Filed: May 23, 2023
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC.,
`Petitioner,
`
`v.
`
`SMART MOBILE TECHNOLOGIES LLC,
`Patent Owner.
`____________
`
`Case IPR2022-01222
`Patent 8,982,863 B1
`____________
`
`
`PATENT OWNER’S RESPONSE
`UNDER 37 C.F.R. § 42.120
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC.,
`Petitioner,
`
`v.
`
`SMART MOBILE TECHNOLOGIES LLC,
`Patent Owner.
`____________
`
`Case IPR2022-01222
`Patent 8,982,863 B1
`____________
`
`
`PATENT OWNER’S RESPONSE
`UNDER 37 C.F.R. § 42.120
`
`
`
`
`
`III.
`
`V.
`
`I.
`II.
`
`TABLE OF CONTENTS
`INTRODUCTION ........................................................................................... 1
`PETITIONER FAILS TO PROVE THAT AHOPELTO DISCLOSES OR
`RENDERS OBVIOUS A “SERVER” AND A “NETWORK SWITCH
`BOX” (CLAIMS 1, 14) ................................................................................... 4
`A.
`Petitioner Fails to Identify a “Server” Separate and Distinct From
`a “Network Switch Box” ....................................................................... 4
`Petitioner’s Alternative “Access Server” Argument Also Fails ......... 10
`B.
`PETITIONER FAILS TO SHOW A SERVER “IN COMMUNICATION
`WITH” A PLURALITY OF NETWORK DEVICES (CLAIM 1) ...............14
`IV. PETITIONER FAILS TO ESTABLISH THAT THE ALLEGED
`“SERVER FUNCTIONALITY” IS CONFIGURED FOR
`COMMUNICATION WITH A SECOND NETWORK SWITCH BOX
`(CLAIM 14) ...................................................................................................17
`PETITIONER’S COMBINATION DOES NOT DISCLOSE OR
`RENDER OBVIOUS CLAIM 4....................................................................19
`VI. THE ALLEGED COMBINATION DOES NOT TEACH OR
`SUGGEST CLAIM 6 ....................................................................................27
`VII. THE ALLEGED COMBINATION FAILS TO TEACH OR SUGGEST
`AN OPTIMAL PATH FOR A SPECIFIC DATA STREAM FLOW
`(CLAIM 19) ...................................................................................................30
`VIII. THE PETITION FAILS TO ESTABLISH THE LIMITATIONS OF
`CLAIMS 4–6, AND 24 UNDER ITS “ACCESS SERVER” THEORY. .....32
`IX. PETITIONER FAILS TO SHOW HARDWICK OR SOOD IS
`ANALOGOUS ART. ....................................................................................36
`THE PETITION CANNOT ESTABLISH OBVIOUSNESS FOR ANY
`DEPENDENT CLAIMS ................................................................................38
`XI. CONCLUSION ..............................................................................................38
`
`
`
`X.
`
`– i –
`
`
`
`TABLE OF AUTHORITIES
`
`Cases
`Apple Inc. v. ContentGuard Holdings, Inc.,
`IPR2015-00449, Paper 10 (PTAB Jul. 15, 2015) ................................................37
`Apple Inc. v. Smart Mobile Techs. LLC,
`IPR2022-00808, Paper 34 (PTAB Jan. 20, 2023) ................................................25
`Apple Inc. v. Smart Mobile Techs. LLC,
`IPR2022-00979, Paper 17 (PTAB Mar. 29, 2023) ..............................................25
`Apple Inc. v. Smart Mobile Techs. LLC,
`IPR2022-00980, Paper 21 (PTAB Mar. 29, 2023) ..............................................25
`Apple Inc. v. Smart Mobile Techs. LLC,
`IPR2022-00981, Paper 20 (PTAB Mar. 29, 2023) ..............................................25
`Apple Inc. v. Smart Mobile Techs. LLC,
`IPR2022-00982, Paper 17 (PTAB Mar. 29, 2023) ..............................................25
`Arendi S.A.R.L. v. Apple Inc.,
`832 F.3d 1355 (Fed Cir. 2016) ..................................................................... passim
`Becton, Dickinson & Co. v. Tyco Healthcare Grp., LP,
`616 F.3d 1249 (Fed. Cir. 2010) .............................................................................. 4
`Boart Longyear Ltd. v. Australian Mud Co., Pty Ltd.,
`IPR2019-01129, Paper 26 (PTAB Nov. 20, 2020) ..............................................19
`
`Gamber-Johnson LLC v. Nat’l Prod.s Inc.,
`IPR2021-01159, Paper 7 (PTAB Jan. 3, 2022) ....................................................12
`Harmonic Inc. v. Avid Tech., Inc.,
`815 F.3d 1356 (Fed. Cir. 2016) .................................................................... passim
`In re Bigio,
`381 F.3d 1320 (Fed. Cir. 2004) ............................................................................36
`In re Klein,
`647 F.3d 1343 (Fed. Cir. 2011) ............................................................................36
`
`– ii –
`
`
`
`In re Nat. Alts., LLC,
`659 Fed. App’x. 608 (Fed. Cir. 2016) ..................................................................37
`Intelligent Bio-Systems, Inc. v. Illumina Cambridge, Ltd.,
`821 F.3d 1359 (Fed. Cir. 2016) ............................................................................37
`Motherson Innovations Co., Ltd. V. Magna Mirrors of Am.,
`IPR2020-00777, Paper 22 (PTAB Oct. 5 2021) ..................................................10
`Netflix Inc. v. DivX, LLC,
`IPR2020-00646, Paper 47 (PTAB Sept. 9, 2021) ................................................36
`Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co. Matal,
`868 F.3d 1013 (Fed. Cir. 2017) ..................................................................... 14, 25
`Packers Plus Energy Servs. Inc. v. Baker Hughes Oilfield Operation, LLC,
`IPR2016-01000, Paper 34 (PTAB Nov. 6, 2017) ................................................10
`Parrot S.A., et al. v. Drone Tech., Inc.,
`IPR2014-00730, Paper 27 (PTAB Oct. 20, 2015) ...............................................37
`Perfect Web, Techs., Inc. v. InfoUSA, Inc.,
`587 F.3d 1324 (Fed. Cir. 2009) ..................................................................... 16, 26
`SCHOTT Gemtron Corp. v. SSW Holding Co., Inc.,
`IPR2013-00358, Paper 106 (PTAB Aug. 20, 2014) ............................................36
`TQ Delta, LLC v. CISCO., Inc.,
`942 F.3d 1352 (Fed. Cir. 2019) ............................................................................19
`Wasica Fin. GmbH v. Continental Auto. Sys., Inc.,
`853 F.3d 1272 (Fed. Cir. 2017) ............................................................... 26, 29, 37
`Workspot, Inc. v. Citrix Systems, Inc.,
`IPR2019-01002, Paper 39 (PTAB Nov. 17, 2020) ..............................................10
`Xerox Corp. v. Bytemark, Inc.,
`IPR2022–00624, Paper 9 (PTAB Aug. 24, 2022) ...............................................11
`Statutes
`35 U.S.C. § 103 ........................................................................................................31
`
`– iii –
`
`
`
`Regulations
`Regulations
`37 C.F.R. § 42.104(b) ..............................................................................................16
`37 CAEL. § 42.104(b) ceescccsscsesescccsssssessecsssssessccessssesseceessseseecessesnsesessnsnseseceensnsesseceeen 16
`
`– iv –
`_jyv—
`
`
`
`INTRODUCTION
`I.
`Petitioner fails to prove the ’863 claims unpatentable for multiple reasons.
`
`Among other things, Petitioner fails to establish that Ahopelto discloses a distinct
`
`“first server” and “network switch box,” as required by claims 1 and 14. Instead,
`
`Petitioner manufactures two concepts not recited in the claims—a “server
`
`functionality” and a “routing functionality”—and purports to find them separately
`
`in Ahopelto’s GGSN. However, as Petitioner’s argument makes clear and its expert
`
`admits, Petitioner’s “server functionality” performs a function that is an element of
`
`the “routing functionality.” Thus, the Petition cannot establish a separate “server”
`
`and “network switch box” as the claims require.
`
`Petitioner also fails to prove that its alleged combination renders obvious a
`
`server “in communication with” a plurality of network devices” as recited by claim
`
`1. Petitioner’s challenge hinges on the unsupported and incorrect contention that
`
`communication with a Ahopelto’s GGSN, in general, constitutes communication
`
`with all internal parts and functions of the GGSN (such as Petitioner’s made-up
`
`“server functionality”). Here, Petitioner takes the opposite approach from its “server
`
`functionality” theory, asserting that all of the components and functionalities
`
`represented by the GGSN should be considered as a single unit. In fact, the purported
`
`“server functionality” would not be “in communication with” any network devices
`
`– 1 –
`
`
`
`under Petitioner’s theory. Petitioner cannot prove claim 1 obvious without this faulty
`
`argument, so the challenge to claim 1fails.
`
`Similarly, for claim 14, Petitioner fails to show that the prior art includes a
`
`server “configured for communication with the first network switch box and the
`
`second network switch box.” Petitioner’s challenge relies, again, on the same faulty
`
`assumption that communication with all parts of a GGSN can be shown by
`
`communication with the GGSN in general, so the challenge to claim 14 fails as well.
`
`Petitioner’s “Access Server” challenge to claims 1 and 14 also fails. Petitioner
`
`fails to provide the reasoned explanation that is a prerequisite to using general
`
`knowledge about the purported “Access Server” to fill a missing claim limitation (“a
`
`server”). Petitioner also fails to explain how its “Access Server” meets all the
`
`limitations of claims 1 and 14. Petitioner’s incomplete and unexplained challenge
`
`fails to render claim 1 or claim 14 obvious.
`
`Petitioner also fails to establish that claim 4 is obvious for multiple reasons.
`
`Petitioner argues that Ahopelto teaches a first network switch box that transmits data
`
`packets “using dynamically changing network paths,” as recited by claim 4. But
`
`Petitioner cannot show, and does not even try to show, that the first network switch
`
`box receives data packets “using dynamically changing network paths,” which is
`
`required by claim 4.
`
`– 2 –
`
`
`
`Petitioner also cannot show, for claim 4, that Ahopelto renders obvious a
`
`server configured to control a network flow such that a first network switch box
`
`receives data packets using dynamically changing paths. Petitioner’s argument is
`
`based only on data transmissions of the alleged first network switch box. Thus,
`
`Petitioner cannot meet all the limitations of claim 4.
`
`Petitioner’s argument on claim 4 also fails because the Petition does not
`
`establish dynamically changing network paths. Petitioner’s argument here is cursory
`
`and conclusory, and fails to satisfy its burden of proof.
`
`Petitioner’s challenge to claim 6 is also deficient because Ahopelto does not
`
`teach or suggest a “switch between a first network path and a second network path
`
`in response to an application.” Petitioner concedes the alleged switch depends on the
`
`protocol of a data packet. An alleged switch that depends on the protocol of a data
`
`packet does not render obvious “a switch in response to an application” as claim 6
`
`requires.
`
`Finally, Petitioner’s argument on claim 19 fails for multiple reasons. Claim
`
`19 recites “software that defines the optimal data path between at least two or more
`
`network switch boxes for a specific data stream flow.” Petitioner fails to address the
`
`“specific data stream flow” limitation, and Ahopelto does not teach or suggest that
`
`limitation. Petitioner also fails to show “software that defines the optimal data path.”
`
`Ahopelto teaches routing one hop at a time, not a software-defined optimal data path.
`
`– 3 –
`
`
`
`For these reasons, and those below, Patent Owner requests that the Board find
`
`Petitioner fails to demonstrate that any of the challenged claims are unpatentable.
`
`II.
`
`PETITIONER FAILS TO PROVE THAT AHOPELTO
`DISCLOSES OR RENDERS OBVIOUS A “SERVER” AND A
`“NETWORK SWITCH BOX” (CLAIMS 1, 14)
`Petitioner Fails to Identify a “Server” Separate and Distinct
`A.
`From a “Network Switch Box”
`Claim 1 recites “a first server” and “a network switch box.” Ex. 1001, 12:1–
`
`10. Claim 14 recites “a server” and “a first network switch box.” Id., 13:6–10; 14:6–
`
`11. Because the “server” and the “network switch box” are recited separately, they
`
`represent two separate and distinct elements of the claimed invention. Becton,
`
`Dickinson & Co. v. Tyco Healthcare Grp., LP, 616 F.3d 1249, 1254 (Fed. Cir. 2010).
`
`Petitioner attempts to satisfy these distinct limitations by mapping them to
`
`different purported functions of Ahopelto’s GPRS gateway support node (“GGSN”).
`
`Petitioner maps the “first server” of claim 1 to a purported “server functionality”
`
`located in the GGSN. Pet. 33. Similarly, Petitioner maps a “server” of claim 14 to
`
`the GGSN’s purported “server functionality.” Id., 69. Petitioner ties this purported
`
`“server functionality” to the function of checking the protocol of an encapsulated
`
`packet received by the GGSN for forwarding the packet. Id.
`
`Petitioner maps the “network switch box” of claim 1 to a purported “routing
`
`functionality,” again in the GGSN. Id., 38–39. The “first network switch box” of
`
`claim 14 is also mapped to the alleged “routing functionality.” Id., 62. The purported
`
`– 4 –
`
`
`
`“routing functionality . . . connects data packet networks to each other, such as other
`
`operators’ GPRS systems and ‘an inter-operator backbone network, IP network, or
`
`X.25 network.’” Id., 38. Although Petitioner is not entirely clear, it appears that this
`
`“routing functionality” involves “decid[ing] to which output port a packet will be
`
`sent.” Id., 39. However, the Petition fails to establish that the purported “server
`
`functionality” and “routing functionality” are two separate and distinct elements.
`
`Petitioner’s own evidence and arguments demonstrate that the alleged “server
`
`functionality” and “routing functionality” are not separate and distinct so they cannot
`
`teach or suggest the separate “server” and “network switch box” of the claims.
`
`Among other things, the Petition assigns the same operations to the alleged “server
`
`functionality” and the “routing functionality.” For example, according to the
`
`Petition, the “server functionality” determines how to forward packets. Pet. 24
`
`(citing Ex. 1005, 7:35–42, 8:40–41 and 10:22–23, 48–50, 56–59). The Petition
`
`alleges the “routing functionality” does the same thing. Pet. 40 (describing the
`
`“routing functionality” as “‘decid[ing] to which output port a packet will be sent”’)
`
`(quoting Ex. 1013, 14:1–3)). And, despite opining in his declaration that “server
`
`functionality” determines how to forward a packet, Ex. 1003, ¶80, Dr. Jensen
`
`testified at his deposition that deciding where to forward a packet is an essential part
`
`of routing. Ex. 2005, [Jensen Deposition] 46:22–47:1. Thus, according to
`
`Petitioner’s expert, reading packets is an essential part of the alleged “network
`
`– 5 –
`
`
`
`switch box” of claim 1 and 14. Yet, Petitioner points to the same thing to also teach
`
`the “server” of the claims. Pet. 24 (“Ahopelto renders obvious ‘servers,’ because
`
`Ahopelto discloses a GPRS support node (‘GGSN’) with functionality that
`
`determines how to forward a packet ….”) (emphasis added), 69. Petitioner cannot
`
`have it both ways.
`
`Also inconsistent with its position that the alleged “routing functionality” and
`
`“server functionality” are separate, Petitioner cites the same content to allege that
`
`the purported “server functionality” teaches a “server” and to allege that the
`
`purported “routing functionality” teaches a “network switch box.” For example, the
`
`Petition alleges that a connection between the “server functionality” and an IP
`
`enabled network is taught by Ahopelto through the disclosure that the GGSN
`
`connects one operator in the system with other networks. Pet. 34 (citing Ex. 1005,
`
`6:16–19). The Petition also alleges that the very same passage discloses that the
`
`purported “routing functionality” is connected to different networks. Pet. 43 (citing
`
`Ex. 1005, 6:16–19; Ex. 1006, 5:15–24; Ex. 1003 ¶¶132–33). In another example,
`
`Petitioner cites Ahopelto at 7:35–42 and 8:40–41 to demonstrate a “server
`
`functionality.” Pet. 24. But then Petitioner uses the same passages to demonstrate
`
`the alleged “routing functionality.” Pet. 43 (referencing Ahopelto at 7:21–42 to
`
`illustrate “routing functionality of the GGSN”), 43–44 (referencing Ahopelto at
`
`8:27–45 to demonstrate “routing functionality of the GGSN”).
`
`– 6 –
`
`
`
`Ahopelto, itself, makes no distinction between any “server functionality” and
`
`“routing functionality” of its GGSN, let alone a “server” or “network switch box” as
`
`recited by the claims. In fact, Ahopelto never mentions the term “server
`
`functionality” or the term “routing functionality” at all. Ahopelto does not even
`
`recognize these alleged functionalities so it cannot teach any distinction between
`
`them. Petitioner makes no attempt to explain, much less support, its assertion that
`
`the alleged functionalities are separate and distinct. See Pet. 38.
`
`Petitioner alleges that “routing functionality would be implemented as a
`
`logical entity on a shared platform or via separate hardware with the server
`
`functionality for controlling how received packets are forwarded based on protocol
`
`type.” Pet. 39 (citing Ex. 1010, 84; Ex. 1022, 12). This does Petitioner no good—
`
`regardless of how the purported “functionalities” are implemented they are still the
`
`same functionalities. Moreover, the cited materials fail to teach or suggest that the
`
`alleged “server functionality” and “routing functionality” are implemented as
`
`separate logical entities, or as separate hardware.
`
`With respect to hardware, Petitioner relies entirely on attorney argument for
`
`the contention that alleged “routing functionality” is implemented on hardware
`
`separate from alleged “server functionality.” Petitioner cites to the declaration of its
`
`expert, Dr. Jensen, for support here. Pet. 39. But the cited portion of the declaration
`
`only addresses software; it says nothing about implementing any “routing
`
`– 7 –
`
`
`
`functionality” on hardware separate from that on which the alleged “server
`
`functionality” is implemented. Ex. 1003, ¶123. Given that “functionality that
`
`determines how to forward a packet” (the alleged “server functionality”) is
`
`something that a POSITA would expect to be implemented on a router, a POSITA
`
`would not expect to implement it in a separate piece of hardware. Ex. 2008, ¶ 41.
`
`Petitioner also cites to Granholm (Ex. 1010, 84) and Stallings (Ex. 1022, 12) for
`
`support, but both references are silent as to implementing any “routing functionality”
`
`on hardware separate from an alleged “server functionality.” Ex. 2008, ¶ 41.
`
`Regarding software, Dr. Jensen cited Granholm and Stallings to support his
`
`contention that “the GGSN’s server functionality, access server functionality, and
`
`routing functionality, would be implemented as different logical (e.g., software)
`
`entities on a shared platform.” Ex. 1003, ¶123 (citing Ex. 1010, 84; Ex. 1022, 12).
`
`But during his deposition Dr. Jensen acknowledged that Granholm does not show a
`
`“routing functionality” implemented separately from a “server functionality” Ex.
`
`2005, 56:16–57:2. (“It doesn’t teach, period how it is implementing things, …”)
`
`(emphasis added). Dr Jensen further conceded that Stallings does not “teach
`
`anything about a GPRS system.” Id., 57:19–58:1. And, despite testifying in his
`
`declaration that “routing functionality” and “server functionality” would be
`
`implemented as different logical entities, Ex. 1003, ¶123, Dr. Jensen could not
`
`– 8 –
`
`
`
`explain how any reference showed a separate “routing functionality” and a separate
`
`“server functionality.”
`
`Okay. But sitting here today, you can’t point to any reference that you
`cited in your declaration that shows implementing the server
`functionality and the routing functionality of a GGSN as different
`entities; is that correct?
`…
`THE WITNESS: Again, I -- I think what I’m struggling with is your
`implementing them as -- separately as different entities. Obviously
`all of these things work together in a system. The system requires those
`different
`functionalities. You know, Ahopelto
`talks about
`implementing those functionalities -- he doesn’t talk about those
`specific ones, but the GGSN, you know, functionalities along with
`other functionalities on single computer. So I’m struggling with the “as
`different entities” sort of language, exactly what that means. Obviously
`they’re all there working together.
`
`Ex. 2005, 63:21–64:17 (emphasis added).
`Petitioner’s expert could not explain how the alleged “server functionality”
`
`and “routing functionality” are separate and distinct, and Petitioner has no other
`
`support for its contention that Ahopelto’s GGSN includes a “server functionality”
`
`and a separate “routing functionality” that render obvious the “server” and “network
`
`switch box” of the claims. Thus, Petitioner fails to establish that Ahopelto discloses
`
`two separate and distinct “routing” and “server” functionalities to satisfy the distinct
`
`“server” and “network switch box” limitations as the claims require. A POSITA
`
`– 9 –
`
`
`
`would not view those alleged functionalities to be separate in Ahopelto’s GGSN. Ex.
`
`2008, ¶¶34–43. Petitioner therefore fails to meet its burden to show that the claimed
`
`invention was obvious. Workspot, Inc. v. Citrix Systems, Inc., IPR2019-01002, Paper
`
`39, 46–50 (PTAB Nov. 17, 2020) (rejecting Petitioner’s challenge because Petitioner
`
`mapped two claim elements (a “content server” and “web server”) to the same
`
`component of a prior art reference without proving they were distinct); Motherson
`
`Innovations Co., Ltd. V. Magna Mirrors of Am., IPR2020-00777, Paper 22, 50
`
`(PTAB Oct. 5 2021) (rejecting challenge to claim when evidence cited by Petitioner,
`
`including expert testimony, was unsupported attorney argument); Packers Plus
`
`Energy Servs. Inc. v. Baker Hughes Oilfield Operation, LLC, IPR2016-01000, Paper
`
`34, 26 (PTAB Nov. 6, 2017) (rejecting argument as conclusory attorney arguments
`
`when Petitioner failed to explain the significance of the evidence relied upon).
`
`B.
`
`Petitioner’s Alternative “Access Server” Argument Also
`Fails
`The Petition contends that, in addition to the purported “server functionality,”
`
`an alleged “Access Server” of a GGSN also teaches the recited “server.” But nothing
`
`in Ahopelto references an “access server.” Petitioner cites Ex. 1006 (Lager), Ex.
`
`1010 (Granbohm), and Ex. 1011 (Forslow) for this alleged disclosure, Pet. 25, but
`
`these references are not a part of Petitioner’s alleged combination. Petitioner fails to
`
`provide any explanation or analysis as to why a POSITA would have been motivated
`
`to look to Lager, Granbohm, or Forslow to arrive at the claimed invention.
`
`– 10 –
`
`
`
`In essence, Petitioner’s argument relies on nothing more than the general
`
`knowledge of a POSITA to supply a critical missing element. But this is only
`
`permissible when “supported by evidence and a reasoned explanation.” Arendi
`
`S.A.R.L. v. Apple Inc., 832 F.3d 1355, 1363 (Fed Cir. 2016). Here, Petitioner makes
`
`no attempt at a reasoned explanation. Petitioner, simply asserts that it would have
`
`been obvious that Ahopelto’s GGSNs include an “Access Server.” Pet. 33–34 (citing
`
`Ex. 1006, 11:51–55; Ex. 1010, 87; Ex. 1011, 15:10–18). Petitioner’s conclusory
`
`statements do not satisfy the requirement to provide a reasoned explanation and the
`
`Board should reject their “Access Server” argument. Arendi, 832 F.3d at 1366;
`
`Xerox Corp. v. Bytemark, Inc., IPR2022-00624, Paper 9, 15–16 (PTAB Aug. 24,
`
`2022) (precedential) (stating that conclusory expert testimony is “particularly
`
`problematic in cases where, like here expert testimony is offered not simply to
`
`provide a motivation to combine prior-art teachings, but to supply a limitation
`
`missing from the prior art”).
`
`Regardless, this alternative “Access Server” theory cannot save Petitioner’s
`
`argument because it is undeveloped and fails to connect all the relevant claim
`
`limitations to the “Access Server.” Specifically, Limitation 1[d] recites “said server
`
`configured with a controller in communication with a plurality of network devices.”
`
`Yet, the Petition fails to explain how the “Access Server” would meet this limitation.
`
`Pet. 36–37. The Petition’s relevant argument about this limitation only addresses the
`
`– 11 –
`
`
`
`“server functionality.” Thus, the Petition fails to articulate a viable invalidity theory
`
`whereby the alleged “Access Server” satisfies the recited “server” limitation.
`
`Petitioner bears the burden “to show with particularity why the patent it challenges
`
`is unpatentable.” Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363–63 (Fed.
`
`Cir. 2016); see also 37 C.F.R. § 42.104(b) (requiring a petition for inter partes review
`
`to identify how the challenged claim is to be construed and where each element of
`
`the claim is found in the prior art patents or printed publications relied upon).
`
`Petitioner fails to meet that burden here.
`
`As another example, the preamble of claim 1 (Limitation 1[pre]) recites a
`
`“system for controlling Internet Protocol (IP) based cellular phones, networks, or
`
`network switches by servers.” Petitioner concludes in a single sentence that the
`
`alleged “Access Server” provides an example of the claimed server. Pet. 24–25. But
`
`the Petition never returns to this theory and fails to connect the alleged “Access
`
`Server” with any other arguments about the preamble. Once again, Petitioner fails
`
`to meet its burden. Gamber-Johnson LLC v. Nat’l Prod. Inc., IPR2021-01159, Paper
`
`7, 2, 39 (PTAB Jan. 3, 2022) (citing Harmonic, 815 F.3d at 1363).
`
`The same problems exist for claim 14. Limitation 14[e] requires the “server
`
`is configured for communication with the first network switch box and the second
`
`network switch box.” Pet. 69. Petitioner relies on its argument from claim 1 to
`
`establish that Ahopelto’s GGSN renders obvious an “Access Server” for claim 14.
`
`– 12 –
`
`
`
`Id. But, as explained above, Petitioner’s argument relies on the general knowledge
`
`of a POSITA to supply a critical missing element, and the Petition fails to provide
`
`the required reasoned explanation. Arendi, 832 F.3d at 1366.
`
`The Petition also fails to adequately explain how the “Access Server” meets
`
`all the limitations of claim 14. Specifically, the Petition lacks any arguments or
`
`analysis about how the alleged “Access Server” would be in communication with
`
`the alleged “second network switch box” of Limitation 14[e]. Pet. 69. The Petition
`
`merely asserts, without explanation, that the alleged “Access Server” is in
`
`communication with the GGSN’s routing functionality (the alleged “first network
`
`switch box”). Petitioner never addresses communication with the alleged “second
`
`network switch box” under the “Access Server” argument. Petitioner’s conclusory
`
`statement does not meet its burden to establish obviousness. Arendi, 832 F.3d at
`
`1366. Thus, Petitioner fails to establish invalidity of claim 14 under the “Access
`
`Server” theory.
`
`– 13 –
`
`
`
`III. PETITIONER FAILS TO SHOW A SERVER “IN
`COMMUNICATION WITH” A PLURALITY OF NETWORK
`DEVICES (CLAIM 1)
`Limitation 1[d] recites a “server configured with a controller
`
`in
`
`communication with a plurality of network devices.” Pet. 35.1 To meet this
`
`limitation, Petitioner argues that the “server functionality” is in communication with
`
`network devices because the GGSN—in general—is in communication with a
`
`plurality of network devices.2 Id., 36–37. This argument fails, because Petitioner
`
`fails to show that the alleged “server functionality” of the GGSN is “in
`
`communication with” any network device.
`
`
`1 Petitioner asks the Board to construe Limitation 1[d] to mean that the server (rather
`
`than the controller) is in communication with a plurality of network devices. Pet.
`
`11–12. Patent Owner does not concede that Petitioner’s construction is correct. But
`
`Petitioner’s arguments fail under any construction so it is not necessary to construe
`
`the term to resolve this IPR. Nidec Motor Corp. v. Zhongshan Broad Ocean Motor
`
`Co. Matal, 868 F.3d 1013, 1017 (Fed. Cir. 2017).
`
`2 Petitioner’s backup argument where Limitation 1[d] requires a “controller” in
`
`communication with a plurality of network devices also fails for the same reasons
`
`set forth herein for the “server functionality.”
`
`– 14 –
`
`
`
`Petitioner makes no attempt to explain why communication with the GGSN,
`
`in general, equates to communication with all parts of the GGSN, including the
`
`alleged “server functionality.” In fact, if the “routing functionality” and “server
`
`functionality” are separate and distinct as alleged by Petitioner, then the network
`
`devices would only need to communicate with the “routing functionality” and not
`
`the “server functionality.” Ex. 2008, ¶45. Whereas above, Petitioner posits a
`
`spurious distinction between its made-up “server functionality” and “routing
`
`functionality,” here Petitioner seeks to eliminate the distinction between the “routing
`
`functionality” and “server functionality” to meet Limitation 1[d]. Petitioner cannot
`
`have it both ways. See Workspot, IPR2019-01002, Paper 39, 46–50 (criticizing
`
`Petitioner’s position that a URL identifies a “content server” because the URL points
`
`to “web server” as inconsistent with Petitioner’s allegations that the “content server”
`
`is distinct from the “web server”).
`
`Petitioner’s position is based on a faulty syllogism. Communication with a
`
`GGSN does not imply communication with all component parts of the GGSN. Ex.
`
`2008, ¶45. Petitioner repeatedly asserts that the purported “server functionality”
`
`controls how to forward a packet, Pet. 24, 33, and argues that the “server
`
`functionality” is in communication with the “router functionality” to accomplish
`
`this, Pet. 69. As such, there would be no need for the alleged “server functionality”
`
`– 15 –
`
`
`
`to communicate with anything other than the alleged “routing functionality” under
`
`Petitioner’s theory. Id.
`
`The only “evidence” that Petitioner relies on to establish that the alleged
`
`“server functionality” communicates with other network devices is the ipse dixit of
`
`its expert. See Pet. 36–37 (citing Ex. 1003, ¶¶114–115). Like the Petition, Dr. Jensen
`
`claims that communication with the GGSN establishes communication with the
`
`“server functionality.” Ex. 1003, ¶¶114–115. Dr. Jensen never explains why the
`
`alleged “server functionality” of the GGSN communicates with other network
`
`devices. Id. Ahopelto itself never discloses the alleged “server functionality” so it is
`
`critical that the Petitioner explain how the supposed “server functionality”
`
`communicates with other network devices. Yet Petitioner never even tries. The
`
`Petitioner bears the burden to prove unpatentability, and it cannot meet that burden
`
`with conclusory, unsupported arguments. Obviousness requires “a reasoned
`
`explanation that avoids conclusory generalizations.” Arendi, 832 F.3d at 1366
`
`(quoting Perfect Web, Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir.
`
`2009)).
`
`The Board should reject Petitioner’s conclusory and unsupported contention
`
`that that the purported “server functionality” is in communication with a plurality of
`
`network devices.
`
`– 16 –
`
`
`
`IV.
`
`PETITIONER FAILS TO ESTABLISH THAT THE ALLEGED
`“SERVER FUNCTIONALITY” IS CONFIGURED FOR
`
`COMMUNICATION WITH A SECOND NETWORK SWITCH
`BOX (CLAIM 14)
`
`Limitation 14[e] recites “a server, wherein the server is configured for
`
`communication with the first network switch box and the second network switch
`
`29>
`
`.
`
`box.”
`
`Pet. 69. Again, Petitioner
`
`specifically points
`
`to purported “server
`
`functionality” as being the claimed “server.” Jd. Further, the “routing functionality”
`
`of the GGSNis mappedto the “first network switch box,” and the “second network
`
`switch box” is mapped to a separate router of a host network. Jd. This mapping is
`
`illustrated in Petitioner’s annotations of Ahopelto’s Figure 6, shown below.
`
`Second network switch box
`transmitting data
`
`OPERATOR1
`
`.
`
`/
`
`\
`
`|
`BACKBONE
`.
`2\NETWORK X.25,;
`
`/INTRA-OPERATOR
`
`Ex.1005, FIG. 6 (annotated)
`
`First network switch box (of
`GGSN)
`OPERATOR
`(usc{escHers] » rosive
`
`FR-OPERATOR
`ACKBONE
`
`TWORKIP
`
`(Tce OR
`
`BACKBONE
`TWORK CLNP
`
`STATION
`OF
`OPERATOR
`
`Second network *
`switch box
`receiving data
`
`/
`
`=
`
`Second network
`switch box
`
`FIG. 6
`
`—|]7-—
`
`
`
`Pet. 68.
`
`Here, the Petition fails to establish that the purported “server functionality” is
`
`configured for communication with the alleged second network switch box (the
`
`router in the host network). Petitioner claims that the “server functionality” is in
`
`communication with the host network because in some circumstances “a packet
`
`traverses both the router [in the home network] (i.e., ‘the second network switch
`
`box’) and the GGSN (i.e., the ‘first network switch box’ with its routing
`
`functionality) . . .” Id., 69.
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