Filed: October 20, 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 SUR-REPLY
`
`
`
`

`

`B.
`
`B.
`
`C.
`
`III.
`
`V.
`
`I.
`II.
`
`TABLE OF CONTENTS
`INTRODUCTION ........................................................................................... 1
`PETITIONER STILL FAILS TO SHOW ANY DIFFERENCE
`BETWEEN THE ALLEGED “SERVER FUNCTIONALITY” AND
`“ROUTING FUNCTIONALITY” .................................................................. 1
`A.
`The “Server” And “Network Switch Box” Are Distinct
`Components Of The Claims .................................................................. 1
`Petitioner Fails To Show That The Alleged “Server Functionality”
`Is Distinct From The Alleged “Routing Functionality” ........................ 2
`PETITIONER FAILS TO SHOW THE ALLEGED COMBINATION
`MEETS LIMITATION 1[D] UNDER ITS “SERVER
`FUNCTIONALITY” THEORY ...................................................................... 8
`IV. PETITIONER FAILS TO SHOW THE ALLEGED COMBINATION
`MEETS LIMITATION 14[E] UNDER ITS “SERVER
`FUNCTIONALITY” THEORY ....................................................................10
`PETITIONER’S “ACCESS SERVER” THEORY FAILS ...........................12
`A.
`Petitioner Lacks A Reasoned Explanation For A Missing Claim
`Element ................................................................................................ 12
`The Alleged Combination Fails to Teach or Suggest All
`Limitations of Claim 1 Under the “Access Server” Theory ............... 14
`The Alleged Combination Fails To Teach Or Suggest Limitation
`14[e] Under The “Access Server” Theory .......................................... 14
`VI. PETITIONER DOES NOT CONTEST THAT ITS “ACCESS
`SERVER” THEORY IS INAPPLICABLE TO CLAIMS 4-6, 19,
`AND 24 ..........................................................................................................16
`VII. PETITIONER CANNOT REWRITE CLAIM 4 TO FIX THE
`PETITION’S SHORTCOMINGS .................................................................16
`VIII. PETITIONER’S CHALLENGE TO CLAIM 6 FAILS BECAUSE IT
`CANNOT SHOW A SWITCH IN RESPONSE TO AN
`APPLICATION .............................................................................................19
`
`– i –
`
`

`

`IX. AHOPELTO DOES NOT DEFINE AN OPTIMAL DATA PATH
`FOR A SPECIFIC DATA STREAM AS RECITED IN CLAIM 19 ............21
`X. HARDWICK AND SOOD ARE NOT ANALOGOUS ART ......................23
`XI. CONCLUSION ..............................................................................................25
`
`
`
`– ii –
`
`

`

`TABLE OF AUTHORITIES
`
`Cases
`Arendi S.A.R.L. v. Apple Inc.,
`832 F.3d 1355 (Fed Cir. 2016) ...................................................................... 12, 14
`Becton Becton, Dickinson & Co. v. Tyco Healthcare. Group, LP,
`616 F.3d 1249 (Fed. Cir. 2010) ..........................................................................1, 2
`Boart Longyear Ltd. v. Australian Mud Co., Pty Ltd.,
`IPR2019-01129, Paper 26 (PTAB Nov. 20, 2020) ....................................... 11, 20
`Gamber-Johnson LLC v. Nat’l Prod. Inc.,
`IPR2021-01159, Paper 7 (PTAB Jan. 3, 2022) ....................................................16
`Harmonic Inc. v. Avid Tech., Inc.,
`815 F.3d 1356 (Fed. Cir. 2016) ............................................................................16
`Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd.,
`821 F.3d 1359 (Fed. Cir. 2016) ................................................................... 8, 9, 22
`Kinetic Techs., Inc., v. Skyworks Sols., Inc.,
`IPR2014-00690, Paper 8 (PTAB Oct. 23, 2014) .......................................... 10, 13
`Packers Plus Energy Servs. Inc. v. Baker Hughes Oilfield Operation, LLC,
`IPR2016-01000, Paper 34 (PTAB Nov. 6, 2017) .................................................. 8
`PAR Pharm., Inc. v. TWI Pharms., Inc.,
`773 F.3d 1186 (Fed. Cir. 2014) ............................................................................14
`
`Perfect Web, Techs., Inc. v. InfoUSA, Inc.,
`587 F.3d 1324 (Fed. Cir. 2009) ............................................................................13
`Sanofi-Aventis Deutschland GMBH v. Mylan Pharms Inc.,
`66 F.4th 1373 (Fed. Cir. 2023) ............................................................................24
`SIMO Holdings Inc. v. Hong Kong uCloudlink Network Tech. Ltd.,
`983 F.3d 1367 (Fed. Cir. 2021) ............................................................................17
`SupreGuide Corp. v. DirecTV Enterprises, Inc.,
`358 F.3d 870 (Fed. Cir. 2004) ..............................................................................17
`
`– iii –
`
`

`

`TQ Delta, LLC v. CISCO., Inc.,
`942 F.3d 1352 (Fed. Cir. 2019) ............................................................................11
`Traxcell Techs., LLC v. Sprint Commc'ns Co. LP,
`15 F.4th 1121 (Fed. Cir. 2021) ............................................................................21
`
`Univ. of Strathclyde v. Clear-Vu Lighting LLC,
`17 F.4th 155 (Fed. Cir. 2021) ...............................................................................14
`Workspot, Inc. v. Citrix Sys., Inc.,
`IPR2019-01002, Paper 39 (PTAB Nov. 17, 2020) ................................... 2, 3, 6, 7
`Other Authorities
`Antonin Scalia & Bryan A. Garner,
`READING LAW: THE INTERPRETATION OF LEGAL TEXTS § 19 (2012) .......................18
`U.S. Patent Trial and Appeal Board,
`Consolidated Trial Practice Guide 73 (Nov. 2019) .............................................25
`Regulations
`37 C.F.R. § 42.104 ...................................................................................................16
`37 C.F.R. § 42.23 .....................................................................................................25
`
`– iv –
`
`

`

`I.
`
`INTRODUCTION
`In the POR, Patent Owner (“PO”) showed that Petitioner’s challenge to the
`
`’863 Patent fails for multiple reasons. In response, Petitioner rehashes its original,
`
`failed arguments and adds a few new arguments that it did not make in the Petition.
`
`Petitioner still cannot show any difference between the alleged “server functionality”
`
`and alleged “routing functionality.” On limitations 1[d] and 14[e], Petitioner raises
`
`a new “indirect communication” argument, but it is unsupported and cannot fix the
`
`Petition’s shortcomings. Petitioner also seeks to rewrite claim 4, but its argument is
`
`flawed and unsupported. The Reply also fails to identify evidence to support its
`
`positions on claim 6 and 19.
`
`On its “access server” challenge, Petitioner’s Reply ignores critical claim
`
`elements in limitation 1[d] and 14[e]. And the Reply fails to even contest PO’s
`
`showing that the “access server” theory does not apply to claims 4-6, 19, and 24.
`
`II.
`
`PETITIONER STILL FAILS TO SHOW ANY DIFFERENCE
`BETWEEN THE ALLEGED “SERVER FUNCTIONALITY” AND
`“ROUTING FUNCTIONALITY”
`A. The “Server” And “Network Switch Box” Are Distinct
`Components Of The Claims
`Petitioner does not dispute that the “server” and “network switch box” of
`
`claims 1 and 14 are separate and distinct components. Reply, 11-12. Rather,
`
`Petitioner faults PO for relying on Becton because Becton “dealt with a claim that
`
`recited different physical components.” Reply, 11 (citing Becton, 616 F.3d at 1250-
`
`– 1 –
`
`

`

`51). Petitioner argues “there is simply no blanket requirement for separate claim
`
`limitations to be physically separate or distinct from each other.” Reply, 11 (citing
`
`Becton, 616 F.3d at 1254) (emphasis added by Petitioner).
`
`This is a red herring. PO does not contend that the claimed “server” and
`
`“network switch box” must be physically separate. But, to prove obviousness,
`
`Petitioner still must establish the “server” and “network switch box” “as distinct
`
`components, regardless of whether [they] are on a single or multiple physical
`
`machines.” Workspot, Inc. v. Citrix Sys., Inc., IPR2019-01002, Paper 39, 18 (PTAB
`
`Nov. 17, 2020).
`
`B.
`
`Petitioner Fails To Show That The Alleged “Server Functionality”
`Is Distinct From The Alleged “Routing Functionality”
`To meet its burden, Petitioner relies on an imagined distinction between the
`
`alleged “routing functionality” (mapped to the claimed “network switch box”) and
`
`an alleged “server functionality” (mapped to the claimed “server”). Reply, 9.
`
`According to Petitioner, the “server functionality” and the “routing functionality are
`
`both taught by Ahopelto’s GGSN. Pet., 33, 38-39. Although Ahopelto makes no
`
`distinction between “routing functionality” and “server functionality” of a GGSN,
`
`Petitioner tries to extrapolate one from Ahopelto’s teachings. Petitioner’s reasoning
`
`is inaccurate, inconsistent with Ahopelto, and undermined by their own Petition as
`
`explained in the POR. POR, 4-10.
`
`– 2 –
`
`

`

`Petitioner offers more of the same in its Reply. For example, Petitioner argues
`
`that “[t]he ‘server functionality’ determines how to forward [a packet] based on the
`
`protocol type, while the ‘routing functionality’ determines where to forward the
`
`packet (after the appropriate protocol type has been determined and network
`
`identified).” Reply, 13 (citing Ex-1003, ¶77; Pet., 24) (emphasis added). This is a
`
`distinction without a difference.
`
`Ahopelto provides no support for the purported distinction between the
`
`alleged “server functionality” and “routing functionality.” POR, 7. Nor does
`
`Ahopelto contemplate implementing a functionality for “how to forward a packet”
`
`separately from a functionality for “where to forward a packet.” Petitioner fails to
`
`identify any specific element or textual description from Ahopelto differentiating the
`
`alleged functionalities.
`
`Unable to refute these points, Petitioner criticizes PO for a “focus” on
`
`Ahopelto’s express terms. Reply, 13. But the absence of any express differentiation
`
`in Ahopelto weighs against Petitioner’s argument that the alleged functionalities are
`
`distinct. Workspot, IPR2019-01002, Paper 39 at 46-47 (finding two software
`
`components were not distinct, in part, because the petitioner could not identify
`
`specific disclosures differentiating the components).
`
`Furthermore, Ahopelto not only lacks express teachings of a distinction
`
`between the alleged functionalities, Ahopelto demonstrates that the alleged
`
`– 3 –
`
`

`

`distinction does not exist. For example, Petitioner relies on passages that describe
`
`checking the protocol of a data packet for the supposed “server functionality.” Reply,
`
`12 (citing Ex-1005, 7:37-40, 8:40-41, 10:22-23, 48-50, 56-59; Ex-1003, ¶77; Pet.,
`
`24 and Ex-1003, ¶¶208-216; Pet., 64-68). But checking a data packet is part of
`
`Ahopelto’s routing process, not some separate “server functionality.” Indeed, the
`
`passages concerning checking the protocol of a data packet are embedded in sections
`
`of Ahopelto that describe different types of packet routing. Compare Ex-1005, 7:37-
`
`40 with Ex-1005, 7:11-14 (labeling the following content as a description of “routing
`
`of mobile terminated packets”).1
`
`The basic function of the alleged “server functionality” also mirrors the
`
`alleged “routing functionality.” Petitioner’s expert, Dr. Jensen, conceded that
`
`checking a data packet for an address is an essential part of routing. Ex-2005, 46:22-
`
`47:1. Petitioner’s alleged “server functionality” similarly involves checking a field
`
`in the data packet for a protocol. Ex-1005, 7:37-42. Petitioner fails to offer any
`
`reason why checking a data packet’s protocol field would teach or suggest a “server
`
`
`1 Petitioner also cites Ahopelto at 8:40-41, 10:22-23, 10:48-50, and 10:56-59 to
`
`show a packet protocol check. Reply, 12. But each of these examples appears in
`
`context of a discussion about a routing process. Ex-1005, 8:13-15, 10:13-15,
`
`10:39-44.
`
`– 4 –
`
`

`

`functionality” that is separate and distinct from a “routing functionality” when the
`
`“routing functionality” also checks the data packet (to determine an address).
`
`Ahopelto also undermines Petitioner’s claim that checking the protocol of a
`
`packet (the alleged “server functionality”) determines how to forward a packet that
`
`is different from a “routing functionality” determines where to forward a packet.
`
`Indeed, the protocol field of a packet is checked in Ahopelto to determine where to
`
`send the packet. Ex-1005, 3:5-6 (“the packet is routed forward according to the
`
`protocol of the data packet”), 10:7-10 (“Since the GPRS GSN, supports IPX protocol
`
`… it sends the IPX packet via the IPX networks.”), 10:14-19 (“the visited network
`
`does not support the protocol … as a result of which the packet must be routed via
`
`the operator 1”). These teachings illustrate that the functionality that Petitioner
`
`contends determine “how” to forward a packet actually works to determine “where”
`
`to forward a packet thus the “server functionality” and the “routing functionality”
`
`are indistinguishable under Petitioner’s definition of the terms.
`
`Furthermore, Petitioner repeatedly confuses
`
`the supposedly distinct
`
`functionalities. Ex-2008, ¶¶37-38. The POR showed that Petitioner cites the same
`
`content from Ahopelto for both the “routing functionality” and the “server
`
`functionality.” POR, 7.
`
`In Reply, Petitioner asserts that the POR is incorrect. But the Reply not only
`
`fails to explain why the POR is supposedly incorrect, it repeats the same mistake and
`
`– 5 –
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`

`

`uses the same content from Ahopelto for its positions on both the alleged
`
`functionalities. Reply, 12 (citing Ex-1005, 8:40-41 for the “server functionality” and
`
`8:40-45 for the “routing functionality”) (citing Ex-1005, 10:22-23 for “server
`
`functionality” and 10:22-27 for the “routing functionality) (citing Ex-1005, 10:48-
`
`50, 56-59 for the “server functionality” and Ex-1005, 10:48-62 for the “routing
`
`functionality”). Petitioner cites Ahopelto at 8:40-45 to support its “routing
`
`functionality” arguments (Reply, 12, 13-14; Reply, 17) and then cites the exact same
`
`passage to support its “server functionality” argument. Reply, 16-17. Petitioner’s
`
`inability to keep its own positions consistent undermines its argument that that the
`
`alleged functionalities are distinct. Workspot, IPR2019-01002, Paper 39 at 48.
`
`The Petition’s dependent-claim positions also undermine its argument that the
`
`alleged “server functionality” is distinct from the “routing functionality.” Petitioner
`
`alleges that the “server functionality” is distinct because it determines how to
`
`forward a packet while the “routing functionality” determines where to forward a
`
`packet. But for claim 4, Petitioner alleges that the “server functionality” determines
`
`where to send a packet, not how to send a packet, i.e., along a first network path or
`
`a second network path. Pet., 52. To meet claim 3, Petitioner alleges that the “server
`
`functionality” controls where data packets are sent by determining their protocol,
`
`not how to send data packets. Pet., 49. And, for claim 6, Petitioner alleges the “server
`
`functionality [uses] a different network path depending on whether the GGSN
`
`– 6 –
`
`

`

`supports that protocol or not. Pet., 54-55. Petitioner cannot credibly claim that the
`
`“server functionality” is unlike the “routing functionality” because the “routing
`
`functionality” determines where to send a packet while simultaneously arguing that
`
`the “server functionality” controls where to send packets. Workspot, IPR2019-
`
`01002, Paper 39 at 48 (finding petitioner’s inconsistent positions undermine its
`
`argument that components are distinct).
`
` Further undermining its position, Dr. Jensen could not explain how the
`
`alleged “server functionality” and the “routing functionality” could be implemented
`
`as separate logical entities. When asked to identify any reference that shows the
`
`alleged “server functionality” and router functionality” implemented separately, the
`
`best that Dr. Jensen could do was: “Obviously they’re all there working together.”
`
`Ex-2005, 63:21-64:17.
`
`Nor does the alleged distinction between the purported functionalities find
`
`support in any other reference. The Reply points to Granholm, Ex-1010, and Dutnall,
`
`Ex-1015, to demonstrate “that POSITA’s knew how to implement routers and
`
`servers on the same GGSN hardware (such as Ahopelto’s GGSN).” Reply 8. But
`
`neither Granholm nor Dutnall teaches or suggests that the alleged “server
`
`functionality” and “routing functionality” of a GGSN are distinct elements. With
`
`respect to Granholm, Dr. Jensen conceded that Granholm did not teach anything
`
`– 7 –
`
`

`

`about separately implementing “routing functionality.” Ex-2005, 56:16-57:2
`
`(emphasis added).
`
`As for Dutnall, Petitioner relies on alleged teachings in Dutnall’s Fig. 7.
`
`Reply, 8 (citing Ex-1015, 10:9-13, 11:14-16.). But none of the cited materials
`
`contain any reference to a server. So Dutnall does not show that the alleged “server
`
`functionality” and “routing functionality” of Ahopelto are separate and distinct.
`
`Moreover, Petitioner’s Dutnall argument is new. The Petition only mentions
`
`Dutnall in reference to teach an “overlay network” per dependent claim 10. Pet., 57;
`
`Ex-1003, ¶180. The Board should not consider this untimely argument. Intelligent
`
`Bio-Sys., Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359, 1369-70 (Fed. Cir. 2016).
`
`Further, Dr. Jensen never testified that Dutnall teaches or suggests anything about a
`
`“server functionality” or “routing functionality” so Petitioner’s new argument rests
`
`entirely on attorney argument. Packers Plus Energy Servs. Inc. v. Baker Hughes
`
`Oilfield Operation, LLC, IPR2016-01000, Paper 34, 26 (PTAB Nov. 6, 2017).
`
`Accordingly, Petitioner fails to show that the “server functionality” and
`
`“routing functionality” are separate and distinct elements.
`
`III. PETITIONER FAILS TO SHOW THE ALLEGED COMBINATION
`MEETS LIMITATION 1[D] UNDER ITS “SERVER
`FUNCTIONALITY” THEORY
`The POR demonstrates that Petitioner’s “server functionality” theory fails to
`
`meet limitation 1[d] because communication with a GGSN does not show
`
`– 8 –
`
`

`

`communication with all components of the GGSN including the alleged “server
`
`functionality.” POR, 14-16.
`
`In its reply, Petitioner makes a new argument that the “server functionality”
`
`is indirectly in communication with network devices via the alleged “routing
`
`functionality.” Reply, 16-17. But this argument is untimely. The Petition relies
`
`entirely on the presumption that communication with the GGSN equates to
`
`communication with network devices. Pet., 37 (“The GGSN’s server functionality
`
`… is part of the GGSN, and therefore the GGSN’s server functionality is itself in
`
`communication with multiple network devices.”). Petitioner cannot raise new
`
`arguments in Reply. Intelligent Bio-Sys., 821 F.3d at 1369-70.
`
`Petitioner’s new “indirect communication” argument is also incorrect. It
`
`assumes, without support, that communication with the “routing functionality”
`
`equates to communication with a “server functionality.” This conflicts with
`
`Petitioner’s argument that the “server functionality” is separate and distinct from the
`
`“routing
`
`functionality.” Ex-2008, ¶45. Furthermore, given
`
`the
`
`routing
`
`functionality’s role to check a packet address—as acknowledged by Petitioner’s
`
`expert—there is no need to forward the packet to any alleged “server functionality”
`
`or for the alleged “server functionality” to communicate (directly or indirectly) with
`
`anything other than the alleged “routing functionality.” Ex-2008, ¶¶45, 48 (citing
`
`Ex-2005, 47:6-18).
`
`– 9 –
`
`

`

`Petitioner asserts that “PO is wrong ‘that there would be no need for the
`
`alleged ‘server functionality’ to communicate with anything other than the alleged
`
`‘routing functionality’.’” Reply, 17 (quoting POR, 15-16). But Petitioner never
`
`identifies a reason why the alleged “server functionality” would communicate
`
`(directly or indirectly) with anything other than the “routing functionality.” The
`
`Reply just reiterates that the “routing functionality” communicates with network
`
`devices, and assumes
`
`there
`
`is
`
`indirect communication with
`
`the “server
`
`functionality.” This is not enough. As Dr. Cooklev explained, “a POSITA would not
`
`understand communication with the GGSN or even communication with “routing
`
`functionality” of a GGSN to suggest communication with an allegedly separatee
`
`[sic] and distinct “server functionality.” Ex-2008, ¶48.
`
`Moreover, Petitioner’s position that “PO is wrong” is unsupported attorney
`
`argument. Kinetic Techs., Inc., v. Skyworks Sols., Inc., IPR2014-00690, Paper 8, 19
`
`(PTAB Oct. 23, 2014). PO’s position, in contrast, is supported by Dr. Cooklev’s
`
`testimony. Petitioner fails to establish that its alleged combination teaches or
`
`suggests limitation 1[d] under the “server functionality” theory.
`
`IV. PETITIONER FAILS TO SHOW THE ALLEGED COMBINATION
`MEETS LIMITATION 14[E] UNDER ITS “SERVER
`FUNCTIONALITY” THEORY
`The POR showed that Petitioner fails to meet limitation 14[e], which recites
`
`“a server, wherein the server is configured for communication with the first network
`
`– 10 –
`
`

`

`switch box and the second network switch box.” POR, 17-19. Petitioner maps the
`
`alleged “routing functionality” of a GGSN to the “first network switch box.” The
`
`“second network switch box” is mapped to a separate “local network” router. Pet.,
`
`62. The “server” is mapped to the “server functionality” of the GGSN. Pet., 69. The
`
`Petition only attempts to establish communication between the alleged switch boxes,
`
`and neglects to establish that the alleged “server functionality” is configured for
`
`communication with the “second network switch box.” POR, 18-19.
`
`In Reply, Petitioner argues that the “server functionality” is indirectly in
`
`communication with the “second network switch box” because the “server
`
`functionality” is in communication with the “routing functionality” of a GGSN.
`
`Reply, 18-19. But this position is conclusory and unsupported. As explained by Dr.
`
`Cooklev “a POSITA would not understand communication with the GGSN or even
`
`communication with ‘routing functionality’ of a GGSN, to suggest communication
`
`with an allegedly separatee [sic] and distinct ‘server functionality.’” Ex-2008, ¶48.
`
`“Conclusory assertions and citations without meaningful explanation, are inadequate
`
`to support a determination of obviousness.” Boart Longyear Ltd. v. Australian Mud
`
`Co., Pty Ltd., IPR2019-01129, Paper 26, 16 (PTAB Nov. 20, 2020) (citing TQ Delta,
`
`LLC v. CISCO., Inc., 942 F.3d 1352, 1359 (Fed. Cir. 2019)).
`
`Petitioner also relies on the unproven assertion that a packet traverses both the
`
`“routing functionality” and “server functionality” of a GGSN. Reply, 16-17. But as
`
`– 11 –
`
`

`

`explained by Dr. Cooklev, there is no need for a packet to traverse both these alleged
`
`functionalities. Ex-2008, ¶48. As acknowledged by Dr. Jensen, the alleged “routing
`
`functionality” of the GGSN (not a separate server) checks the data packet. Ex-2005,
`
`47:6-18. Thus, there is no need to send the data packet to a “server functionality.”
`
`Ex-2008, ¶48. Petitioner has no answer to Dr. Cooklev’s testimony other than
`
`repeating the argument that communication with the “routing functionality” equates
`
`to communication with the “server functionality.” Reply, 18-19. The Board should
`
`reject Petitioner’s challenge to claim 14 of ’863 patent under the “server
`
`functionality” theory.
`
`V.
`
`PETITIONER’S “ACCESS SERVER” THEORY FAILS
`Petitioner Lacks A Reasoned Explanation For A Missing Claim
`A.
`Element
`In addition to its “server functionality” theory, Petitioner proffers a backup
`
`theory that maps the “first server” and “server” of claims 1 and 14 to an alleged
`
`“access server,” which is not referenced in Ahopelto. It is undisputed that this
`
`argument seeks to fill a critical, missing element (the “server”) with general
`
`knowledge of a POSITA concerning the alleged “access server.” Compare POR, 11,
`
`with Reply, 14. Here, Petitioner must provide evidence and a reasoned explanation
`
`why the gap left by the missing element should be filled with general knowledge of
`
`a POSITA. Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355, 1363 (Fed Cir. 2016)
`
`(quoting Perfect Web, Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir.
`
`– 12 –
`
`

`

`2009)). As pointed out in the POR, Petitioner failed to provide a reasoned
`
`explanation why the missing limitation would be filled with generic knowledge of a
`
`POSITA. POR, 10-11.
`
`The Reply does not rectify this omission. Instead, it merely points back to the
`
`Petition. Reply, 14 (citing Pet., 25, 34). But the cited content lacks any reasoned
`
`explanation why the alleged general knowledge of a POSITA would be relevant to
`
`fill the gap in the prior art cited by the Petitioner. At page 25, the Petition merely
`
`asserts, without any analysis other than an unexplained citation to alleged prior art,
`
`that “GGSNs included an “access server.” At pages 33-34, the Petition points to
`
`references, again, without explanation and merely concludes “it would have been
`
`obvious to a POSITA that Ahopelto’s GGSN include an ‘Access Server.’”
`
`Petitioner also claims it “relied upon Dr. Jensen’s analysis with copious
`
`supporting evidence.” But Dr. Jensen’s declaration contains little more than a
`
`verbatim recitation of the Petition, which is itself deficient. See Pet., 24-25 (citing
`
`Ex-1003, ¶79); Pet., 33-34 (citing Ex-1003, ¶109). Dr. Jensen’s declaration does not
`
`fill Petitioner’s gap. Kinetic Techs., IPR2014-00690, Paper 8 at 19.
`
`Finally, Petitioner points to Dr. Cooklev’s testimony that “a GGSN could
`
`include an access server.” Ex-1029, 57:8-16. But, like Petitioner’s other evidence,
`
`this testimony does not provide a “reasoned explanation” required to show that it
`
`would be obvious to apply the general knowledge of a POSITA to Ahopelto to fill
`
`– 13 –
`
`

`

`in the missing claim limitation with general background knowledge. Arendi, 832
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`F.3d at 1365.
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`B.
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`The Alleged Combination Fails to Teach or Suggest All
`Limitations of Claim 1 Under the “Access Server” Theory
`In the POR, PO showed that Petitioner fails to establish that Ahopelto teaches
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`or suggest limitation 1[d] under Petitioner’s “access server” theory. POR, 11-12. In
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`response, Petitioner argues that the Petition identifies “control means” that “is also
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`a ‘controller’ ‘because it controls the operation of the access server … for a desired
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`packet network,’” which allegedly renders obvious limitation 1[d]. Reply 15
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`(quoting Ex-1003, ¶112.).
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`But this argument ignores the full text of the claim, which includes the
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`limitation “in communication with a plurality of network devices.” The Petition
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`never explains how this part of limitation 1[d] is met under the “access server”
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`theory, Pet., 35-38, and the Reply similarly fails to address this part of the limitation
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`under its “access server” theory, Reply 14-15. Petitioner’s “access server” server
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`theory cannot succeed where Petitioner ignores elements of the claims. Univ. of
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`Strathclyde v. Clear-Vu Lighting LLC, 17 F.4th 155, 160 (Fed. Cir. 2021) (quoting
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`PAR Pharm., Inc. v. TWI Pharms., Inc., 773 F.3d 1186, 1194 (Fed. Cir. 2014)).
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`C. The Alleged Combination Fails To Teach Or Suggest Limitation
`14[e] Under The “Access Server” Theory
`In the POR, PO showed that the Petition fails to explain how the “Access
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`Server” meets all the limitations of claim 14. POR, 13. Limitation 14[e] recites “a
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`– 14 –
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`

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`server, wherein the server is configured for communication with the first network
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`switch box and the second network switch box.” Ex-1001, 13:6-10. Under the
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`“access server” theory, Petitioner maps the “server” to an alleged “access server” of
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`a GGSN, and maps a “second network switch box” to a “local network” router. Pet,
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`62, 69. Limitation 14[e] requires a server configured for communication with both
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`the “first network switch box” and the “second network switch box.” But the Petition
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`only addresses whether the “access server” is in communication with the alleged
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`“first network switch box” (the “routing functionality” of a GGSN). POR, 69. The
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`Petition never alleges that that “access server” is in communication with the alleged
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`“second network switch box.” POR, 69.
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`Petitioner makes the same mistake in Reply and ignores the claimed “second
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`network switch box.” Petitioner points to purported evidence “that the access server
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`is additionally in communication with the GGSN’s ‘routing functionality.’” Reply,
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`19. But the “routing functionality” is mapped to the “first network switch box,” not
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`the second network switch box.
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`In Reply, Petitioner also alleges that the POR ignores evidence presented in
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`Dr. Jensen’s expert declaration. Reply 19-20 (citing Ex-1003, ¶¶188-191). But this
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`content is not even related to claim 14, and it fails to address how the alleged “access
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`server” is configured for communication with the alleged “second network switch
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`box.” Indeed, the cited paragraphs of Dr. Jensen’s declaration never even mention
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`– 15 –
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`

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`the “local network” router that the Petition maps to the “second network switch box.”
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`See Ex-1003, ¶¶188-191, 222. Petitioner has failed to meet its burden on limitation
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`14[e] under its “access server” theory, and the Board should reject this challenge to
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`claim 14. Gamber-Johnson LLC v. Nat’l Prod. Inc., IPR2021-01159, Paper 7, 2, 39
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`(PTAB Jan. 3, 2022) (citing Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363
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`(Fed. Cir. 2016)).
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`VI. PETITIONER DOES NOT CONTEST THAT ITS “ACCESS
`SERVER” THEORY IS INAPPLICABLE TO CLAIMS 4-6, 19, AND
`24
`The POR established that Petitioner failed to make any argument on its
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`“access server” theory for claims 4-6 and 19[b]. and 24. POR, 32, 33-36. Petitioner
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`left these showings unrebutted in its Reply. Accordingly, even were the Board to
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`credit Petitioner’s “access server” theory, it would not reach claims 4-6, 19, and 24.
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`Harmonic, 815 F.3d at 1363; see also 37 C.F.R. § 42.104(b).
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`VII. PETITIONER CANNOT REWRITE CLAIM 4 TO FIX THE
`PETITION’S SHORTCOMINGS
`The POR establishes three reasons why Petitioner fails to meet its burden on
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`Claim 4. POR, 19-26. First, the Petition failed to prove that an alleged “first network
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`switch box” receives data packets using dynamically changing paths as required by
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`claim 4. POR, 19-21. Second, the Petition fails to identify a server configured to
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`dynamically control and change the network flow … such that the first network
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`switch and second network switch box transmit and receive data packets using
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`– 16 –
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`

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`dynamically changing paths, as required by claim 4. Id., 21-24. Third, Petitioner fails
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`to show dynamically changing network paths. Id., 25-26.
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`In reply to the PO’s first and second arguments, Petitioner seeks to rewrite
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`claim 4 to circumvent the limitation requiring that the “first network switch box”
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`“receive data packets using dynamically changing network paths.” Reply, 22-24. But
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`Petitioner’s claim construction attempts are legally and grammatically flawed.
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`Claim 4 recites wherein “the first network switch box and second network
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`switch box transmit and receive data packets using dynamically changing network
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`paths.” Ex-1001, 12:21-26 (emphasis added). This limitation requires the “first
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`network switch box and second network switch box” to “transmit” and requires the
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`“first network switch box and second network switch box” to “receive.” Because the
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`claim uses the conjunctive “and” to join terms “transmit” and “receive,” the
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`preceding phrase (“first network switch box and second network switch box”)
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`should be treated as it appears before each item. SIMO Holdings Inc. v. Hong Kong
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`uCloudlink Network Tech. Ltd., 983 F.3d 1367, 1376-77 (Fed. Cir. 2021) (citing
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`SupreGuide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 884-86 (Fed. Cir.
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`2004). This “reflects a more general grammatical principle applicable to a modifier
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`coming before a series. ‘When there is straightforward, parallel construction that
`
`involves all nouns or verbs in a series, a prepositive or postpositive modifier
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`normally applies to the entire series.’” SIMO Holdings, 983 F.3d at 1377 (quoting
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`– 17 –
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`

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`Antonin Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL
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`TEXTS §19, 147 (2012)).
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`Petitioner seeks to diverge from this grammatical principle with