Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CLOUDFLARE, INC. AND SONICWALL INC.,
`Petitioner,
`
`v.
`
`SABLE NETWORKS, INC.,
`Patent Owner
`
`____________
`
`Case IPR2021-00909
`Patent 8,243,593
`
`____________
`
`PATENT OWNER’S PRELIMINARY RESPONSE
`TO PETITION FOR INTER PARTES REVIEW
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`U.S. Pat. No. 8,243,593
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CLOUDFLARE, INC. AND SONICWALL INC.,
`Petitioner,
`
`v.
`
`SABLE NETWORKS, INC.,
`Patent Owner
`
`____________
`
`Case IPR2021-00909
`Patent 8,243,593
`
`____________
`
`PATENT OWNER’S PRELIMINARY RESPONSE
`TO PETITION FOR INTER PARTES REVIEW
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`Page
`
`INTRODUCTION ............................................................................................... 1
`I.
`II. FACTUAL BACKGROUND ............................................................................. 5
`A. The ’593 Patent ........................................................................................... 5
`B. References Cited In The Petition ................................................................ 9
`1. Yung ...................................................................................................... 9
`2. Copeland .............................................................................................. 11
`3. Four-Steps Whitepaper ........................................................................ 12
`4. Ye ........................................................................................................ 13
`III. PETITIONER FAILS TO SHOW A REASONABLE LIKELIHOOD THAT
`ANY OF THE CLAIMS ARE DISCLOSED AND/OR RENDERED
`OBVIOUS (ALL GROUNDS, ALL CLAIMS). .............................................. 14
`A. The Petition Fails To Sufficiently Demonstrate That Storing The
`“Behavioral Statistics” For A Flow As Claimed Is Disclosed Or Made
`Obvious By Any Combination (All Grounds, Claims 1–44). .................. 14
`B. The Petition Fails To Sufficiently Demonstrate That The Yung
`Combinations Disclose Use Of A “Single Router” In The Manner
`Claimed (Ground I, Claims 1, 2, 6-7; Ground IV, Claim 8). ................... 16
`1. Yung Is Not Shown To Teach The Single Router Limitations. .......... 18
`2. Yung Teaches Away From Use Of A Single Router As Claimed. ..... 21
`3. The Art Incorporated And Cited In Yung Also Does Not Disclose The
`Single Router Limitations. .................................................................. 26
`4. The Petition Fails To Sufficiently Explain How Yung Could Or
`Would Be Modified To Perform The Claimed Invention. .................. 32
`i
`
`
`
`
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`C. The Petition Fails To Sufficiently Demonstrate That The Yung
`Combinations Disclose Or Render Obvious The Calculation Of A
`Badness Factor As Claimed (Ground I, Claims 17-18, 37-38; Ground II,
`Claims 9-13, 19-24, 29-33, 39-44; Ground IV, Claims 14-16, 34-36). ... 34
`1. Copeland Does Not Disclose The Claimed “Badness Factor” For
`Each Flow. ........................................................................................... 34
`2. The Petition Does Not Sufficiently Establish A Reason For The
`POSITA To Have Combined Yung And Copeland As Proposed. ...... 39
`D. The Petition Fails To Demonstrate That Young And The Four-Steps
`Whitepaper Make Claim 3 Obvious (Ground III, Claim 3). .................... 43
`1. Petitioner Fails To Sufficiently Show The Four-Steps That
`Whitepaper Was Publicly Accessible Qualified Prior Art. ................. 43
`2. The Proposed Combination Does Not Disclose A Field Containing
`Data Representing Behavioral Statistics About Dropped Packets. ..... 53
`3. The Petition Does Not Show A Reason The POSITA Would Have
`Combined Yung And The Four-Steps Whitepaper As Proposed. ...... 56
`E. The Petition Fails To Sufficiently Demonstrate Its Combinations Enforce
`Penalties On A Flow As Claimed (Ground I, Claims 1-2, 4-7, 17-18, 25-
`27, 37-38; Ground II, Claims 12-13, 32-33; Ground III, Claim 3; Ground
`IV, Claims 8, 14-16, 28, 34-36). .............................................................. 59
`F. The Petition Fails To Show That Ye Renders Obvious The Enforcement
`Of A Penalty When A “Congestion Condition” Is Encountered As
`Claimed (Ground IV, Claims 8, 14-16, 28, 34-36). ................................. 63
`IV. THE BOARD SHOULD DENY INSTITUTION UNDER § 314(a). .............. 64
`V. CONCLUSION ................................................................................................. 70
`
`
`
`
`
`
`ii
`
`
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`TABLE OF AUTHORITIES
`
`Page
`
`COURT DECISIONS
`
`Blue Calypso, LLC v. Groupon, Inc.,
`815 F.3d 1331 (Fed. Cir. 2016) ............................................................................ 45
`Cont’l Intermodal Grp.-Trucking LLC v. Sand Revolution LLC,
`Case No. 7:18-cv-00147-ADA (W.D. Tex. Jul. 22, 2020) .................................. 66
`In re Cronyn,
`890 F.2d 1158 (Fed. Cir. 1989) ............................................................................ 45
`Cuozzo Speed Techs. v. Lee,
`136 S. Ct. 2131 (2016) ......................................................................................... 64
`Ecofactor, Inc, v. Vivint, Inc.,
`Case No. 6-20-cv-00080 (W.D. Tex. Apr. 16, 2021) .......................................... 68
`Google LLC v. Ecofactor, Inc.,
`IPR2021-00454, Paper 9 (PTAB July 22, 2021) ................................................. 68
`Kerr Mach. Co. d/b/a Kerr Pumps v. Vulcan Indus. Holdings, LLC,
`Case No. 6:20-cv-00200-ADA (W.D. Tex. Aug. 2, 2020) .................................. 66
`In re Klopfenstein,
`380 F.3d 1345 (Fed. Cir. 2004) ............................................................................ 44
`MiMedx Grp., Inc. v. Tissue Transplant Tech. Ltd.,
`2015 WL 11573771 (W.D. Tex. Jan 5, 2015) ..................................................... 66
`MultiMedia Content Mgmt LLC v. Dish Network L.L.C.,
`Case No. 6:18-cv-00207-ADA (W.D. Tex. May 30, 2019) ................................ 66
`Suffolk Techs., LLC v. AOL Inc.,
`752 F.3d 1358 (Fed. Cir. 2014) ............................................................................ 44
`
`
`
`iii
`
`
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1329 (Fed. Cir.
`2001)..................................................................................................................... 59
`Voter Verified, Inc. v. Premier Election Sols., Inc.,
`698 F.3d 1374 (Fed. Cir. 2012) ............................................................................ 45
`WBIP, LLC v. Kohler Co.,
`829 F.3d 1317 (Fed. Cir. 2016) ............................................................................ 59
`AGENCY DECISIONS
`
`Adobe Sys. Inc. v. Grecia,
`IPR2018-00418, Paper 7 (PTAB June 21, 2018) ................................................. 48
`Adobe Sys. Inc. v. Grecia,
`IPR2018-00418, Paper 9 (PTAB Sept. 7, 2018) ........................................... 47, 50
`Apple Inc. v. Fintiv, Inc.,
`IPR2020-00019, Paper 11 (PTAB Mar. 20, 2020)
`(precedential) ................................................................................................. 65, 66
`Celltrion, LLC v. Biogen, Inc.,
`IPR2017-01230, Paper 10 (PTAB Oct 12, 2017) ................................................ 45
`General Plastic Indus. Co., Ltd. v. Canon Kabushiki Kaisha,
`IPR2016-01357, Paper 19 (PTAB Sept. 6, 2017)
`(precedential) ........................................................................................................ 69
`Google LLC v. IPA Techs. Inc.,
`IPR2018-00384, Paper 11, 13–15 (PTAB July 3, 2018) ........................ 45, 47, 51
`Gracenote, Inc. v. Iceberg Indus. LLC,
`IPR2013-00551, Paper 6 (PTAB Feb. 28, 2014) ................................................. 44
`HTC Corp. v. Cellular Commc’ns Equip. LLC,
`IPR2016-01503, Paper 7 (PTAB Feb. 13, 2017) ................................................. 44
`Hulu, LLC v. Sound View Innovations, LLC,
`IPR2018-01039, Paper 29 (PTAB Dec. 20, 2019)
`(precedential) ........................................................................................................ 43
`
`
`iv
`
`
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`Keurig Green Mountain, Inv. v. Touch Coffee & Beverages, LLC,
`IPR2016-01395, Paper 18 (PTAB Jan. 4, 2017) .................................................. 34
`Kingston Tech. Co., Inc. v. Memory Techs., LLC,
`IPR2019-00654, Paper 9, (PTAB Aug. 13, 2019) ........................................ 45, 46
`Laird Techs., Inc. v. A.K. Stamping Co. Inc.,
`IPR2017-02038, Paper 6 (PTAB Mar. 14, 2018) ................................... 48, 49, 52
`Mylan Pharms., Inc. v. Bayer Intellectual Property GmbH,
`IPR2018-01143, Paper 13 (PTAB Dec. 3, 2018) ................................................ 70
`NHK Spring Co. v. Intri-Plex Techs., Inc.,
`IPR2018-00752, Paper 8 (PTAB Sept. 12, 2018)
`(precedential) ........................................................................................................ 64
`Philip Morris Prod., S.A. v. RAI Strategic Holdings, Inc.,
`IPR2020-00921, Paper 9 (PTAB Nov. 16, 2020) ................................................ 65
`Shenzhen Zhiyi Tech. Co. v. iRobot Corp.,
`IPR2017-02133, Paper 8 (PTAB Mar. 28, 2018) ......................................... 48, 50
`William Wesley Carnes, Sr., Inc. v. Seaboard Int’l Inc.,
`IPR2019-00133, Paper 10 (PTAB May 8, 2019) ................................................. 57
`STATUTES
`
`35 U.S.C. § 314(a) ................................................................................................... 64
`RULES, REGULATIONS, AND OTHER AGENCY AUTHORITIES
`
`37 C.F.R. § 42.65(a) ................................................................................................. 34
`OTHER AUTHORITIES
`
`2011 U.S.C.C.A.N. 69 ............................................................................................. 69
`H.R. Rep. No. 112-98 .............................................................................................. 69
`
`
`
`
`v
`
`
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`EXHIBIT LIST
`
`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)) [NEWLY ADDED]
`
`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‐
`Inc., No. 6:21‐cv‐00261‐ADA (June 24, 2021) [NEWLY ADDED]
`
`ADA – Request for Telephone Conference” (Aug. 20, 2021, 9:04 am)
`[NEWLY ADDED]
`
`Scheduling Order, Dkt. 21, Sable Networks, Inc., et al. v. Cloudflare,
`
`2001
`
`2002
`
`2003
`
`
`
`vi
`
`
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`INTRODUCTION
`This Petition for inter partes review should be denied because it fails to
`
`I.
`
`demonstrate a reasonable likelihood of success with respect to any of the
`
`challenged claims.
`
`The Petition raises four proposed grounds, each anchored by the same
`
`reference, Yung. However, the Petition fails to show a reasonable likelihood that
`
`any of the Yung grounds disclose or teach each element of the challenged claims
`
`or renders the claims obvious.
`
`First, the Petition fails to show a reasonable likelihood that Yung can be
`
`shown to disclose the “stor[ing] [of] . . . behavioral statistics pertaining to each
`
`flow” “as . . . packet[s] [are] processed,” as claimed. Every independent claim of
`
`the ’593 patent requires the storing of behavioral statistics for individual flows.
`
`Ex. 1001 [’593 Patent] cls. 1-5, 9, 25, 29. There is no showing that Yung teaches
`
`storing behavioral statistics for each flow as packets are processed. This is
`
`unsurprising, because Yung is directed to the classification of data packets into
`
`traffic classes, where once a flow is classified as part of a traffic class, the
`
`behavioral statistics about the flow are stored on a “per-traffic-class” or aggregate
`
`basis. In contrast, the ’593 patent teaches the identification of misbehaving flows
`
`based on the continued monitoring of a data flow. In short, Yung is directed to the
`
`
`1
`
`
`
`initial action of flow classification, whereas the patented invention teaches
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`identification of misbehaving flows through continued monitoring. See infra
`
`§ III.A.
`
`Petitioner relies on Yung alone, or in combinations involving three other
`
`references, to challenge the patent’s various claims on four grounds. Each attack
`
`seriously misses the mark in not just the way described above, but numerous others
`
`as well. Second, Ground 1 as to 1, 2, and 6-7, and Ground 4 as to claim 8, fail
`
`because Yung does not disclose still other limitations of the challenged claims,
`
`including use of a “single router” for the recited functionality and enforcing
`
`penalties on misbehaving flows. These arguments also fail for at least the
`
`additional reason that, although Petitioner concedes Yung would have to be
`
`modified to meet the claimed invention, Petitioner fails to explain what
`
`modifications would be required, and why those modifications would have been
`
`obvious. See infra § III.B.
`
`Third, Grounds 2 and 3, which rely on the correctness of the arguments in
`
`Ground 1, fails for at least one more reason as to claims 9–24 and 29–44: Copeland
`
`in combination with Yung does not disclose the calculation of a “badness factor”
`
`for each flow. Nor does Petitioner establish that a POSITA would have been
`
`
`
`2
`
`
`
`motivated to combine Yung and Copeland to meet these claim limitations. See
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`infra § III.C.
`
`Fourth, the claims in every Ground that recite enforcing a penalty against a
`
`flow (claims 1–8, 12–18, 25–28, and 32–38 are also not disclosed or rendered
`
`obvious as to these limitations. The alleged prior art’s alleged penalties against a
`
`flow are neither penal, nor punitive of misbehavior, as the patent claims and
`
`describes. See infra § III.E.1
`
`Fifth, Ground 3, which challenges independent claim 3, and again relies on
`
`the correctness of the flawed arguments in Ground 1, also fails at least because
`
`Petitioner has not carried its burden to establish the Four-Steps Whitepaper was
`
`publicly available so as to constitute a printed prior art publication. Petitioner’s
`
`proposed combination of Yung and the Four-Steps Whitepaper does not disclose
`
`claim 3’s limitation of “a second field containing data representing payload-
`
`content-agnostic behavioral statistics about dropped and non-dropped packets of a
`
`
`
` 1
`
` Thus, the arguments in Sections III.C and III.E of this Preliminary
`
`Response collectively apply to all challenged claims.
`
`
`
`3
`
`
`
`flow.” Nor does Petitioner establish a reasonable probability of a motivation for
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`the POSITA to combine the references as proposed. See infra § III.D.
`
`Sixth, the fourth Ground, which (as already noted) also relies on the
`
`correctness of Ground 1’s flawed reasoning, also fails as to challenged claims 8,
`
`14–16, 28, and 34–36 at least because the combination of Yung and Copeland in
`
`view of Ye does not disclose the use of a “congestion condition” to determine if a
`
`penalty is enforced on a flow as claimed. The alleged “congestion” in Ye is a
`
`“saturation condition” arising when a router is overwhelmed by incoming packets.
`
`In contrast, the “congestion condition” disclosed and claimed in the ’593 patent
`
`refers to congestion outside the router on the link to which the router is sending out
`
`packets. Ex. 1001 [’593 Patent] 8:57-59 (“[A] congestion condition is encountered
`
`(e.g., the outgoing link is experiencing congestion).”). The claims are not met.
`
`In addition to the above merits arguments, the Board should also exercise its
`
`discretion to deny the Petition because instituting inter partes review based on the
`
`present Petition would not be an efficient use of the Board’s time and resources.
`
`Among other reasons, this is one of four patents in litigation between Petitioner
`
`and Patent Owner, and not all claims in another asserted patent are subject to IPR,
`
`so institution would not obviate significant work by the Courts.
`
`
`
`4
`
`
`
`This Response is timely under 35 U.S.C. § 313 and 37 C.F.R. § 42.107(b),
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`as it is filed within three months of the May 21, 2021 date of the Notice of Filing
`
`Date Accorded to Petition and Time for Filing Patent Owner Preliminary
`
`Response. Paper 4.
`
`For at least these and other reasons provided herein, Patent Owner
`
`respectfully requests the Board deny the Petition and not institute trial. This
`
`Preliminary Response raises only selected arguments sufficient to support denial of
`
`institution. If institution were to be granted, Patent Owner is prepared to raise still
`
`further arguments and present further evidence demonstrating that the grounds in
`
`the Petition should be rejected.
`
`II.
`
`FACTUAL BACKGROUND
`To orient the Board regarding the issues pertaining to its decision whether to
`
`institute review, this Section describes certain background facts of the patent and
`
`the petitioned art.
`
`A. The ’593 Patent
`
`U.S. Patent No. 8,243,593, entitled Mechanism for Identifying and
`
`Penalizing Misbehaving Flows in a Network, was filed on December 22, 2004. Ex.
`
`1001. The ’593 patent is subject to a 35 U.S.C. § 154(b) term extension of 1,098
`
`days.
`
`
`
`5
`
`
`
`The original assignee was Caspian Networks, Inc. Dr. Lawrence G.
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`Roberts—a founding father of the internet, best known for his work as the Chief
`
`Scientist of the Advanced Research Projects Agency (ARPA) where he designed
`
`and oversaw the implementation of ARPANET, the precursor to the internet—
`
`founded Caspian Networks in 1998. At Caspian Networks, Dr. Roberts developed
`
`a new kind of internet router to efficiently route packets over a network, which was
`
`aimed at addressing concerns about network “gridlock.” In a 2001 interview with
`
`Wired Magazine, for example, Dr. Roberts discussed the router he was then
`
`developing at Caspian Networks—the Apeiro. He told Wired:
`
`the Apeiro will... create new revenue streams for the carriers by solving
`the ‘voice and video problem.’ IP voice and video, unlike email and
`static Web pages, breaks down dramatically if there’s a delay - as little
`as a few milliseconds - in getting packets from host to recipient.”
`
`Ex. 2001.2 The Apeiro debuted in 2003.
`
`At its height, Caspian Networks, Inc. raised more than $300 million dollars
`
`and grew to more than 320 employees in the pursuit of developing and
`
`
`
`
`
`2 John McHugh, The n-Dimensional Superswitch, WIRED MAGAZINE (May 1,
`2001).
`
`
`
`6
`
`
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`commercializing Dr. Roberts’ groundbreaking networking technologies. However,
`
`despite early success with its technology, Caspian’s business ran into shoals when
`
`the telecommunications bubble burst.
`
`Sable Networks, Inc., the current assignee, was formed by Dr. Sang Hwa
`
`Lee to further develop and commercialize the flow-based networking technologies
`
`developed by Dr. Roberts at Caspian Networks. Sable Networks, Inc. has
`
`continued its product development efforts based on the patented technology and
`
`has gained commercial success with customers in Japan, South Korea, and China.
`
`Customers of Sable Networks, Inc. have included: SK Telecom, NTT Bizlink,
`
`Hanaro Telecom, Dacom Corporation, USEN Corporation, Korea Telecom, China
`
`Unicom, China Telecom, and China Tietong.
`
`The ’593 patent is one of several Caspian Networks patents now assigned to
`
`Sable Networks, Inc. The ’593 patent discloses novel methods and systems for
`
`processing a flow of a series of information packets on a single router. It discloses
`
`and claims technologies that permit a single router to identify and control less
`
`desirable network traffic. Because the characteristics of data packets in
`
`undesirable network traffic can sometimes be disguised, the ’593 patent improves
`
`the operation of computer networks by disclosing technologies that can pierce such
`
`
`
`7
`
`
`
`a disguise by monitoring the characteristics of flows of data packets rather than
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`ancillary factors such as port numbers or signatures.
`
`As the ’593 patent explains, “[w]ith the advent of file sharing applications
`
`such as KaZaA, Gnutella, BearShare, and Winny, the amount of peer-to-peer (P2P)
`
`traffic on the Internet has grown immensely in recent years. … This is so despite
`
`the fact that the number of P2P users is quite small compared to the number of non
`
`P2P users. For this and other reasons, P2P traffic is viewed by ISP’s (Internet
`
`service providers) and others as being abusive/misbehaving traffic that should be
`
`controlled and penalized.” Ex. 1001 [’593 patent] 1:7-18. The ’593 patent
`
`recognizes that to control misbehaving traffic such as P2P traffic, it must be
`
`identified. Id. at 1:19-20. At the time, “P2P protocols ha[d] gotten quite
`
`sophisticated,” making it more difficult to identify misbehaving traffic. Id. at 1:46-
`
`49.
`
`The ’593 patent is directed toward “a mechanism for effectively identifying
`
`and penalizing misbehaving information packet flows in a network. This
`
`mechanism may be applied to any type of network traffic including, but certainly
`
`not limited to, P2P traffic.” Id. at 1:54-58. “Because misbehaving flows are
`
`identified based upon their observed behavior, and because their behavior cannot
`
`be hidden, misbehaving flows cannot avoid detection.” Id. at 1:61-64.
`
`
`8
`
`
`
`The ’593 patent discloses tracking the behavioral statistics of a flow of data
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`packets that can be used to determine whether the flow is undesirable. “These
`
`behavioral statistics reflect the empirical behavior of the flow.” Id. at 2:4-5. The
`
`behavioral statistics are updated as information packets belonging to the flow are
`
`processed by a single router. Id. at 2:14-17. Based at least in part on the
`
`behavioral statistics, “a determination is made as to whether the flow is exhibiting
`
`undesirable behavior.” Id. at 2:18-20. The patent discloses this determination is
`
`made by calculating a “badness factor” for each flow which is computed based on
`
`the flow’s behavioral characteristics. Id. at 2:21-23. “If the flow is exhibiting
`
`undesirable behavior, then a penalty may be enforced on the flow.… This penalty
`
`may be an increased drop rate.” Id. at 2:28-31. In one embodiment, for example,
`
`enforcing the penalty on a flow rehabilitates the flow by causing its badness factor
`
`to improve. Id. at 2:42-45. “Once the flow is no longer misbehaving, it is no
`
`longer subject to penalty. In this manner, a misbehaving flow can be identified,
`
`penalized, and even rehabilitated ….” Id. at 2:47-50.
`
`B. References Cited In The Petition
`
`Yung
`1.
`U.S. Patent No. 7,664,048 to Yung et al., is entitled Heuristic Behavior
`
`Pattern Matching of Data Flows in Enhanced Network Traffic Classification. Ex.
`
`
`9
`
`
`
`1005 (“Yung”). Yung is Petitioner’s primary cited reference, relied on under 35
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`U.S.C. § 102(e) with respect to all four grounds asserted in the Petition.
`
`Unlike the ’593 patent’s claimed invention, Yung’s disclosed technology, a
`
`“traffic monitoring device,” is separate from, and sits on the link between, a router
`
`and a network. Ex. 1005 [Yung] 7:29-32; Figs. 1, 2. In fact, Yung expressly
`
`teaches that routers, in combination with TCP (Transport Control Protocol) end
`
`systems, only could achieve a “crude form of bandwidth management” and
`
`“configuring [a router’s] queuing options with any precision or without side effects
`
`is in fact very difficult, and in some cases, not possible.” Id. at 3:20-25, 3:30-32.
`
`Therefore, Yung’s invention is not performed by a router, as required by the ’593
`
`patent and its challenged claims. See infra § III.B.
`
`Yung’s technology is directed to providing “methods, apparatuses and
`
`systems facilitating enhanced classification of network traffic.” Ex. 1005 [Yung]
`
`5:53-55. In classifying network traffic, Yung’s “traffic monitoring device” stores
`
`“various measurement values” “on an aggregate and/or per-traffic-class basis,”
`
`unlike the ’593 patent which stores behavioral characteristics of a flow on a per-
`
`flow basis. Id. at 7:49-51. See infra III.A.
`
`Yung implements Per-Flow Bandwidth Utilization Controls which relate to
`
`discarding packets or entire flows that exceed a rate associated with a particular
`
`
`10
`
`
`
`class of network traffic. Id. at 19:58-64. This is also dissimilar to the ’593 patent,
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`which discloses a penalty of dropping packets that is intended to rehabilitate a flow
`
`so that the flow will exhibit less undesirable behavior. Ex. 1001 [’593 Patent]
`
`5:38-42, 6:53-56, 9:67-10:3. See infra § III.E.
`
`Copeland
`2.
`U.S. Patent No. 7,185,368 to Copeland, is entitled Flow-Based Detection of
`
`Network Intrusions. Ex. 1007 (“Copeland”). Copeland is a secondary reference
`
`relied on by Petitioner in combination with Yung as alleged prior art under 35
`
`U.S.C. § 102(e) with respect to ground 2 in the Petition.
`
`Copeland teaches “an intrusion detection system that inspects all inbound
`
`and outbound network activity and identifies suspicious patterns that may indicate
`
`a network system attack or intrusion.” Ex. 1007 [Copeland] 1:45-48. Because
`
`Yung does not disclose calculating a “badness factor” for each flow as claimed,
`
`Petitioner relies on Copeland in combination with Yung to allegedly supply this
`
`missing limitation. Pet. at 49-51. Petitioner alleges Copeland’s “concern index”
`
`discloses the ’593 patent’s “badness factor.” Id. Copeland’s “concern index” is
`
`for “suspicious activity” in contrast to legitimate traffic. Ex. 1007 [Copeland]
`
`Abstract. In comparison, the ’593 patent’s “badness factor” is concerned with
`
`“undesirable” behavior or “misbehavior” associated with P2P traffic which is not
`
`
`11
`
`
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`necessarily suspicious behavior. Ex. 1001 [’593 Patent] 1:10-18. See supra § II.A;
`
`infra III.C.1.
`
`Moreover, Copeland’s “concern index” is not computed on a per-flow basis.
`
`Copeland only assigns “concern index” values to suspicious flows. Ex. 1007
`
`[Copeland] 7:57-61. In comparison, the ’593 patent discloses computing a badness
`
`factor on a per-flow basis that is not devoted to “suspicious activity.”
`
`Four-Steps Whitepaper
`3.
`Exhibit 1006 is a paper entitled “Four Steps to Application Performance
`
`Across the Network with Packeteer’s PacketShaper®” (the “Four-Steps
`
`Whitepaper”). This secondary reference is relied on by Petitioner as alleged prior
`
`art under 35 U.S.C. § 102(e) in combination with Yung with respect to ground 3.
`
`As explained below, Petitioner has not shown the Four-Steps Whitepaper
`
`was publicly available sufficient to qualify as a “printed publication” under 35
`
`U.S.C. § 102(e). See infra § III.D.1. Even assuming, arguendo, the Four-Steps
`
`Whitepaper had been shown to be available IPR prior art, it does not teach
`
`“behavioral statistics about dropped and non-dropped packets of a flow” as
`
`required by the ’593 patent, which is the only limitation for which Petitioner cites
`
`it. See infra § III.D.2.
`
`
`
`12
`
`
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`Ye
`4.
`U.S. Patent No. 7,295,516 to Ye, is entitled Early Traffic Regulation
`
`Techniques To Protect Against Network Flooding. Ex. 1008 (“Ye”). Ye is a
`
`secondary reference relied on as alleged prior art under 35 U.S.C. § 102(e) in
`
`combination with Yung and Copeland with respect to ground 4.
`
`Ye is offered to allegedly disclose that a penalty can be enforced on a flow
`
`based on a “congestion condition” as claimed. However, as Petitioner
`
`acknowledges, the “congestion” identified in Ye is a “saturation condition.” Pet. at
`
`69. This saturation condition described in Ye is one where the router is
`
`overwhelmed on the receiving link of the router by packets: “The traffic
`
`monitoring routine 216 monitors to detect when the rate at which packets are
`
`received . . . corresponding to the buffering capacity of the router 200. This
`
`condition corresponds to saturation at the router 200.” Ex. 1008 [Ye] 5:56-61.
`
`This “saturation condition” described in Ye is not a “congestion condition” as
`
`disclosed and claimed by the ’593 patent. See infra § III.F.
`
`
`
`13
`
`
`
`III.
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`PETITIONER FAILS TO SHOW A REASONABLE LIKELIHOOD
`THAT ANY OF THE CLAIMS ARE DISCLOSED AND/OR
`RENDERED OBVIOUS (ALL GROUNDS, ALL CLAIMS).
`A. The Petition Fails To Sufficiently Demonstrate That Storing The
`“Behavioral Statistics” For A Flow As Claimed Is Disclosed Or
`Made Obvious By Any Combination (All Grounds, Claims 1–44).
`
`Every independent claim of the ’593 patent recites storing behavioral
`
`statistics for individual flows. Ex. 1001 [’593 Patent] cls. 1-5, 9, 25, 29.
`
`Claim 1 of the ’593 patent recites “said flow block being configured to store
`
`payload-content-agnostic behavioral statistics pertaining to said flow.” Id. at cl.
`
`1. Independent Claim 2 recites “said flow block being configured to store
`
`payload-content agnostic behavioral statistics about said flow.” Id. at cl. 2.
`
`Independent Claim 3 recites “a second field containing data representing payload-
`
`content-agnostic behavioral statistics about dropped and non-dropped packets of a
`
`flow.” Id. at cl. 3. Independent Claims 4, 5 and 9 all share the common recitation
`
`of “maintaining a set of behavioral statistics for the flow.” Id. at cls. 4, 5, 9.
`
`Claims 25 and 29 recite “means for maintaining a set of behavioral statistics for
`
`the flow.” Id. at cls. 25, 29.
`
`Yung, standing alone or in combination, is relied on in each ground to show
`
`alleged “storing of behavioral statistics” as claimed. It is therefore fatal to
`
`
`
`14
`
`
`
`Petitioners’ challenge that Yung does not disclose storage of behavioral statistics
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`as claimed.
`
`Petitioner alleges that “Yung discloses this limitation” because supposedly,
`
`“[f]or example, Yung tracks ‘various measurement values in the control block
`
`object that characterize the flow (e.g., last packet time, packet count, byte count,
`
`etc.).” Pet. at 25 (citing Ex. 1005 [Yung] 25:8-11). Contrary to this assertion,
`
`however, Yung’s “flow object” (which Petitioner alleges is a flow block) does not
`
`store the behavioral statistics for an individual flow as the challenged claims of the
`
`’593 patent recite. Instead, Yung teaches the “various measurement values” are
`
`stored “on an aggregate and/or per-traffic-class basis,” and does not even mention,
`
`let alone disclose or render obvious, storing them for individual flows. Ex. 1005
`
`[Yung] 7:49-51 (“Traffic monitoring device 30 may also monitor and store one or
`
`more measurement variables on an aggregate and/or per-traffic-class basis.”).
`
`In contrast, the ’593 patent’s claims expressly recite that the flow block be
`
`configured to store behavioral statistics belonging to each individual flow. Ex.
`
`1001 [’593 Patent] 6:5-24 (“As the packets of a flow are processed, a set of
`
`behavioral statistics are maintained (block 302 of FIG. 3) for the flow. … These
`
`behavioral statistics are stored by the line card 202 in a flow block associated with
`
`
`
`15
`
`
`
`the flow, and are updated as information belonging to the flow are processed; thus,
`
`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
`
`
`
`these behavioral statistics provide an up to date reflection of the flow’s behavior.”).
`
`Accordingly, no reasonable likelihood is shown that Yung teaches or
`
`discloses that its alleged flow block is configured to store behavioral statistics
`
`pertaining to individual flows. This fact alone is sufficient to bar institution on
`
`ground 1. See 35 U.S.C. § 314(a).
`
`B.
`
`The Petition Fails To Sufficiently Demonstrate That The Yung
`Combinations Disclose Use Of A “Single Router” In The Manner
`Claimed (Ground I, Claims 1, 2, 6-7; Ground IV, Claim 8).
`
`Independent claims 1 and 2 each recite the use of a single router. These
`
`method claims recite, inter alia:
`
`•
`
`“creating a flow block as the first p
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
