
`Provider (CRP), Microsoft.Compute, Availability Zones, Availability Sets, Virtual Machine
`
`Scale Sets, Azure Monitor, Autoscale, vertical scaling, Azure Load Balancer, Fabric Controller,
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`front end, Orchestrator, SmartHarvest, ElasticVMs, cpugroup, Resource Central, compute
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`throttling, Azure Monitor, and all reasonably similar products or technologies (“’730 Accused
`
`Instrumentalities”).
`
`Microsoft directly infringes the methods claimed in the Asserted Claims of the ’209
`
`Patent under 35 U.S.C. § 271(a) by making, using, selling, offering for sale, and/or importing
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`into the United States the technology referred to by Defendant as Site Recovery, node healing
`
`and VM Migration, in conjunction with at least the following features of the Azure platform:
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`hypervisor firewall rules, machine config or infrastructure rules, role configuration file rules,
`
`-4-
`
`Microsoft Ex. 1025, p. 5
`Microsoft v. Daedalus Blue
`IPR2021-00831
`
`

`

`fabric controller, resource management, Network Resource Provider, Microsoft.Network,
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`Network Security Groups, access control lists, site recovery plans, virtual network interface
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`cards, PowerShell, Azure CLI, Virtual Filtering Platform (VFP), and Microsoft cloud-based
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`products or technologies that implement and/or run on Microsoft Azure using the claimed
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`features, including but not limited to Microsoft’s Teams, SharePoint Online, Office Online,
`
`Office365 and Xbox Live services, and all reasonably similar products or technologies (“’209
`
`Accused Instrumentalities”).
`
`Microsoft directly infringes the methods and apparatus claimed in the Asserted Claims of
`
`the ’612 Patent under 35 U.S.C. § 271(a) by making, using, selling, offering for sale, and/or
`
`importing into the United States the technology referred to by Defendant as Microsoft Azure
`
`Virtual Machine Scale Sets (VMSS), which is used in IaaS, PaaS, and SaaS, and other Microsoft
`
`cloud-based products or technologies that implement and/or run VMSS, including, for example,
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`Office365, Microsoft Teams, SharePoint Online, Office Online, and Xbox Live Services, in
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`conjunction with at least the following features of the Azure platform: Microsoft data centers,
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`Windows Server, Azure Cloud Services, Windows Azure cloud operating system, Azure storage,
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`managed disks, host virtual machine operating system, guest virtual machine operating system,
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`“virtualization technology,” Hypervisor, Hyper-V, Fabric Controller, Service Fabric, Network
`
`Resource Provider, Azure Compute, Resource Manager, Azure Monitor, VM insights, Azure
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`resource access management tools, virtual machine manager, Orchestrator, uniform and flexible
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`orchestration modes, VMSS-flex, front end, load balancer, autoscale, virtual machine template,
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`API, Azure portal, Azure CLI, Azure PowerShell, virtual machines, scale sets, Azure Service
`
`Fabric, and all reasonably similar products or technologies (“’612 Accused Instrumentalities”).
`
`-5-
`
`Microsoft Ex. 1025, p. 6
`Microsoft v. Daedalus Blue
`IPR2021-00831
`
`

`

`Microsoft directly infringes the methods and apparatus claimed in the Asserted Claims of
`
`the ’132 Patent under 35 U.S.C. § 271(a) by making, using, selling, offering for sale, and/or
`
`importing into the United States the technology referred to by Defendant as Microsoft Azure
`
`Blob storage, and Microsoft cloud-based products or technologies that run Azure Blob Storage
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`(including but not limited to Microsoft Xbox and Azure Data Lake Storage), and all reasonably
`
`similar products or technologies, including Azure Data Lake Storage to the extent it is
`
`considered a separate service (“’132 Accused Instrumentalities”).
`
`Microsoft also indirectly infringes the Asserted Claims of the Asserted Patents under 35
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`U.S.C. § 271(b) by knowingly encouraging and inducing its customers to directly infringe of the
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`Asserted Claims through the use of the Accused Instrumentalities, with knowledge and specific
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`intention that such products will be used by its customers, and that such use will necessarily
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`result in infringement of the Asserted Claims.
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`Defendant also contributes to the infringement of the Asserted Claims of the ’886 Patent
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`under 35 U.S.C. § 271(c), knowing that the ’886 Accused Instrumentalities constitute a material
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`part of the claimed invention, that they are especially made or adapted for use in infringing the
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`Asserted Claims, and that they are not staple articles or commodities of commerce capable of
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`substantial non-infringing use.
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`Defendant further contributes to the infringement of the Asserted Claims of the ’730
`
`Patent under 35 U.S.C. § 271(c), knowing that the ’730 Accused Instrumentalities constitute a
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`material part of the claimed invention, that they are especially made or adapted for use in
`
`infringing the Asserted Claims, and that they are not staple articles or commodities of commerce
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`capable of substantial non-infringing use.
`
`-6-
`
`Microsoft Ex. 1025, p. 7
`Microsoft v. Daedalus Blue
`IPR2021-00831
`
`

`

`Defendant further contributes to the infringement of the Asserted Claims of the ’612
`
`Patent under 35 U.S.C. § 271(c), knowing that the ’612 Accused Instrumentalities constitute a
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`material part of the claimed invention, that they are especially made or adapted for use in
`
`infringing the Asserted Claims, and that they are not staple articles or commodities of commerce
`
`capable of substantial non-infringing use.
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`Daedalus incorporates by reference its Complaint (including any further amendments
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`thereto) for a discussion of its direct and indirect infringement allegations, including its
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`assertions regarding Microsoft’s knowledge of the Asserted Patents and its infringement thereof.
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`Daedalus reserves the right to amend these preliminary contentions during the course of
`
`discovery, upon construction of the claims by the Court, and/or as otherwise permitted by the
`
`Court.
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`
`
`Dated: May 20, 2021
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`
`
`Respectfully submitted,
`
`/s/ Denise M. De Mory
`
`Denise M. De Mory
`Cal. Bar No. 168076
`ddemory@bdiplaw.com
`Jennifer L. Gilbert
`Cal. Bar No. 255820
`jgilbert@bdiplaw.com
`Robin Curtis
`Cal. Bar No. 271702
`rcurtis@bdiplaw.com
`BUNSOW DE MORY LLP
`701 El Camino Real
`Redwood City, CA 94063
`Telephone: (650) 351-7248
`Facsimile: (415) 426-4744
`
`Attorney in Charge for Plaintiff
`Daedalus Blue, LLC
`
`
`-7-
`
`Microsoft Ex. 1025, p. 8
`Microsoft v. Daedalus Blue
`IPR2021-00831
`
`

`

`B. Russell Horton
`State Bar No. 10014450
`GEORGE BROTHERS KINCAID & HORTON,
`L.L.P.
`114 West 7th Street, Ste. 1100
`Austin, Texas 78701
`(512) 495-1400 telephone
`(512) 499-0094 facsimile
`rhorton@gbkh.com
`
`Attorney for Plaintiff
`Daedalus Blue, LLC
`
`
`
`
`-8-
`
`Microsoft Ex. 1025, p. 9
`Microsoft v. Daedalus Blue
`IPR2021-00831
`
`

`

`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that the foregoing document was served by e-mail on all
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`counsel of record on the 20th day of May, 2021.
`
`/s/ Denise M. De Mory
`Denise M. De Mory
`
`
`
`-9-
`
`Microsoft Ex. 1025, p. 10
`Microsoft v. Daedalus Blue
`IPR2021-00831
`
`