`571-272-7822
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` Paper 11
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` Entered: November 8, 2021
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MICROSOFT CORPORATION,
`Petitioner,
`
`v.
`
`DAEDALUS BLUE, LLC,
`Patent Owner.
`____________
`
`IPR2021-00832
`Patent 8,381,209 B2
`____________
`
`
`
`Before SALLY C. MEDLEY, HYUN J. JUNG, and
`ARTHUR M. PESLAK, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
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`IPR2021-00832
`Patent 8,381,209 B2
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`
`INTRODUCTION
`I.
`Microsoft Corporation (“Petitioner”) filed a Petition for inter partes
`review of claims 1–8 of U.S. Patent No. 8,381,209 B2 (Ex. 1001, “the
`’209 patent”). Paper 1 (“Pet.”). Daedalus Blue, LLC (“Patent Owner”) filed
`a Preliminary Response. Paper 6 (“Prelim. Resp.”). In accordance with
`Board authorization, Petitioner filed a Reply to the Preliminary Response
`(Paper 9) and Patent Owner filed a Sur-Reply (Paper 10).
`Institution of an inter partes review is authorized by statute when “the
`information presented in the petition . . . and any response . . . shows that
`there is a reasonable likelihood that the petitioner would prevail with respect
`to at least 1 of the claims challenged in the petition.” 35 U.S.C. § 314(a).
`Upon consideration of the Petition, the Preliminary Response, and the
`evidence of record, we decline to institute review of the challenged claims of
`the ’209 patent.
`
`A. Related Matters
`The parties indicate that related district court litigations are Daedalus
`Blue, LLC v. Microsoft Corp., No. 6:20-cv-01152 (W.D. Tex.) (“the district
`court case”) and Daedalus Blue, LLC v. Oracle Corp. et al., No. 6:20-cv-
`00428 (W.D. Tex.) (terminated). Pet. 4; Paper 4, 2.
`
`B. The ’209 Patent
`The ’209 patent relates to “virtual machine migration with filtered
`network connectivity which includes enforcing network security and routing
`at a hypervisor layer at which a virtual machine partition is executed and
`which is independent of guest operating systems.” Ex. 1001, 1:11–15. The
`’209 patent describes that “in order to perform maintenance on or provide a
`fail-over for a processor device or machine, it is desirable to move or
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`migrate a virtual machine (VM) from one processor machine or device to
`another.” Id. at 2:27–30. The ’209 patent seeks to address shortcomings of
`conventional approaches for VM migration (id. at 4:31–40), which include
`“a complex update scheme to update the ACLs [access control lists] in the
`real switches and the filters in the firewalls,” and “very little network
`security” (id. at 3:6–11).
`Figure 4, reproduced below, illustrates an embodiment for “securing a
`filtered network, including enforcing network security and routing at a
`hypervisor layer.” Id. at 8:31–34.
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`Figure 4 shows a method, beginning with step 401, which “copies
`network security and routing for the virtual machine to the hypervisor
`layer.” Id. at 8:37–39. Then, the method “migrates the virtual machine from
`a first hardware device to a second hardware device” in step 402, “updates
`routing controls for the virtual machine at the hypervisor level” in step 403,
`“updates traffic filters for the virtual machine at the hypervisor level” in
`step 404, “and advertises the migration of the virtual machine from the first
`hardware device to the second hardware device” in step 405. Id. at 8:39–46.
`In steps 406 and 407, network traffic for the virtual machine is routed to the
`second hardware device based on the routing controls and access is granted
`to the virtual machine on the second hardware device based on the traffic
`filters. Id. at 8:47–51.
`The ’209 patent describes that by copying security and routing to the
`hypervisor layer, “the user will see no difference in operation.” Id. at 9:25–
`28. For example, “the first and second device . . . would each act the same,
`and preferably, would each have the same internet protocol (IP) address.”
`Id. at 9:29–31. Moreover, because “the hypervisor layer provides traffic
`filtering and routing updating,” “the real switches do not need to be updated
`at the first and second hardware devices.” Id. at 9:39–42.
`
`C. Illustrative Claim
`Petitioner challenges claims 1–8 of the ’209 patent. Claim 1 is
`independent, and claims 2–8 depend therefrom. Claim 1 is reproduced
`below.
`1. A computer implemented method of controlling network
`security of a virtual machine, the method comprising
`enforcing network security and routing at a hypervisor layer
`via dynamic updating of routing controls initiated by a
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`migration of said virtual machine from a first device to a
`second device.
`Ex. 1001, 15:39–43.
`
`D. Asserted Grounds of Unpatentability
`Petitioner asserts that claims 1–8 are unpatentable based on the
`following grounds (Pet. 7):1
`
`Claims Challenged
`1, 3, 6
`2, 4, 5
`
`7, 8
`
`35 U.S.C §
`103(a)2
`103(a)
`
`103(a)
`
`References/Basis
`Dhawan3, Clark4
`Dhawan, Clark,
`Warfield5
`Dhawan, Clark,
`Chandika6
`
`
`1 Although Petitioner adds the general knowledge of a person of ordinary
`skill in the art to the express statement of each alleged ground of
`unpatentability (Pet. 7, 36, 45, 55), that is not necessary. Obviousness is
`determined from the perspective of one with ordinary skill in the art. We
`leave out the express inclusion of the general knowledge of one with
`ordinary skill.
`2 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
`(2011) (“AIA”), amended 35 U.S.C. § 103. The ’209 patent was filed on
`January 3, 2007. Ex. 1001, code (22). Because the filing date is before the
`effective date of the applicable AIA amendments, we refer to the pre-AIA
`version of 35 U.S.C. § 103.
`3 U.S. Pat. App. Pub. No. US 2007/0079307 A1, published Apr. 5, 2007
`(Ex. 1005, “Dhawan”).
`4 “Live Migration of Virtual Machines” (Ex. 1006, “Clark”). Petitioner
`asserts a publication date of May 3, 2005, and a public accessibility date of
`February 28, 2006. Pet. 6 (citing Ex. 1009).
`5 “Isolation of Shared Network Resources in XenoServers” (Ex. 1007,
`“Warfield”). Petitioner asserts a publication date of November 2002, and a
`public accessibility date of December 2002. Pet. 7–10 (citing Exs. 1024–
`1045).
`6 U.S. Patent No. 8,107,370 B2, filed Apr. 6, 2005, issued Jan. 31, 2012
`(Ex. 1008, “Chandika”).
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`II. DISCUSSION
`A. Claim Construction
`In this inter partes review, claims are construed using the same claim
`construction standard that would be used to construe the claims in a civil
`action under 35 U.S.C. § 282(b). 37 C.F.R. § 42.100(b) (2020). The claim
`construction standard includes construing claims in accordance with the
`ordinary and customary meaning of such claims as understood by one of
`ordinary skill in the art and the prosecution history pertaining to the patent.
`See id.; Phillips v. AWH Corp., 415 F.3d 1303, 1312–14 (Fed. Cir. 2005) (en
`banc).
`
`“enforcing . . . at a hypervisor layer via
`dynamic updating of routing controls”
`Claim 1 recites “enforcing network security and routing at a
`hypervisor layer via dynamic updating of routing controls.” Ex. 1001,
`15:40–42. Patent Owner argues that in the district court case, Petitioner
`proposes construing this phrase to mean “upon migration, automatically
`changing the routing controls at a hypervisor layer to rout network traffic for
`the virtual machine to the second device.” Prelim. Resp. 15 (citing
`Ex. 2010, 4). Although Patent Owner argues that it does not agree with the
`proposed construction or propose its own construction (id. at 15–16), Patent
`Owner’s arguments regarding why the prior art fails to meet the phrase are
`based on a construction that the phrase requires “dynamic updating of
`routing controls at the hypervisor layer.” Id. at 30–39. We understand
`Petitioner also to construe the phrase to require “dynamic updating of
`routing controls at the hypervisor layer.” Pet. 38; Ex. 1003 ¶¶ 130, 132.
`The parties’ proposed construction is consistent with the Specification of the
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`’209 patent. Ex. 1001, 5:8–16, 5:24–25, 5:59–60, 6:11–15, 8:41–42, 9:39–
`40, 9:58–62, 10:40–42, Fig. 4 step 403. Thus, for purposes of this Decision
`we agree with the parties’ construction that “enforcing network security and
`routing at a hypervisor layer via dynamic updating of routing controls”
`requires “dynamic updating of routing controls at the hypervisor layer.”
`For purposes of this Decision, we need not expressly construe any
`other claim terms. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d
`795, 803 (Fed. Cir. 1999) (holding that “only those terms need be construed
`that are in controversy, and only to the extent necessary to resolve the
`controversy”); see also Nidec Motor Corp. v. Zhongshan Broad Ocean
`Motor Co. Matal, 868 F.3d 1013, 1017 (Fed. Cir. 2017) (citing Vivid Techs.
`in the context of an inter partes review).
`
`B. Principles of Law
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations including: (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of ordinary skill in the art;7 and (4) when in evidence, objective
`
`
`7 Relying on the testimony of Dr. Markus Jakobsson, Petitioner offers an
`assessment as to the level of ordinary skill in the art and the knowledge of a
`person of ordinary skill in the art at the time of the ’209 patent. Pet. 21–25
`(citing Ex. 1003 ¶¶ 51, 56–75). For example, Dr. Jakobsson states that a
`person having ordinary skill in the art “would have had at least a bachelor’s
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`indicia of nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18
`(1966).
`
`C. Asserted Obviousness of Claims 1, 3, and 6 over Dhawan, and Clark
`Petitioner contends claims 1, 3, and 6 are unpatentable under
`35 U.S.C. § 103(a) as obvious over Dhawan and Clark. Pet. 36–45. In
`support of its showing, Petitioner relies upon the declaration of Dr. Markus
`Jakobsson. Id. (citing Ex. 1003).
`
`1. Dhawan
`Dhawan “relates in general to the field of information handling
`systems and, more specifically, to the flexible and secure transfer of packets
`by carrier virtual machines.” Ex. 1005 ¶ 2. Dhawan describes that “virtual
`machine migration is generally implemented on physical servers that share a
`common pool of data storage resources.” Id. ¶ 11. “When a virtual machine
`migrates to other nodes a virtual volume manager, working in concert with
`virtual machine manager, can provide the necessary routing and redirection
`functionality to transport data stored in VSDs [Virtual Storage Devices]
`across SAN and LAN fabrics.” Id. Dhawan recognizes a need, however,
`“for an improved way of securely managing data and processes across
`physical hosts.” Id. ¶ 16.
`
`
`degree in computer science, computer engineering, or an equivalent degree
`and at least three years of work experience in the field of cloud computing,
`virtual machines, computer networks and systems, and/or a similar field.”
`Ex. 1003 ¶ 51. Patent Owner does not propose an alternative assessment.
`See Prelim. Resp. 14. To the extent necessary, and for purposes of this
`Decision, we accept the assessment offered by Petitioner as it is consistent
`with the ’209 patent and the asserted prior art.
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`Figure 1, reproduced below, illustrates an embodiment of an
`information handling system. Id. ¶ 35.
`
`
`Figure 1 shows that information handling system 100 includes virtual
`machine monitor 116 residing in system memory 112 and supporting a guest
`operating system 118. Id. Virtual machine monitor 116 implements carrier
`virtual machine 120, which can interact with application 122 and secure data
`124. Id. Virtual machine carrier manager 142 manages virtual machine
`packets and implements routing and policy management for the virtual
`machines. Id.
`Figure 4, reproduced below, illustrates a TCP/IP network for
`implementing carrier virtual machines. Id. ¶ 41.
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`Figure 4 shows host 302 connected to host 304 through network 128. Id.
`Application 322 on host 302 includes carrier virtual machine 426, which
`contains “virtual machine autorun scripts 428, and a payload 429 that
`includes operating systems 430, other virtual machines 432, applications
`434, and data 436.” Id. ¶ 42. “[C]arrier virtual machine 426 is migrated
`from participating physical host 302 using a multi-layer communications
`protocol stack . . . through network 128 to router 306.” Id. ¶ 43. Thereafter,
`carrier virtual machine 426 completes its migration to host 304 as virtual
`machine 438, and “carrier virtual machine 426 on participating physical
`host ‘1’ 302 can be destroyed (if required by security policies).” Id.
`Figure 5a, reproduced below, illustrates a carrier virtual machine. Id.
`
`¶ 46.
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`Figure 5a shows carrier virtual machine 120 associated with VM packet
`management 504 and predetermined routing table 506. Id. VM packet
`management 504 includes “security mechanisms such as access control lists
`(ACLs), usage policies, directory roles, etc.” Id. ¶ 47. “[P]redetermined
`routing table 506 manages originating and terminating network address” and
`“can translate between physical network addresses and virtual network
`addresses.” Id. ¶ 48. Further, “virtual machine monitor 116 can interact
`with routing and policy wrapper 508 to access information contained by
`predetermined routing table 506 and/or VM packet management 504 to
`facilitate the secure transfer of data across a network environment.” Id. ¶ 50.
`
`2. Clark
`Clark relates to “[m]igrating operating system instances across distinct
`physical hosts.” Ex. 1006, 1. In particular, Clark is “concerned with the
`migration of live, in-service OS instances on fast ne[t]works with only tens
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`of milliseconds of downtime.” Id. at 2. Clark describes a process that
`begins “with an active VM on physical host A.” Id. at 4. “A request is
`issued to migrate an OS from host A to host B,” and “all pages are
`transferred from A to B.” Id. The OS is suspended at host A, and its
`network traffic is redirected to host B. Id. After commitment of the
`migration transaction, “host A may now discard the original VM, and host B
`becomes the primary host.” Id. “Post-migration code runs to reattach
`device drivers to the new machine and advertise moved IP addresses.” Id.
`
`3. Discussion
`Claim 1 recites “enforcing network security and routing at a
`hypervisor layer via dynamic updating of routing controls initiated by a
`migration of said virtual machine from a first device to a second device.”
`Ex. 1001, 15:40–43. Petitioner contends “Dhawan discloses this limitation
`or at least renders it obvious when combined with Clark.” Pet. 36. First,
`Petitioner argues that “Dhawan teaches a migration of a virtual machine
`from a first device to a second device.” Id. at 36–38 (citing Ex. 1005 ¶¶ 17,
`20, 43).
`Second, Petitioner argues that the virtual machine migration “initiates
`dynamic updating of routing controls,” because “the routing controls that
`once directed traffic to the virtual machine at the first physical host must be
`updated to route that traffic to the virtual machine’s new physical location
`on the second host.” Id. at 37 (citing Ex. 1003 ¶ 135; Ex. 1005 ¶ 20).
`Petitioner further argues that “routing table 506—which ‘manages
`originating and terminating network addresses’—maps between the virtual
`network addresses and their new corresponding physical network
`addresses.” Id. at 37–38 (citing Ex. 1005 ¶ 48). Petitioner contends that
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`Dhawan’s virtual machine monitor (hypervisor) “interact[s]
`with routing and policy wrapper 508 to access information
`contained by predetermined routing table 506 . . . to facilitate
`the secure transfer of data across a network environment.” Id.,
`[0050] (i.e., dynamically updating routing controls at the
`hypervisor layer).
`Id. at 38. As explained above, we agree with the parties’ construction that
`“enforcing network security and routing at a hypervisor layer via dynamic
`updating of routing controls” requires “updating of routing controls at the
`hypervisor layer.” Patent Owner argues, and we agree, that Petitioner fails
`to show how “‘interact[ing] with’ or ‘accessing’ information is []
`‘updating,’ . . . of routing controls’ ‘at a hypervisor layer.’” Prelim.
`Resp. 34. In particular, Dr. Jakobsson testifies, in a conclusory manner, that
`Dhawan’s “hypervisor [virtual machine monitor] updates the migrated
`virtual machine’s routing controls.” Ex. 1003 ¶ 132; id. ¶ 130.
`Dr. Jakobsson further testifies, however, that “the virtual machine migration
`initiates updating routing table 506,” not updating of routing controls at the
`hypervisor layer (virtual machine monitor). Id. ¶ 135 (citing Ex. 1003 ¶ 48);
`id. ¶ 136 (“a POSITA would have understood that when a virtual machine’s
`physical address changes due to a physical migration, the routing table must
`be updated to reflect that change if the migrated virtual machine is to
`continue receiving network traffic.”). Petitioner fails to explain sufficiently
`how the virtual machine monitor (“hypervisor”) interacting with the routing
`and policy wrapper 508 to access information contained by routing table 506
`results in “dynamic updating of routing controls at the hypervisor layer” as
`asserted. Pet. 38; Ex. 1003 ¶¶ 135–136.
`Petitioner argues that to the extent Dhawan does not teach
`dynamically updating the routing controls, Clark teaches this limitation. Pet.
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`38. Specifically, Petitioner contends Clark teaches a virtual machine
`migration that a person of ordinary skill in the art would have understood as
`initiating an advertisement that “causes the routing controls to dynamically
`update.” Id. at 38–39 (citing Ex. 1003 ¶¶ 138–139; Ex. 1006, 4). Petitioner
`further contends that using ARP (Address Resolution Protocol) to advertise
`reconfigures peers to send packets to the new physical address. Id. at 39
`(Ex. 1006, 4). Petitioner asserts that the reconfigurations are dynamic
`because they occur continuously with each advertisement consistent with a
`routing protocol. Id. Petitioner then contends that “Clark’s hypervisor
`layer, i.e., virtual machine monitor, facilitates the dynamic routing updates.”
`Id. at 39 (citing Ex. 1006, 2, 7). Petitioner contends a person of ordinary
`skill in the art would have modified Dhawan’s method in view of Clark “to
`dynamically update routing controls by advertising the virtual machine
`migration” to “ensure[] that the virtual machine’s data traffic is routed to the
`correct location post-migration.” Id. at 39–40 (citing Ex. 1003 ¶¶ 141–142).
`Although Petitioner points out that Clark’s virtual machine monitor
`“facilitates the dynamic routing updates,” it appears to us that Petitioner is
`not relying on Clark’s virtual machine monitor to meet the claimed
`hypervisor layer, but rather is proposing to include using Clark’s ARP.
`Id. at 38–40; Ex. 1003 ¶¶ 141–144. In any event, to the extent Petitioner is
`relying on Clark’s virtual machine monitor as the claimed hypervisor, we
`agree with Patent Owner (Prelim. Resp. 37–38) that Petitioner has failed to
`show that Clark’s virtual machine monitor (hypervisor) facilitating dynamic
`routing updates is the same as updating routing controls at the hypervisor
`layer.
`
`Each of claims 3 and 6 depends directly from independent claim 1.
`For claims 3 and 6, Petitioner does not present arguments or evidence that
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`remedy the deficiencies in Petitioner’s contentions identified above with
`regard to claim 1. Pet. 41–45. For all of the above reasons, we are not
`persuaded that Petitioner has established a reasonable likelihood that
`Petitioner would prevail in its challenge that claims 1, 3, and 6 are
`unpatentable under 35 U.S.C. § 103(a) as obvious over Dhawan and Clark.8
`
`D. Asserted Obviousness of Claims 2, 4, and 5 over Dhawan, Clark, and
`Warfield
`Petitioner contends claims 2, 4, and 5 are unpatentable under
`35 U.S.C. § 103(a) as obvious over Dhawan, Clark, and Warfield. Pet. 45–
`55.
`
`1. Warfield
`Warfield relates to “virtualizing network resources so that they may
`be shared across a set of isolated virtual machines (VMs).” Ex. 1007, 2. In
`particular, Warfield “describes the design approach that has been taken for
`the first public release of the XenoServers hypervisor, Xen.” Id. at 4.
`“Individual virtual machines may have one or more virtual interfaces, each
`of which appears as a point-to-point Ethernet link to an IP router.” Id.
`Xen’s network system “consists of a virtual firewall router, which is a rule-
`based packet classification/forwarding engine (based on the Linux
`netfilter/IPTables code) responsible for simple, fast packet handling.” Id.
`Warfield’s described “approach presents a model in which VMs appear as
`isolated as they would be were they separate physical machines on a shared
`switching element.” Id. at 5.
`
`
`8 Because we find Petitioner has not shown a reasonable likelihood of
`prevailing on this challenge for the reasons discussed above, we do not reach
`Patent Owner’s remaining arguments.
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`2. Discussion
`Each of claims 2, 4, and 5 depends either directly or indirectly from
`independent claim 1. For claims 2, 4, and 5, Petitioner does not present
`arguments or evidence that remedy the deficiencies in Petitioner’s
`contentions identified above with regard to claim 1. Pet. 45–55.
`Accordingly, for the same reasons discussed above, we are not persuaded
`that Petitioner has established a reasonable likelihood that Petitioner would
`prevail in its challenge that claims 2, 4, and 5 are unpatentable under
`35 U.S.C. § 103(a) as obvious over Dhawan, Clark, and Warfield.
`
`E. Asserted Obviousness of Claims 7 and 8 over Dhawan, Clark, Chandika,
`and the Knowledge of a Person of Ordinary Skill in the Art
`Petitioner contends claims 7 and 8 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over Dhawan, Clark, and Chandika. Pet. 55–61.
`
`1. Chandika
`Chandika describes “systems and methods for interconnecting a
`restricted device and a network,” and in particular, “a device for accessing
`the network [that] has various input ports, with each port having an
`associated parameter whose value is either restricted or unrestricted.”
`Ex. 1008, 1:55–60. In an embodiment, an access device has packet detectors
`220 that include content addressable memory (CAM) 222. Id. at 4:33–36.
`The device can extract fields from the header of each received packet for
`packet detectors 220 to examine. Id. at 4:37–41. If extracted fields are
`found via a lookup in CAM 222, “then the packet matches a restricted
`pattern and thus the packet is restricted.” Id. at 4:42–45. CAM 222 can be
`“configured to hold access parameters based on access control lists (ACLs),”
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`which “allow dynamic configuration of the set of restricted patterns that are
`to be detected.” Id. at 4:51–55.
`
`2. Discussion
`Each of claims 7 and 8 depends either directly or indirectly from
`independent claim 1. For claims 7 and 8, Petitioner does not present
`arguments or evidence that remedy the deficiencies in Petitioner’s
`contentions identified above with regard to claim 1. Pet. 55–61.
`Accordingly, for the same reasons discussed above, we are not persuaded
`that Petitioner has established a reasonable likelihood that Petitioner would
`prevail in its challenge that claims 7 and 8 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over Dhawan, Clark, and Chandika.
`
`III. CONCLUSION
`For the foregoing reasons, we determine that Petitioner has not shown
`a reasonable likelihood that it would prevail in showing that any of the
`challenged claims of the ’209 patent are unpatentable.
`
`IV. ORDER
`
`Accordingly, it is:
`ORDERED that the Petition is denied as to all challenged claims, and
`no trial is instituted.
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`FOR PETITIONER:
`
`Donald Daybell
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`D2bptabdocket@orrick.com
`
`
`FOR PATENT OWNER:
`
`Lauren Robinson
`Brenda Entzminger
`Bunsow De Mory LLP
`lrobinson@bdiplaw.com
`bentzminger@bdiplaw.com
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