Case IPR2021-00909
`U.S. Pat. No. 8,243,593
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`CLOUDFLARE, INC. and
`SPLUNK INC.,
`Petitioner,
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`v.
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`SABLE NETWORKS, INC.,
`Patent Owner
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`____________
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`
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`Case IPR2021-009091
`Patent 8,243,593
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`____________
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`PATENT OWNER’S SUR-REPLY
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`1 Splunk, Inc., which filed a petition in IPR2022-00228, has been joined as a
`petitioner in this proceeding.
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`U.S. Pat. No. 8,243,593
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`CLOUDFLARE, INC. and
`SPLUNK INC.,
`Petitioner,
`
`v.
`
`SABLE NETWORKS, INC.,
`Patent Owner
`
`____________
`
`
`
`Case IPR2021-009091
`Patent 8,243,593
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`
`
`____________
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`PATENT OWNER’S SUR-REPLY
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`
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`1 Splunk, Inc., which filed a petition in IPR2022-00228, has been joined as a
`petitioner in this proceeding.
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`TABLE OF CONTENTS
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`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
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`Page
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`I.
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`INTRODUCTION ............................................................................................... 1
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`II. PETITIONERS HAVE NOT SHOWN BY A PREPONDERANCE OF THE
`EVIDENCE THAT THE CLAIMS CHALLENGED IN GROUND 1 ARE
`OBVIOUS OVER YUNG (CLAIMS 17, 18, 37, 38, GROUND 1). .................. 3
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`III. PETITIONERS FAIL TO SHOW BY A PREPONDERANCE OF THE
`EVIDENCE THAT YUNG IN VIEW OF COPELAND DISCLOSES OR
`RENDERS OBVIOUS THE CALCULATION OF A BADNESS FACTOR
`AS CLAIMED (CLAIMS 9-13, 19-24, 29-33, 39-44, GROUND 2). ..............15
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`A. Copeland Does Not Disclose The Claimed “Badness Factor.” ................15
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`B. The Claims Require Calculating A “Badness Factor” For Each Flow. ...17
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`C. The Petition Does Not Sufficiently Establish A Reason For The
`POSITA To Have Combined Yung And Copeland As Proposed. ...........20
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`IV. CONCLUSION .................................................................................................24
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`TABLE OF AUTHORITIES
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`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
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`Page
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`COURT DECISIONS
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`Icon Health & Fitness, Inc. v. Strava, Inc.,
`849 F.3d 1034 (Fed. Cir. 2017) .............................................................................. 8
`
`Immunex Corp. v. Sanofi-Aventis U.S. LLC,
`977 F.3d 1212 (Fed. Cir. 2020) ............................................................................18
`
`In re Magnum Oil Tools Int’l, Ltd.,
`829 F.3d 1364 (Fed. Cir. 2016) ............................................................................15
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`AGENCY DECISIONS
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`Amperex Tech. v. LG Chem.,
`IPR2018-00783, Paper 8 (PTAB Sept. 19, 2018) ................................................12
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`Axonics v. Medtronic,
`IPR2020-00713, Paper 42 (PTAB Sept. 22, 2021) ................................................ 9
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`IBM Corp. v. Rigetti & Co., Inc.,
`IPR2020-00494, Paper 13 (Aug. 11, 2020) ........................................................... 4
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`IBM v. Trusted Knight,
`IPR2020-00323, Paper 37 (June 30, 2021) ................................................... 10, 11
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`Kinetic Techs., Inc. v. Skyworks Sols., Inc.,
`IPR2014-00529, Paper 8 (Sept. 23, 2014) ...........................................................16
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`Netapp v. KOM Software,
`IPR2019-00606, Paper 37 (PTAB Sept. 23, 2020) ..............................................11
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`Nippon Suisan Kaisha v. Pronova Biopharma Norge,
`PGR2017-00033, Paper 37 (PTAB Jan. 16, 2019) ..............................................12
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`ii
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`
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`Unified Patents Inc. v. Uniloc 2017 LLC,
`IPR2019-00480, Paper 10 (Aug. 16, 2019) .........................................................16
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`EXHIBIT LIST
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`2001
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`2002
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`2003
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`2004
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`2005
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`Josh McHugh, “The n-Dimensional SuperSwitch,” WIRED (May 1,
`2001, 12:00 am) (available at https://www.wired.com/2001/05/caspian/
`(last visited Aug. 16, 2021))
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` Email from Jun Zheng, U.S. District Court for Western District of
`Texas staff, to counsel for parties, with Subject “Sable Networks, Inc.,
`et al. v. Riverbed Technology, Inc., No. 6:21‐cv‐00175‐ADA and
`Sable Networks, Inc., et al. v. Cloudflare, Inc., No. 6:21‐cv‐00261‐
`ADA – Request for Telephone Conference” (Aug. 20, 2021, 9:04 am)
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`Scheduling Order, Dkt. 21, Sable Networks, Inc., et al. v. Cloudflare,
`Inc., No. 6:21‐cv‐00261‐ADA (June 24, 2021)
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`Declaration of Daniel P. Hipskind in Support of Motion for Pro Hac
`Vice Admission
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`Declaration of Erin McCracken in Support of Motion for Pro Hac Vice
`Admission
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`2006
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`March 4, 2022 Disclaimer in U.S. Patent No. 8,243,593 Under 37
`C.F.R. §1.321(a)
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`2007
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`Deposition Transcript of Kevin Jeffay, Ph.D. [Jeffay Transcript]
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`2008
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`Declaration of Erin McCracken [McCracken Declaration]
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`2009
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`Cloudflare, Inc. Opening Claim Construction Brief, Dkt. 29, Sable
`Networks, Inc., et al. v. Cloudflare, Inc., No. 6:21‐cv‐00261‐ADA
`(Nov. 12, 2021) [Cloudflare Opening Claim Construction Brief]
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`I.
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`INTRODUCTION
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`For at least the reasons that the Response to the Petition demonstrated, the
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`grounds raised in the Petition should be rejected because Petitioners fail to
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`demonstrate by a preponderance of the evidence that the challenged claims2 are
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`unpatentable. Petitioners’ Reply to the Response fails to disprove those reasons,
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`and only confirms that the Board should find all challenged claims not
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`unpatentable.
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`As to ground 1, alleged obvious over Yung alone, the Petition fails to show
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`that claims 17, 18, 37, and 38 of the ’593 patent are taught or suggested by Yung.
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`Petitioners’ only argument in their Reply to Patent Owner’s Response (“Reply”) is
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`that the Petition contains a typographical error the Board should remedy. The
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`problem for Petitioners is that there is zero evidence of an alleged typographical
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`error. Instead, the record shows the Petition simply did not challenge claims 17,
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`2 As explained in the Patent Owner Response (or “POR”), to streamline this
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`proceeding, Patent Owner has filed a statutory disclaimer of originally challenged
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`claims 1, 2, 4-8, 14-16, 25-28, and 34-36. POR, 11-12. Claims 3, 9-13, 17-24, 29-
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`33, and 37-44 remain at trial, challenged by one or more of grounds 1, 2 or 3.
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`18, 37, and 38 under Yung in view of Copeland. The argument that the complete
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`failure to do so is based on a typographical error is unsupported and insupportable.
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`As to ground 2, alleged obviousness over Yung and Copeland, Petitioners
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`fail to show by a preponderance of evidence that Copeland and Yung teach the
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`calculation of a “badness factor” for each flow as recited in claims 9–13, 19–24,
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`29–33, and 39–44. Petitioners’ primary response is to argue (wrongly and without
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`support) that claims 9 and 29 do not require calculating the claimed “badness
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`factor” for each flow, but they clearly do. Alternatively, Petitioners argue based on
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`one mischaracterized sentence in Copeland that Copeland’s “concern index” is
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`calculated for each flow, but Petitioners’ assertion that this single sentence in
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`Copeland is a death sentence for the claims does not withstand scrutiny either.
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`Instead, that sentence only confirms that Copeland’s “concern index” is only
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`calculated for a suspicious flow, not each flow. Petitioners also fail to establish the
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`POSITA would have been motivated to combine Yung and Copeland to meet the
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`claims challenged by ground 2.
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`For at least these and other reasons provided herein and in the Patent Owner
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`Response, Patent Owner respectfully requests that the Board deny the Petition and
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`confirm the patentability of the claims.
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`2
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`II.
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`PETITIONERS HAVE NOT SHOWN BY A PREPONDERANCE OF
`THE EVIDENCE THAT THE CLAIMS CHALLENGED IN GROUND
`1 ARE OBVIOUS OVER YUNG (CLAIMS 17, 18, 37, 38, GROUND 1).
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`It is undisputed that Yung does not teach or suggest all limitations of
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`dependent claims 17, 18, 37, or 38 of the ’593 patent. The Board already
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`concluded in the Institution Decision that “Petitioner has not demonstrated a
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`reasonable likelihood it would prevail in establishing the unpatentability of any of
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`dependent claims 17, 18, 37, or 38 as obvious over Yung alone.”3 Institution
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`Decision, 38 (citing Pet., 1 (table of grounds) and 42-43 (addressing these
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`independent claims). Because Yung is the only basis for ground 1 of the Petition,
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`Petitioners have failed to carry their burden of proving by a preponderance of the
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`evidence that dependent claims 17, 18, 37, and 38 are obvious in view of Yung.
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`Ground 1 of the Petition thus fails as to dependent claims 17, 18, 37, and 38.
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`In the Reply, Petitioners argue they made a “typographical error in the
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`petition, which inadvertently included the arguments addressing dependent claims
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`17, 18, 37, and 38 under Ground 1 (Yung alone) rather than Ground 2 (Yung and
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`Copeland).” Reply, 26. There is no factual or legal support for Petitioners’
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`3 As explained in the Response, with respect to ground 1, the challenged
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`claims other than claims 17, 18, 37, and 38 have been statutorily disclaimed.
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`argument. This counterfactual assertion, based on a non-existent typographical
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`error, was suggested as a possibility by the Board in the Institution Decision, and
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`seized upon by Petitioners in the Reply. However, facts matter. While the Board
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`is certainly empowered to suggest that parties may wish to present evidence as to
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`whether particular facts exist when those facts would be relevant if they do exist,
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`neither the Board nor the parties can manufacture facts that do not exist, or find
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`that they exist when there is no evidence that they do. In other words, the Board
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`could wonder aloud whether the Petitioner made a typographical error, but that is
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`not evidence that there was, in fact, a typographical error, and the Board cannot
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`find that there was such an error unless Petitioners shoulder their burden of proving
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`that such an error occurred. Petitioners’ self-serving assertion that the error did
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`occur, while failing to present any evidence that it did, is the equivalent of telling a
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`teacher that one’s homework was not completed on time because it was eaten by
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`one’s dog, without presenting evidence of a completed assignment, a paper scrap,
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`or a dog. And that is all the more true where, as here, the petitioners literally
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`copied their homework from someone else. Because the Board cannot “remedy
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`deficiencies in Petitions that fall short,” this argument must fail at trial. See IBM
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`Corp. v. Rigetti & Co., Inc., IPR2020-00494, Paper 13, 34 (Aug. 11, 2020)
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`(decision denying institution of inter partes review and explaining “our role is not
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`to remedy the deficiencies in the Petition that fall short”) (citation omitted).
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`To start, there is no evidence that the failure to challenge dependent claims
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`17, 18, 37, and 38 in ground 2 of the Petition based on the combination of Yung
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`and Copeland was a typographical error. On October 2, 2020, Palo Alto Networks,
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`Inc., Dell Technologies Inc., VMware, Inc., Juniper Networks, Inc., Hewlett
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`Packard Enterprise Company, and Aruba Networks, Inc. filed a Petition for Inter
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`Partes Review of the ’593 patent. See Palo Alto Networks et al. v. Sable Networks,
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`Inc., IPR2020-01712, Paper 6 (filed Oct. 2, 2020). These sophisticated technology
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`companies were represented by sophisticated patent counsel.
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`Approximately seven months later, Cloudflare and SonicWall Inc. (no
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`longer a party to this proceeding) filed the instant Petition. These sophisticated
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`technology companies, too, were represented by sophisticated and experienced
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`patent counsel too. What is more, Cloudflare and SonicWall did not even start
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`from scratch to formulate their own grounds or write their own petitions. Rather,
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`they largely copied—verbatim—the arguments advanced by the prior petition,
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`filed by the prior sophisticated technology company petitioners.4 As relevant here,
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`4 Palo Alto Networks et al. v. Sable Networks, Inc., IPR2020-01712, was
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`terminated on February 11, 2021 pursuant to a Joint Motion of All Parties to
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`Terminate Pursuant to 35 U.S.C. § 317 prior to any decision on the petition.
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`in the prior petition, the petitioners challenged dependent claims 17, 18, 37, and 38
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`under Yung alone, arguing: “For the reasons discussed above regarding claims 7
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`and 27 [also challenged under Yung alone], and because Yung’s ‘traffic
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`monitoring module 75’ performs the same functions as the ’593 patent’s
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`‘processors,’ Yung discloses claims 17 and 37. … For the reasons discussed
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`above regarding claims 7 and 27 [also challenged under Yung alone], and because
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`Yung’s ‘traffic monitoring module 75’ performs the same functions as the ’593
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`patent’s ‘processors,’ Yung discloses claims 18 and 38.” See Palo Alto Networks
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`et al. v. Sable Networks, Inc., IPR2020-01712, Paper 6, 45; see also id., 8 (chart
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`listing Yung as the sole reference in ground 1, the only ground under which
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`dependent claims 17, 18, 37, and 38 of the ’593 patent were challenged). There is
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`zero evidence that this argument advanced by Palo Alto Networks, Inc., Dell
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`Technologies Inc., Vmware, Inc., Juniper Networks, Inc., Hewlett Packard
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`Enterprise Company, and Aruba Networks, Inc. contained any errors,
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`typographical or otherwise.
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`After having seven months to review and analyze the prior petition,
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`including with their retained technical opinion declarant Dr. Jeffay, for any
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`supposed errors, typographical or otherwise, Cloudflare and SonicWall drafted,
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`checked over and re-read, and filed their Petition. And as to this aspect of the
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`Ground, Cloudflare and SonicWall, by and through their sophisticated and
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`experienced counsel, made the exact same arguments in the Petition as the prior
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`petitioners had made. The Petition makes no arguments under Yung in
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`combination with Copeland concerning dependent claims 17, 18, 37, and 38.
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`Instead, Petitioners copied the arguments previously advanced in Palo Alto
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`Networks et al. v. Sable Networks, Inc., IPR2020-01712. Like their predecessors,
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`Petitioners challenge dependent claims 17, 18, 37, and 38 under Yung alone,
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`arguing: “For the reasons discussed above regarding claims 7 and 27 [also
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`challenged under Yung alone], and because Yung’s ‘traffic monitoring module 75’
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`performs the same functions as the ’593 Patent’s ‘processors,’ Yung discloses
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`claims 17 and 37. … For the reasons discussed above regarding claims 7 and 27
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`[also challenged under Yung alone], and because Yung’s ‘traffic monitoring
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`module 75’ performs the same functions as the ’593 Patent’s ‘processors,’ Yung
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`discloses claims 18 and 38.” Pet., 42-43.
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`Moreover, Petitioners cite the Declaration of their technical opinion
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`declarant, Dr. Jeffay, to support their argument that dependent claims 17, 18, 37,
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`and 38 are disclosed by Yung alone. Id. (citing Ex. 1003 [Jeffay Decl.] ¶¶ 194,
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`195). Dr. Jeffay parrots the language of the Petition but also states: “it is my
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`opinion that Yung discloses [17] and [37],” and “it is my opinion that Yung
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`discloses [18] and [38]. Therefore, in my opinion, a POSA would have understood
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`that Yung discloses [18] and [38].” Ex. 1003 [Jeffay Decl.] ¶¶ 194, 195. The
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`record is clear that Petitioners made no typographical error in challenging
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`dependent claims 17, 18, 37, and 38 under Yung alone.5
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`The later actions, separate from those of eight unrelated sophisticated
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`technology companies, of Splunk Inc. (now joined as a Petitioner to this
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`proceeding) confirm that there was no typographical error. On November 24,
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`2021, five days after the Board issued its Institution Decision, Splunk filed its own
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`Petition for Inter Partes Review of the ’593 patent. Splunk Inc. v. Sable Networks,
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`Inc., IPR2022-00228, Paper 2 (filed November 24, 2021). In its petition, Splunk
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`5 After the Institution Decision, one of Cloudflare’s attorneys sent counsel
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`for Patent Owner a short self-serving email in which he simply parroted the
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`Board’s reasoning, adopting the argument the Board had advanced on behalf of
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`Petitioners, and stating that “the Board identified a typo in the Petition.” Ex. 1102.
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`Cloudflare’s attorney’s self-serving statement is not competent evidence of a
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`typographical error in the Petition. Had Petitioners introduced, either as
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`supplemental evidence or with their Reply, testimony or other evidence of a
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`typographical error, Patent Owner could have tested that evidence in deposition or
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`otherwise. None was filed, and “[a]ttorney argument is not evidence.” Icon
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`Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1043 (Fed. Cir. 2017).
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`challenged dependent claims 17, 18, 37, and 38 under Yung alone, making the
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`exact same arguments as those advanced by Cloudflare and the prior petitioners.
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`See id., 1, 41-42. Although Splunk was aware of the Institution Decision when it
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`filed its own Petition, it chose not to challenge dependent claims 17, 18, 37, and 38
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`under Yung in combination with Copeland. Splunk did not assert there was a
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`typographical error, introduced no evidence that there was a typographical error,
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`and made no attempt to explain away the supposed typographical error in the prior
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`petitions. The reason for this is simple. There is no typographical error and the
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`Board is not empowered to consider arguments Petitioners or Patent Owners did
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`not make or evidence they did not submit.
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`Not surprisingly, the Board decisions on which Petitioners rely are readily
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`distinguishable; they in fact underscore why the Board should not, and indeed
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`cannot, advance arguments that could have been but were not made in the Petition.
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`In Axonics v. Medtronic, IPR2020-00713, Paper 42 (PTAB Sept. 22, 2021), the
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`Board “considered the omission of these claims [16 and 17] from this asserted
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`ground in the Petition’s listing of the asserted grounds to be a typographical error”
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`because, unlike here, the remainder of the petition confirmed that an error had
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`occurred because “[i]n the arguments for this asserted ground … Petitioner
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`addresse[d] these claims.” Id., 14 n. 10 (emphasis added). In other words, the
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`petition in Axonics was internally inconsistent, which was strong evidence of a
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`typographical error. Although the petitioner failed to include the at-issue claims
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`under ground 5 in its abbreviated listing of asserted grounds, its arguments
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`regarding ground 5 addressed these claims. Axonics, IPR2020-00713, Paper 1,
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`18 (filed on Mar. 16, 2020) (listing of grounds referencing claims 16 and 17 in
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`grounds 3 and 7); 58, 72-73 (specifically arguing in ground 5 that claims 16 and 17
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`were disclosed by the ground 5 references).
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`Similarly, in IBM v. Trusted Knight, IPR2020-00323, Paper 37, 62-63 (June
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`30, 2021), the Board found the petitioner made a typographical mistake in mapping
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`certain claim limitations, because, once again, the remainder of the petition itself
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`“ma[de] clear” that there was an error in the text of the petition. There, the
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`petitioner “inadvertently included a typo, mapping claim 26d (the ‘identifying’
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`limitation) to claim 7” even though claim 7 was not even challenged. Id., 62. The
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`Board found the petitioner made a correctable typographical error, reasoning that
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`the “disputed ‘identifying’ limitation of claim 26 is identical to the same limitation
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`in claim 22. Petitioner makes clear its intention to apply the arguments made for
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`claim 22 to claim 26 when it states that ‘[i]ndependent claim 11 contains
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`limitations similar to claim 1, and claim 26 contains limitations similar to claim
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`22’ just before presenting the chart showing claim mappings. Because claim 7 is
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`not even challenged, and because Petitioner makes clear that claim 22 and claim 26
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`are similar, it is readily apparent that Petitioner’s chart contains an error when
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`referencing claim 7.” Id. (emphasis added). Thus, as in Axonics, the Board did not
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`make arguments for the petitioner that were not in the petition. Instead, in
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`analyzing the arguments actually made in the petition, the Board determined the
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`petitioner had made a typographical error in a summary chart.
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`The next case Petitioners cite, Netapp v. KOM Software, IPR2019-00606,
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`Paper 37, 6 n.8, 39-41 (PTAB Sept. 23, 2020), is similarly distinguishable for
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`similar reasons. The Board found the “Petition’s listing of claims 54-57 separately
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`under Vossen in view of Nagar appears to be a typographical error. Aspects of the
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`discussion of claim 54 rely on Denning, as well as on the prior discussion of claims
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`26 and 27, which also rely on Denning.” Id., 6 n.8. The petitioner’s summary of
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`the asserted grounds listed claims 54-57 as being disclosed by Vossen in view of
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`Nagar. Netapp, IPR2019-00606, Paper 3, 12 (filed Jan. 25, 2019). However, that
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`summary was clearly inconsistent with the text in the remainder of the petition. In
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`the argument section of the petition, the petitioner argued that the Denning
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`reference also taught certain limitations of the at-issue claims. Id., 69. Because of
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`the internal inconsistency between the summary chart and the petitioner’s
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`arguments, the Board determined the petitioner simply made a typographical error
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`in the summary chart. The Board did not advance arguments on behalf of the
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`petitioner that were not made in the petition, as Petitioners ask the Board to do
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`here.
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`In the next case Petitioners cite, Nippon Suisan Kaisha v. Pronova
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`Biopharma Norge, PGR2017-00033, Paper 37 (PTAB Jan. 16, 2019), the Board
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`determined that a petition requesting post-grant review of certain claims contained
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`typographical errors. Again, that case is distinguishable, again for similar reasons.
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`As in the Board decisions discussed above, typographical errors in summary charts
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`and headings were made, which were clear in view of their inconsistency with the
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`substantive arguments advanced in the petition. For example, the Board noted that
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`“[p]age 2 of the Petition describes Ground 8 as ‘Breivik in view of Doisaki and/or
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`Young, Doisaki [sic] Martin, and/or Febrianto,’ but in discussing the merits of this
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`Ground, refers to ‘Breivik in view of Doisaki and/or Young and/or Martin and/or
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`Febrianto and/or Bimbo.’ We consider the failure to include Bimbo in the
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`statement of grounds on page 2 of the Petition a typographical error.” Id., 8 n. 12
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`(emphasis added). Similarly, the Board explained that “[p]age 2 of the Petition
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`describes Ground 7 as ‘Doisaki in view of Young, Martin, and/or Febrianto,’ but
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`in discussing the merits of this Ground, refers to ‘Doisaki in view of Breivik
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`and/or Young and/or Martin and/or Febrianto.’ We consider the failure to include
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`Breivik on page 2 of the Petition a typographical error.” Id. at 8 n. 8 (emphasis
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`added).
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`Finally, in Amperex Technology v. LG Chem., IPR2018-00783, Paper 8, 5 n.
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`2 (PTAB Sept. 19, 2018) (emphasis added), the Board explained that the
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`“Petition’s header for the proposed ground based on Hennige lists claims ‘24-39,’
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`rather than 24-29, as subject to the proposed ground. The Petition’s analysis,
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`however, ends at claim 29, and the ’241 patent has only 36 claims. We
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`understand the listing of claims ‘24-39’ in the Petition’s header to be a
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`typographical error, and that the header should have listed claims 24-29.”
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`In every Board decision Petitioners cite, the Board discerned and remedied
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`typographical errors in petitions, largely in headings and summary charts, that were
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`internally inconsistent with the substantive arguments the petitioners had advanced
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`regarding the alleged unpatentability of challenged claims. In that regard, Patent
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`Owner agrees with Petitioners that the Board “relies on common sense and logic to
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`understand the contentions presented in a petition despite typographical errors.”
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`Reply, 28 (emphasis added). For example, if Petitioners had substantively argued
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`in the Petition that dependent claims 17, 18, 37, and 38 were described by Yung in
`
`view of Copeland, then a failure to list claims 17, 18, 37, and 38 under ground 2 in
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`the Petition’s summary chart possibly might be record evidence of a typographical
`
`error. But that is not what happened here. Nowhere in the Petition do Petitioners
`
`ever argue, mention, or reference that dependent claims 17, 18, 37, and 38 are
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`described by the Yung and Copeland combination. Ever. Nowhere in the
`
`Declaration of Petitioner’s technical opinion declarant expert, Dr. Jeffay, does Dr.
`
`Jeffay ever opine that dependent claims 17, 18, 37, and 38 are described by the
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`13
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`Yung and Copeland combination. To the contrary, the Petition’s chart, substantive
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`arguments, and Dr. Jeffay’s testimony are all consistent and point only to Yung
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`alone as allegedly teaching the limitations of dependent claims 17, 18, 37, and 38.
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`So far as the record reflects or Patent Owner is aware, this would be the first to
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`ever accept a petitioner’s self-serving claim that the dog ate its homework without
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`any evidence that the dog did so.
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`And all that is without even mentioning the fact that the homework was
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`copied from that of other students—that Petition’s ground and arguments are
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`literally copied from an earlier petition filed by other sophisticated and experienced
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`parties and counsel. They never said their petition contained a typographical error.
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`Those who copied the prior petition never came upon this text and viewed it as a
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`typographical error—even though this case would have been the perfect
`
`opportunity to correct one if one existed. If there had been a typographical error,
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`Petitioners could have submitted competent evidence that it occurred, just as
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`parties seeking relief from filing petitions late due to computer errors submit
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`declarations from the personnel involved proving that the errors occurred. Here,
`
`all we have is Petitioners’ suggestion that the Board should find, in the absence of
`
`any evidence of it, that such an error occurred, in three petitions: the original
`
`petition, this copied petition, and Splunk’s joinder petition—all without any of
`
`them mentioning it.
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`14
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`U.S. Pat. No. 8,243,593
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`For all these reasons, it would be clear error for the Board to correct the
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`deficiencies in the Petition under the guise of a typographical error that does not
`
`exist. See In re Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1380 (Fed. Cir.
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`2016) (finding the Board erred in making an obviousness argument on behalf of
`
`the petitioner that could have been, but was not, made in the petition). The policy
`
`of balancing patent quality with the rights of patent owners does not justify
`
`bending the truth to satisfy either goal.
`
`The Petition must and should be taken at its word. Claims 17, 18, 37, and 38
`
`are challenged in ground 1 under Yung alone, and ground 1 fails as to those claims.
`
`III.
`
`PETITIONERS FAIL TO SHOW BY A PREPONDERANCE OF THE
`EVIDENCE THAT YUNG IN VIEW OF COPELAND DISCLOSES
`OR RENDERS OBVIOUS THE CALCULATION OF A BADNESS
`FACTOR AS CLAIMED (CLAIMS 9-13, 19-24, 29-33, 39-44,
`GROUND 2).
`
`A. Copeland Does Not Disclose The Claimed “Badness Factor.”
`
`Independent claims 9 and 29 each recite computing a “badness factor for the
`
`flow, wherein the badness factor provides an indication of whether the flow is
`
`exhibiting undesirable behavior.” Ex. 1001 [’593 Patent] cls. 9.2, 29.2. Every
`
`challenged claim in ground 2 includes the limitations associated with computing
`
`this “badness factor.” The Petition concedes Yung does not disclose these
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`“badness factor” limitations. Pet., 49. The Petition relies on Copeland to try to fill
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`this gap. See id. Although the Petition asserts that Copeland’s “flow-based
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`15
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`Case IPR2021-00909
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`‘concern index’ (or CI) value represents the claimed badness factor,” it fails to
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`substantiate this assertion. See id. (citing Ex. 1003 [Jeffay Decl.] ¶ 210).
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`The Patent Owner Response explains that the Petition cites no evidence to
`
`support its assertion except ipse dixit in the accompanying declaration of
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`Petitioner’s technical opinion declarant, Dr. Jeffay, which asserts: “This concern
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`index (CI) value represents the claimed badness factor.” Ex. 1003 [Jeffay Decl.]
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`¶ 210; POR, 17-21. But the law is clear that “[m]erely repeating an argument from
`
`the Petition in the declaration of a proposed expert,” as Petitioners have done,
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`“does not give that argument enhanced probative value” even in the absence of
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`opposing expert testimony. See Kinetic Techs., Inc. v. Skyworks Sols., Inc.,
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`IPR2014-00529, Paper 8, 15 (Sept. 23, 2014); see also Unified Patents Inc. v.
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`Uniloc 2017 LLC, IPR2019-00480, Paper 10, 3 (Aug. 16, 2019) (“Just because an
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`expert regurgitates attorney argument does not make the argument either
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`persuasive or worthy of blind acceptance when counter testimony does not exist.”).
`
`The Patent Owner Response further explains that Dr. Jeffay testified at his
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`deposition that the POSITA would not even understand the term “badness factor.”
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`Ex. 2007 [Jeffay Transcript] 35:17-36:7; POR, 19. Yet, at the same time, Dr.
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`Jeffay contradictorily opines that “whatever a badness factor is, Copeland’s
`
`recitation of what it refers to as suspicious activity … would certainly qualify as a
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`badness factor.” Ex. 2007 [Jeffay Transcript] 35:17-36:15 (emphasis added). In
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`16
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`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
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`Reply, Petitioners simply sidestep this critical issue, arguing “it was unnecessary”
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`for Dr. Jeffay to form an opinion regarding the meaning of the term “badness
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`factor.” Reply, 7. That argument is nonsensical, and should be rejected.
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`Petitioners’ statutory burden of persuasion prevents Petitioner from proving that
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`the “badness factor” term is met without presenting competent evidence that it is
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`so. Without evidentiary support for the contention that Copeland’s “concern
`
`index” teaches or suggests the claimed badness factor, Petitioners have failed to
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`carry their burden under the heightened preponderance standard with respect to
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`ground 2.
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`B.
`
`The Claims Require Calculating A “Badness Factor” For Each
`Flow.
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`In Patent Owner’s Response to the Petition, Patent Owner showed that
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`Copeland’s “concern index,” unlike claim 9 and 29’s “badness factor,” is not
`
`computed on a per-flow basis. POR, 22-23. Petitioners’ response is to argue that
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`claims 9 and 29 do not require calculating the claimed “badness factor” for each
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`flow. Reply, 8-9. Petitioners are wrong.
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`Independent claims 9 and 29 of the ’593 patent recite computing a “badness
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`factor” for each flow. Ex. 1001 [’593 Patent] cls. 9.2, 29.2. As the patent explains
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`in its description of the invention:
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`the MFM 210 determines (block 304) whether the flow is exhibiting
`
`undesirable behavior. In one embodiment, this determination is made
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`Case IPR2021-00909
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`by computing a badness factor for the flow. This badness factor is
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`computed based on the behavioral statistics of the flow and provides an
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`indication as to whether the flow is exhibiting undesirable behavior.
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`Ex. 1001 [’593 Patent] 6:25-31; see also id., 7:51-52 (“[T]he MFM 210d also
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`computes a badness factor for the flow.”); id., 8:12-17 (“By taking these
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`components into account in the computation of the badness factor, it is possible to
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`derive a badness factor that provides an indication of whether a flow is
`
`misbehaving. In one embodiment, a badness factor larger than 1 indicates a
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`misbehaving flow.”). In every one of the embodiments, the ’593 patent’s “badness
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`factor” is calculated for each flow regardless of whether the flow is misbehaving,
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`and there is not a single embodiment hinting that the badness factor is computed
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`for only some flows. Although Petitioners seem to fault Patent Owner for relying
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`on the ’593 patent’s specification, it is black letter law that claims are to be
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`interpreted “consistent with the specification, and claim language should be read in
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`light of the specification ….” Immunex Corp. v. Sanofi-Aventis U.S. LLC, 977
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`F.3d 1212,
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