UNITED STATES PATENT AND TRADEMARK OFFICE
`
`___________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________
`
`CLOUDFLARE, INC. and SPLUNK INC.,
`Petitioners
`
`v.
`
`SABLE NETWORKS, INC.
`Patent Owner
`
`___________
`
`IPR2021-00909
`Patent No. 8,243,593 B2
`___________
`
`DECLARATION OF DANIEL C. CALLAWAY IN SUPPORT OF
`
`PETITIONERS’ REPLY BRIEF
`
`
`
`Cloudflare – Exhibit 1097, page 1
`
`

`

`I, Daniel C. Callaway, make the following declaration in support of the
`
`petition by Cloudflare, Inc. for inter partes review of U.S. Patent No. 8,243,593:
`
`1.
`
`I am an attorney with the law firm of Farella Braun + Martel LLP,
`
`counsel for Cloudflare, Inc. Unless otherwise stated, the facts stated in this
`
`declaration are based on my personal knowledge.
`
`2.
`
`I browsed to the Internet Archive’s 2002 calendar page reflecting the
`
`website packeteer.com, at
`
`https://web.archive.org/web/20020801000000*/packeteer.com, as shown below:
`
`
`
`Cloudflare – Exhibit 1097, page 2
`
`

`

`x[ESE
`[vce
`3 C oat web.archive.org/web/20020801000000"/packeteer.com
`
`
`
`
`
`
`EE
`
`INTERNET ARCHIVE
`
`DONATE Waybgenmacnine
`
`Explore more than 681 billion web pages saved over time
`
`packeteer.com
`
`Results: 50 100 500
`
`- SiteMap - URLs
`C= . Collections - Changes - Summary
`Saved 821 times between April 6, 1997 and January 1, 2018.
`
`«2004=2005 foalle aeeeeeee
`
`2001
`2006
`iv
`2010
`«2077
`2012,
`201320142015
`2016
`2017
`2018
`
`4
`b
`
`999=2000 Ew 2003
`
`JAN
`
`FEB
`
`MAR
`
`APR
`
`2
`1
`4
`3
`3
`8
`7
`6
`5
`11
`aL)
`16
`15
`14
`13
`12
`18
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`MD
`po
`2% 7
`4 36
`ca
`
`4
`3
`2
`1
`2
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`wm
`9
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`a
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`¥
`6
`5
`18
`17
`16
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`15
`14
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`12
`21 23 4 3&6
`9 2 21 2 2
`MU
`FT
`62 2 3 2 w
`
`6
`5
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`2
`so 2
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`5
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`9
`8
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`6
`19
`18
`17
`16
`15
`14
`13
`0 2 2 23 8 3 2
`7
`82 2 WH
`
`MAY
`
`1
`8
`5
`
`2
`
`z
`9
`1%
`an
`DM
`
`4
`1
`18
`Ss
`
`3
`0
`1
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`
`6
`5
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`12
`9 2 4
`6
`6
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`4
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`18
`
`
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`3
`0
`1
`
`4
`
`3
`10
`17
`24
`
`z
`9
`6
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`Ei)
`
`SEP
`6
`5
`4
`6
`14
`#13
`12
`1
`32
`8 ® 2
`8
`82 2 7 ya
`a7
`
`3
`1
`0
`9
`&
`TF
`6
`56
`2 3 84
`» »
`
`4
`1
`6
`25
`
`JUN
`
`5
`#12
`9
`26
`
`oct
`
`6
`13
`2
`
`1
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`(15
`«14
`2 2
`8
`29
`
`1
`5
`615
`4
`@ =z
`3
`8
`
`9
`(6
`3
`WM
`
`4
`1
`1
`Ss
`
`5
`#1
`619)
`5
`
`6
`13
`«(20
`2
`
`JUL
`
`0
`OT
`24
`OH
`
`Nov
`
`1
`5§
`4
`3
`1
`9
`8
`7
`6
`5
`4
`3
`0 Hh
`8
`8
`7
`#616
`#1
`4
`3
`=
`18
`19 o 12
`6
`6
`4
`7H PB M BH
`7T 8b wea Be
`23 2St
`436 8 2 BD WD
`
`AUG
`
`2
`1
`10
`9
`8
`6
`5
`06120«138 4
`#9
`#2
`21
`2
`2324
`2
`sm Mw
`
`4
`11
`6
`5
`
`DEC
`4
`3
`1
`1
`0
`8
`6’
`8
`7T
`6
`15
`234 SB
`a ow
`
`6
`5
`«14
`#13
`12
`#8 2 21
`6B WF
`
`Note
`This calendar view maps the numberof times packeteer.comwascrawled by
`the Wayback Machine, not how manytimesthe site was actually updated. More info in the
`FAQ.
`
`FAQ | Contact Us | Terms of Service (Dec 31, 2014)
`
` de Open Library&arcl
`
` ‘Your nse of the Wayback Machineis subject to the Int
`
`
`
`Cloudflare – Exhibit 1097, page 3
`Cloudflare — Exhibit 1097, page 3
`
`€
`

`

`3.
`
`I clicked on the version of the Packeteer website that was archived on
`
`November 27, 2002, which led to the URL
`
`https://web.archive.org/web/20021127183239/http://www.packeteer.com/ , as
`
`shown below:
`
`
`
`Cloudflare – Exhibit 1097, page 4
`
`

`

`4.
`
`I clicked on the “Products” link along the top menu bar, which led to
`
`the URL
`
`https://web.archive.org/web/20021204194156/http://www.packeteer.com/products/index.
`
`cfm , as shown below:
`
`
`
`Cloudflare – Exhibit 1097, page 5
`
`

`

`5.
`
`I clicked on the link for “PacketShaper,” which pointed to the URL
`
`https://web.archive.org/web/20021204194841if_/http://www.packeteer.com/produ
`
`cts/packetshaper/ , as shown below:
`
`
`
`Cloudflare – Exhibit 1097, page 6
`
`

`

`6.
`
`I clicked on the link for “Product Literature,” which led to the URL
`
`https://web.archive.org/web/20021219180443if_/http://www.packeteer.com/produ
`
`cts/packetshaper/literature.cfm , as shown below:
`
`
`
`Cloudflare – Exhibit 1097, page 7
`
`

`

`7.
`
`I clicked on the link for “PacketShaper Technical Product Overview:
`
`Four Steps to Application Performance,” which led to the URL
`
`https://web.archive.org/web/20030317051910/http://packeteer.com/PDF_files/4ste
`
`ps.pdf , as shown below:
`
`
`
`Cloudflare – Exhibit 1097, page 8
`
`

`

`
`
` http://packeteer.com/PDF_files/4steps. pdf
`FEE
`APR
`<4
`10 captures
`
`
`
`17 Mar 2003-11 Jun 2000 W | Lil |_| : a
`
`
`
`Technical Product Overview
`
`Four Steps to Application Performance
`Acrossthe Network
`
`Sp
`
`With Packeteer’s PacketShaper®
`
`September 2002
`
`4
`
`©)
`©
`
`translated intoto another language withoutthe express written consent of Packeteer, Inc.
`
`Packeteer, Inc.
`
`Cupertino, CA 95014
`408.873.4400
`
`info@packeteer.com
`www.packeteer.com
`
`PACKETEER"
`
`Company and product names are trademarks or registered trademarksof their respective companies.
`Inc. All rights reserved. No part of this publication may be reproduced, photocopied, stored on a retrieval system, transmitted, or
`
`
`
`Cloudflare – Exhibit 1097, page 9
`Cloudflare — Exhibit 1097, page 9
`
`

`

`8.
`
`Using the Internet Archive, I performed similar steps to those above to
`
`browse from the Packeteer website (www.packeteer.com) to the Four-Steps
`
`Whitepaper (the version labeled “September 2002” on the cover, as shown above)
`
`using the archived versions of the Packeteer website from the following dates:
`
` September 25, 2002
`
` September 29, 2002
`
` November 20, 2002
`
` November 27, 2002
`
` November 29, 2002
`
` January 22, 2003
`
` January 24, 2003
`
` February 16, 2003
`
`9.
`
`For archival dates later than March 17, 2003, the PacketShaper page
`
`on the Packeteer website included a later version of the whitepaper. I browsed to
`
`the Internet Archive’s April 25, 2003 capture of the website packeteer.com, at
`
`https://web.archive.org/web/20030425092959/http://www.packeteer.com/ , as
`
`shown below:
`
` Cloudflare – Exhibit 1097, page 10
`
`

`

`
`
`
`
`
`http:/Avww.packeteer.com/
`
`821 captures
`Apr 1097 - 1 Jan 2018
`
`PACKETEER
`
`baba
`
`a a MeemtEk BT PARTNERS
`
`INVESTORS
`
`CAREERS Pe
`
`Shape your network
`Align application performance and network resources
`with your business priorities using Packeteer’s
`erCMMUuaeLCi]
`
`
`Introducing:
`PacketShaper Xpress
`The New Application Traffic Acceleration Solution from Packeteer
`
`
`
`Subscriptions (>)
`Free white papers,
`web seminars
`and more!
`
`fasta ome re ety
`
`P
`
`Website
`benchmark test (+)
`
`Intro to PacketShaper Xpress (>)
`FREE White Paper (>)
`Sign-upfor the Web Seminar (>)
`
`PACKET TRENDS:
`Put Your Applications in the Fast Lane
`
`“Network managers consistently cite poor application performance
`and network congestion as pressing issues, however determining
`the cause of the problems or what to do when they are discovered
`is a challenge,” said Lawrence Orans, senior analyst at Gartner.
`"Different problems require different solutions, and fiscal and
`practical issues dictate that customers employ effective solutions
`that yield a quick return on investment. Traffic management and
`compression are complementary technologies that can result in
`bandwidth efficiency and cost savings.” -- Lawrence Orans, senior
`analyst at Gartner,
`For more information on application traffic acceleration, click here
`
`rm
`
`"with network bandwidth consumption growing due to increasing
`traffic and user volume as well as transaction sizes, network
`managers are seeking ways to move beyond simple monitoring to
`more proactively take control of application performance.” -- Corey
`Ferengul, Vice President with Meta Group.
`For more information on application traffic monitoring, click here
`
`
`
`ussia3
`
`Polycom and Packeteer
`Partner to Provide Improved
`Video Conferencing
`Performance Over IP
`Networks
`
`Packeteer, Inc. Announces
`Record First Quarter
`Financial Results
`
`Packeteer Appoints Head of
`Business Development
`
`Packeteer, Inc. to Announce
`First Quarter 2003
`
`Packeteer®, Inc. Helps
`AMES Control Internet
`Bandwidth and Reduce
`Costs for 26 Sites
`
`[more Packeteer News]
`
`
`
`
`
`Home | What's New | Products | Solutions | Support | Partners | Investors | Careers | Company
`Terms of Use | Privacy Policy
`Copyright ©1996-2001 Packeteer, Inc. All rights reserved.
`
` Cloudflare – Exhibit 1097, page 11
`Cloudflare — Exhibit 1097, page 11
`
`

`

`10.
`
`I then clicked on the “Products” link along the top menu bar, which
`
`led to the URL
`
`https://web.archive.org/web/20030412191928/http://www.packeteer.com/products/
`
`, as shown below:
`
` Cloudflare – Exhibit 1097, page 12
`
`

`

`11.
`
`I then clicked on the “PacketShaper” link along the top menu bar,
`
`which led to the URL
`
`https://web.archive.org/web/20030412193008/http://www.packeteer.com/products/
`
`packetshaper/ , as shown below:
`
` Cloudflare – Exhibit 1097, page 13
`
`

`

`12.
`
`I then clicked on the “Four Steps to Application Performance” link at
`
`the lower left, which led to the URL
`
`https://web.archive.org/web/20030413003755/http://www.packeteer.com/products/
`
`packetshaper/packetshaper_steps.cfm , containing an “Overview of PacketShaper’s
`
`‘4 Steps’ Approach,” as shown below (excerpted):
`
` Cloudflare – Exhibit 1097, page 14
`
`

`

`13.
`
`I then clicked on the “Analyzing Network Performance” link at the
`
`right under the heading “Analyze,” which led to the URL
`
`https://web.archive.org/web/20030413003755/http://www.packeteer.com/resources
`
`/prod-sol/NetworkPerformance.pdf , a PDF paper entitled “How to Measure the
`
`Impact of Network Performance on Your Business,” that is as attached as Exhibit
`
`1099.
`
`14.
`
`The paper “How to Measure the Impact of Network Performance on
`
`Your Business” contains a substantially identical passage to the one that Petitioner
`
`relies on at page 66 of the Petition. The two passages are as follows:
`
` “Counts and percentages of retransmitted, received, tossed, dropped, and
`
`good TCP packets.” EX1006 at 18, under the heading “Raw Metrics.”
`
` “Counts and percentages of retransmitted, received, tossed, dropped,
`
`expired, and good bytes or packets”. EX1099 at 10, under the heading “Raw
`
`Metrics.”
`
`15.
`
`Exhibits 1088 and 1089 both refer to the Four-Steps Whitepaper in
`
`their “Background of the Invention” section. EX1088 at 3:33-36; EX1089 at 3:21-
`
`24. Exhibits 1088 and 1089 refer to the Four-Steps Whitepaper as “retrieved from
`
`the Internet http://www.packeteer.de and accessed Oct. 17, 2002.” Id.
`
`16. Using the Internet Archive, I accessed the website www.packeteer.de
`
`as archived on September 29, 2002. It appears as shown below:
`
` Cloudflare – Exhibit 1097, page 15
`
`

`

`17.
`
`The capture of the website www.packeteer.de includes a link on the
`
`left-hand side titled “Packeteer.Com” that points to the website
`
`www.packeteer.com, which is discussed above starting at Paragraph 2. From the
`
`website www.packeteer.com, one could navigate to the September 2002 version of
`
`the Four-Steps Whitepaper (EX1006).
`
`18. On April 12, 2021, prior to filing the Petition in this proceeding,
`
`Petitioner’s counsel sent the email identified as EX1100 to the Internet Archive to
`
`confirm that Elizabeth Rosenberg was still working at the Internet Archive and that
`
` Cloudflare – Exhibit 1097, page 16
`
`

`

`there were no concerns with the accuracy of her affidavit, which was filed with the
`
`petition as EX1006 (original version). An Internet Archive representative
`
`responded with the message identified as EX1101, confirming that Ms. Rosenberg
`
`was “still a valued employee with the Internet Archive and we have no concerns
`
`about the accuracy of the affidavit provided after review.”
`
`19. On December 2, 2021, Cloudflare’s counsel sent to Patent Owner’s
`
`counsel the email message identified as EX1102 to confirm that Sections VII.A.8
`
`(addressing claims 17 and 37) and VII.A.9 (addressing claims 18 and 38) should
`
`have been located in Section VII.B (i.e., Ground 2). We did not receive a response
`
`to the email.
`
`20.
`
`The parties scheduled the deposition of Mr. Butler for February 25,
`
`2022, beginning at 9:00 a.m. Pacific. On February 22, 2022, we received the email
`
`identified as EX1103 in which Patent Owner’s counsel unilaterally cancelled the
`
`deposition.
`
`I declare under penalty of perjury under the laws of the United States that
`
`the foregoing is true and correct and that this declaration was executed on June 6,
`
`2022, in San Francisco, California.
`
`/s/ Daniel C. Callaway
`Daniel C. Callaway
`Registration No. 74,267
`
` Cloudflare – Exhibit 1097, page 17
`
`