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`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_______________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________________________
`
`
`
`ARISTA NETWORKS, INC.
`Petitioner
`
`v.
`
`CORRIGENT CORPORATION,
`Patent Owner
`_________________________________
`
`IPR2023-00515
`U.S. Patent No. 7,330,431
`
`__________________________________
`
`DECLARATION OF TAL LAVIAN, PH.D.,
`UNDER C.F.R. § 1.68 IN SUPPORT OF PETITION
`FOR INTER PARTES REVIEW
`
`Arista Networks, Inc.
`Ex. 1021, p. 1
`
`

`

`  
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`
`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
`
`Contents
`
`I. INTRODUCTION ........................................................................................... 5
`A. Qualifications ............................................................................................ 5
`B. Documents and Information Considered ................................................11
`C. Summary of Opinions .............................................................................11
`
`II. LEGAL STANDARDS TO BE APPLIED ...................................................12
`
`III. STATE OF THE ART ...................................................................................20
`A. Concepts of the ’431 Patent were the Industry's Mainstream. They were
`Well-published, Disclosed, Discussed, and Standardized in Different
`Standard Bodies. .....................................................................................21
`B. Networking standards, Interoperability, and Mainstream Technologies22
`
`IV. OVERVIEW OF THE ’431 PATENT ..........................................................26
`
`V. A PERSON OF ORDINARY SKILL IN THE ART ....................................27
`
`VI. CLAIM CONSTRUCTION ..........................................................................29
`
`VII. SUMMARY OF THE PRIOR ART ..............................................................30
`A. Baker Overview ......................................................................................30
`B. Wright Overview ....................................................................................31
`C. Holender ’699 Overview ........................................................................32
`D. Zheng Overview......................................................................................33
`E. Holender ’894 Overview ........................................................................33
`
`VIII. GROUNDS FOR UNPATENTABILITY OF THE CLAIMS OF THE ’431
`PATENT ........................................................................................................34
`
`IX. GROUND 1: THE COMBINATION OF BAKER, WRIGHT AND
`HOLENDER ’699 RENDERS OBVIOUS CLAIMS 1-5, 7-11, AND 25-26
` .......................................................................................................................34
`A. Motivation to Combine Baker with Wright and Holender ’699 .............34
`B. Detailed Analysis of the Claims .............................................................43
`
`X. GROUND 2: THE COMBINATION OF BAKER, WRIGHT, HOLENDER
`’699, AND HOLENDER ’894 RENDERS OBVIOUS CLAIMS 12-16, 18-
`24, AND 27-30 ..............................................................................................58
`A. Motivation to Combine Baker with Wright, Holender ’699 and Holender
`’894 58
`B. Detailed Analysis of the Claims .............................................................59
`
`XI. GROUND 3: THE COMBINATION OF BAKER, WRIGHT, HOLENDER
`’699 AND ZHENG RENDERS OBVIOUS CLAIM 6 .................................79
`
`i
`
`Arista Networks, Inc.
`Ex. 1021, p. 2
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`

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`
`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
`
`A. Motivation to Combine Baker with Wright, Holender ’699 and Zheng 79
`B. Detailed Analysis of Claim 6 ..................................................................82
`
`XII. GROUND 4: THE COMBINATION OF BAKER, WRIGHT, HOLENDER
`’699, HOLENDER ’894 AND ZHENG RENDERS OBVIOUS CLAIM 17
` .......................................................................................................................83
`A. Motivation to Combine Baker with Wright, Holender ’699, Holender
`’894 and Zheng .......................................................................................83
`B. Detailed Analysis of Claim 17 ................................................................86
`
`XIII. CONCLUSION ..............................................................................................88
`
`
`ii
`
`Arista Networks, Inc.
`Ex. 1021, p. 3
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`

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`DocuSign Envelope ID: 924757AB-52A5-4E89-95C5-6AEE6C9BE887
`
`EXHIBIT LIST
`
`1001|US. Patent No. 7,330,431 (“431 Patent”)
`1002|Prosecution History for U.S. Patent No. 7,330,431 (“’431History”)
`
`1003|Declaration of Henry Houh, Ph.D. under 37 C_F_R. § 1.68
`1004|Curriculum Vitae of Henry Houh, Ph.D.
`1005|U.S. Pub. 2004/0095946 by Baker
`1006|U.S. Pub. 2004/0174884 by Wright
`
`
`1008|U.S. 6,757,247 to Zheng
`1005
`
`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
`
`
`
`i014
`
`Houh, Henry H., “Designing Networks for Tomorrow’s Traffic,”
`1015|Thesis for the degree of Doctor of Philosophy at the Massachusetts
`Institute of Technology, February 1998
`
`1020|U.S. 6,069,894 to Holender 894
`
`1021|Declaration of Dr. Tal Lavian, Ph.D., under 37 C.F.R. § 1.68
`
`1022|Curriculum Vitae of Tal Lavian, Ph.D.
`023 pO
`1025|IETF RFC-2638 (1999)
`1025|IETF RFC-2386 (1998)
`1026|IETF RFC-3272 (2002)
`
`Arista Networks, Inc.
`Ex. 1021, p. 4
`
`Arista Networks, Inc.
`Ex. 1021, p. 4
`
`

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`DocuSign Envelope ID: 924757AB-52A5-4E89-95C5-6AEE6C9BE887
`
`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
`
`Exhibit
`
`Description
`
`1034|Malyet. al, “Dynamic Bandwidth Allocation in a Network,” 1988
`
`1027|IETF RFC-3644 (2003)
`1028|IEEE 802.17 Resilient Packet Ring Tutorial, November 7, 2003
`1029|Raj Sharma,“Introduction to Resilient Packet Rings,” March 2001
`1030
`Enhanced ATM Port Adapter (ATM PA-A3) OC-12c, STM4, OC3c,
`STM1, DS3, E3, IMA, 2001
`1031|Tim Sziget, “QoS Best Practices,” October 5, 2004.
`Stein Gjessing and Fredrik Davik, “Performance Evaluation of Back-
`5
`Pressure Fairness in RPR
`
`1032
`
`1033|Lim Wong,“Metro Ethernet Standards,” May 2003
`
`Arista Networks, Inc.
`Ex. 1021, p.5
`
`Arista Networks, Inc.
`Ex. 1021, p. 5
`
`

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`
`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
`
`I, Tal Lavian, Ph.D., do hereby declare as follows:
`
`I. INTRODUCTION
`
`1. My name is Dr. Tal Lavian. I understand that I am submitting a
`
`declaration in connection with inter partes review (“IPR”) proceedings before the
`
`United States Patent and Trademark Office for U.S. Patent No. 7,330,431 (“the ’431
`
`Patent”) to Rao et. al.
`
`2. I have been retained on behalf of Arista Networks, Inc. (“Arista” or
`
`“Petitioner”) to offer technical opinions with respect to the ’431 Patent and the prior
`
`art relied on to show obviousness. I have been asked to provide my opinions as to
`
`whether the inventions claimed in claims 1-30 (“the Challenged Claims”) of the ’431
`
`Patent would have been obvious to a person with ordinary skill in the art
`
`(“POSITA”) at the time of the alleged invention, considering the prior art.
`
`3. I am being compensated for my work in this matter at my standard
`
`hourly rate. I am also being reimbursed for reasonable and customary expenses
`
`associated with my work and testimony in this proceeding. My compensation is not
`
`contingent on the outcome of this matter or the specifics of my testimony.
`
`A. Qualifications
`
`4. Based on my qualifications, education, knowledge, expertise, and
`
`experience, I believe I am qualified to offer opinions relating to the technology
`
`described in the ’431 Patent.
`
`
`
`5
`
`
`
`Arista Networks, Inc.
`Ex. 1021, p. 6
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`
`5. I am the Principal Scientist for TelecommNet Engineering, Inc. I have
`
`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
`
`been with the company since 2008. In my role at TelecommNet, I provide consulting
`
`and expert services in network communications, telecommunications, internet
`
`protocols, and smartphone mobile wireless devices. At TelecommNet, I also provide
`
`system architecture and technology analysis for computer networks, mobile wireless
`
`devices, and web-technology projects.
`
`6. Further, I am the CEO and CTO of Aybell (previously VisuMenu, Inc.).
`
`I founded VisuMenu, Inc. in 2010. At VisuMenu, Inc., I led the software design and
`
`development of a visual interactive voice response system for smartphones and
`
`mobile devices based on innovative wireless and network communications
`
`technologies.
`
`7. In 2016, VisuMenu, Inc. was rebranded as Aybell. At Aybell, I have
`
`facilitated the design, architectural development, and implementation of a cloud data
`
`center for connecting any smartphone user to any company and service by digitizing
`
`interactive voice systems and exposing them through cloud-service application
`
`programming interfaces to other applications.
`
`8. In 2008, I was a Network Communications Consultant for Ixia, a
`
`computer and wireless networking company. At Ixia, I researched and developed
`
`advanced network communications technologies.
`
`
`
`6
`
`
`
`Arista Networks, Inc.
`Ex. 1021, p. 7
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`9. From 1996 to 2007, I held several roles for Nortel Networks, a
`
`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
`
`telecommunications and networking equipment company. I was a Principal
`
`Scientist, Principal Architect, Principal Engineer, and Senior Software Engineer.
`
`And I was the Principal Investigator for the U.S. Department of Defense Projects. In
`
`this role, I conceived, proposed, and completed three research projects—active
`
`networks, DWDM-RAM, and a networking computation project for the Air Force
`
`Research Lab.
`
`10. At Nortel Networks, I was also an Academic and Industrial Researcher.
`
`In this role, I designed software for switches, routers, and network communications
`
`devices and developed systems and architectures for switches, routers, and network
`
`management.
`
`11. From 1987 to 1995, I worked for three voice and data communication
`
`and software/hardware companies—Aptel Communications, Scitex Ltd., and
`
`Shalev. In these roles, I developed a mobile wireless device, designed and managed
`
`a personal communication network and personal communication system, invented
`
`and implemented a two-way paging product, developed system and network
`
`communications in C/C++, and developed real-time software and algorithms in
`
`C/C++ and Pascal.
`
`
`
`7
`
`
`
`Arista Networks, Inc.
`Ex. 1021, p. 8
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`12. Further, I have served as an industry fellow and lecturer at the UC
`
`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
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`Berkeley College of Engineering, Sutardja Center for Entrepreneurship. I have co-
`
`authored over 25 scientific publications, journal articles, and peer-reviewed papers.
`
`13. I am a member of several professional organizations, including the
`
`Association of Computing Machinery (“ACM”) and the Institute of Electrical and
`
`Electronics Engineers (“IEEE”) (senior member). I am also certified under the IEEE
`
`Wireless Communications Engineering Technologies (“WCET”) 2012 Program,
`
`specifically designed by the IEEE Communications Society (“ComSoc”) to address
`
`the worldwide wireless industry’s growing and ever-evolving need for qualified
`
`communications professionals.
`
`14. I received a B.S. degree in Mathematics and Computer Science from
`
`Tel Aviv University in 1987, an M.S. degree in Electrical Engineering from Tel Aviv
`
`University in 1996, and a Ph.D. in Computer Science specializing in network
`
`communications from UC Berkeley in 2006.
`
`15. I have testified in Federal courts, the PTAB, and the ITC on behalf of
`
`leading companies such as Amazon, LinkedIn, AT&T, Sprint, Cisco Systems,
`
`Juniper Networks, ZTE, Huawei, Motorola, HP, LG, Microsoft, Facebook, and
`
`Apple. I testified in over 80 depositions on network communications and
`
`telecommunications, including telecommunications, network communications,
`
`
`
`8
`
`
`
`Arista Networks, Inc.
`Ex. 1021, p. 9
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`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
`
`network architecture, communications design, Internet protocols, and technologies.
`
`Furthermore, I have served as an expert witness in over 120 patent-related cases.
`
`16. I am an inventor of over 120 patents, 60 of which I prosecuted pro se
`
`in front of the USPTO. A number of these issued patents are relevant or
`
`contemporaneous to the ’431 Patent.
`
`17. I have published many peer-reviewed articles and publications on
`
`network technology, a relevant sampling of which includes: “Implementation of a
`
`Quality of Service Feedback Control Loop on Programmable Routers” at the 12th
`
`IEEE International Conference on Networks 2004, “Practical Active Network
`
`Services within Content-Aware Gateways” at the proceeding of the DARPA Active
`
`Networks Conference and Exposition, 2002, and “Active Networking on a
`
`Programmable Network Platform” at the Fourth IEEE Conference on Open
`
`Architectures and Network Programming.
`
`18. I have spent over a decade as an academic and industrial researcher. I
`
`have worked researching and developing many projects during that time, partly
`
`through heading research collaboration with leading universities and professors at
`
`UC Berkeley, Northwestern University, University of Amsterdam, and the
`
`University of Technology, Sydney. Some of these projects include Data-Center
`
`Communications: network and server orchestration, Network resource orchestration
`
`
`
`9
`
`
`
`Arista Networks, Inc.
`Ex. 1021, p. 10
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`for Web services workflows, and Packet capturing and forwarding service on IP and
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`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
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`Ethernet.
`
`19. I am a member of several professional organizations, including the
`
`IEEE Communications Society (COMMSOC), the ACM Special Interest Group on
`
`Data Communication (SIGCOM), the IEEE Consultants’ Network (CNSV), and the
`
`Global Member of the Internet Society (ISOC).
`
`20. I have many accomplishments in the field of network technology, such
`
`as leading the development of the first network resource scheduling service for grid
`
`computing, managing and engineering the first demonstrated dynamic transatlantic
`
`allocation of 10Gbs Lambdas as a grid service, and successful demonstration of the
`
`first wire-speed active network on commercial hardware.
`
`21. Based on my above-described over three decades of experience in
`
`network communications techniques, network architectures, network topologies,
`
`quality of service, network resource allocation, and the acceptance of my
`
`publications and professional recognition by societies in my field, I believe that I am
`
`qualified to be an expert in the field of network technology.
`
`22. Based on my knowledge, education, training, experience, and expertise
`
`described above, and as indicated in my curriculum vitae, I am qualified to provide
`
`the following opinions with respect to the patents in this case. Additionally, I am at
`
`least a person having ordinary skill in the art as of the priority date of the ’431 Patent.
`
`
`
`10
`
`
`
`Arista Networks, Inc.
`Ex. 1021, p. 11
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`23. My curriculum vitae contains further details on my education,
`
`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
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`experience, publications, and other qualifications to render an expert option.
`
`B. Documents and Information Considered
`
`24. I have reviewed the ’431 Patent, including the claims of the patent in
`
`view of the specification. In addition, I have reviewed the ’431 Patent’s prosecution
`
`history, the prior art discussed herein, and the remaining exhibits listed herein. I
`
`understand that defendants in a district court case filed by Corrigent Corporation,
`
`Cisco Systems Inc., Dell Technologies Inc., and Dell Inc. (“Cisco”), have also filed
`
`an IPR challenging the validity of the ’431 Patent. I have reviewed the petition filed
`
`by Cisco. I have also reviewed the declaration by Cisco’s expert, Dr. Houh, attached
`
`as Ex.1003. I have never met with or discussed the validity of the ’431 Patent with
`
`Dr. Houh. I have incorporated the totality of Dr. Houh’s declaration by reference in
`
`my declaration in support of the invalidity grounds raised in my declaration.
`
`C. Summary of Opinions
`
`25. In my opinion, claims 1-30 of the ’431 Patent are rendered obvious by
`
`the prior art. In the remainder of this declaration, I demonstrate that:
`
`• The combination of Baker in view of Wright, and Holender ’699 renders
`
`obvious claims 1-5, 7-11, and 25-26;
`
`• The combination of Baker in view of Wright, Holender ’699, and Holender
`
`’894 renders obvious claims 12-16, 18-24, and 27-30;
`
`• The combination of Baker in view of Wright, Holender ’699, and Zheng
`
`
`
`11
`
`
`
`Arista Networks, Inc.
`Ex. 1021, p. 12
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`DocuSign Envelope ID: 924757AB-52A5-4E89-95C5-6AEE6C9BE887
`
`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
`
`renders obvious claim 6; and
`
`e The combination of Baker in view of Wright, Holender °699, Holender
`
`°894, and Zhengrenders obvious claim 17.
`
`26.
`
`In summary:
`
`1-5, 7-11, and 25-26
`
`Wright, and Holender ’699
`
`
`
`12-16, 18-24, and 27-30|Wright, Holender 699, and Holender ’894
`
`PS, Wright, Holender 699, and Zheng
`
`Wright, Holender 699, Holender ’894, and Zheng
`
`Il.
`
`LEGAL STANDARDSTO BE APPLIED
`
`27.
`
`Iam_a technical expert and do not offer any legal opinions. However,
`
`counsel informed me about certain legal principles regarding patentability and
`
`related matters under United States patent law, which I have applied in performing
`
`my analysis and arriving at my technical opinions in this matter.
`
`28.
`
`I understand that there are two ways in which prior art may render a
`
`patent claim unpatentable. First, the prior art can “anticipate” the claim. Second, the
`
`prior art can render the claim “obvious” to a person of ordinary skill in the art
`
`(“POSITA”). I understand that for an invention claimedin a patent to be patentable,
`
`Arista Networks, Inc.
`Ex. 1021, p. 13
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`Arista Networks, Inc.
`Ex. 1021, p. 13
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`it must not be anticipated and must not be obvious based on what was known before
`
`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
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`the invention was made.
`
`29. I understand that a patent claim may be invalid as anticipated under 35
`
`U.S.C. § 102 if a prior art reference discloses each element of the claimed subject
`
`matter.
`
`30. I understand that a person cannot obtain a patent on an invention if the
`
`differences between the invention and the prior art are such that the subject matter
`
`as a whole would have been obvious at the time the invention was made to a
`
`POSITA. A conclusion of obviousness may be founded upon more than a single item
`
`of prior art. In determining whether prior art references render a claim obvious,
`
`counsel has informed me that courts consider the following factors: (1) the scope
`
`and content of the prior art, (2) the differences between the prior art and the claims
`
`at issue, (3) the level of skill in the pertinent art, and (4) secondary considerations of
`
`non-obviousness. Additionally, I understand the obviousness inquiry should not be
`
`done in hindsight. Instead, the obviousness inquiry should be done through the eyes
`
`of a POSITA at the time of the alleged invention.
`
`31. In considering whether certain prior art renders a particular patent claim
`
`obvious, I understand that courts allow a technical expert to consider the scope and
`
`content of the prior art, including the fact that one of skill in the art would regularly
`
`look to the disclosures in patents, trade publications, journal articles, industry
`
`
`
`13
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`Arista Networks, Inc.
`Ex. 1021, p. 14
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`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
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`standards, product literature and documentation, texts describing competitive
`
`technologies, requests for comment published by standard setting organizations, and
`
`materials from industry conferences. I understand that for a prior art reference to be
`
`proper for use in an obviousness analysis, the reference must be “analogous art” to
`
`the claimed invention. I understand that a reference is analogous art to the claimed
`
`invention if: (1) the reference is from the same field of endeavor as the claimed
`
`invention (even if it addresses a different problem); or (2) the reference is reasonably
`
`pertinent to the problem faced by the inventor (even if it is not in the same field of
`
`endeavor as the claimed invention). In determining whether a reference is reasonably
`
`pertinent, one should consider the problem faced by the inventor, as reflected either
`
`explicitly or implicitly, in the specification. I believe that all of the references I
`
`considered in forming my opinions in this IPR are well within the range of references
`
`a POSITA would have consulted to address the type of problems addressed by the
`
`claimed inventions of the challenged patent.
`
`32. In determining whether the subject matter of a patent claim is obvious,
`
`I understand neither the particular motivation nor the avowed purpose of the patentee
`
`controls. Instead, the important consideration is the objective reach of the claim. In
`
`other words, if the claim extends to what is obvious, then the claim is invalid. I
`
`further understand the obviousness analysis often necessitates consideration of the
`
`interrelated teachings of multiple patents, the effects of demands known to the
`
`
`
`14
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`Arista Networks, Inc.
`Ex. 1021, p. 15
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`
`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
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`technological community or present in the marketplace, and the background
`
`knowledge possessed by a POSITA. All of these issues may be considered to
`
`determine whether there was an apparent reason to combine the known elements in
`
`the fashion claimed by the patent.
`
`33. I understand that, in order to establish that a claimed invention was
`
`obvious based on a combination of prior art elements, a clear articulation of the
`
`reason(s) why a claimed invention would have been obvious must be provided.
`
`Specifically, I understand that, under the U.S. Supreme Court’s decision in KSR Int’l
`
`Co. v. Teleflex Inc., 550 U.S. 398, 401 (2007), a combination of multiple items of
`
`prior art renders a patent claim obvious when there was an apparent reason for a
`
`POSITA, at the time of the invention, to combine the prior art, which can include,
`
`but is not limited to, any of the following rationales: (A) combining prior art methods
`
`according to known methods to yield predictable results; (B) substituting one known
`
`element for another to obtain predictable results; (C) using a known technique to
`
`improve a similar device in the same way; (D) applying a known technique to a
`
`known device ready for improvement to yield predictable results; (E) trying a finite
`
`number of identified, predictable potential solutions, with a reasonable expectation
`
`of success; (F) identifying that known work in one field of endeavor may prompt
`
`variations of it for use in either the same field or a different one based on design
`
`incentives or other market forces if the variations are predictable to one of ordinary
`
`
`
`15
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`Arista Networks, Inc.
`Ex. 1021, p. 16
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`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
`
`skill in the art; or (G) identifying an explicit teaching, suggestion, or motivation in
`
`the prior art that would have led one of ordinary skill to modify the prior art reference
`
`or to combine the prior art references to arrive at the claimed invention. I also
`
`understand that where there is a motivation to combine, claims may be rejected as
`
`prima facie obvious provided a POSITA would have had a reasonable expectation
`
`of success regarding the proposed combination.
`
`34. I am informed that the existence of an explicit teaching, suggestion, or
`
`motivation to combine known elements of the prior art is a sufficient, but not a
`
`necessary, condition to a finding of obviousness. This so-called “teaching-
`
`suggestion- motivation” test is not the exclusive test and is not to be applied rigidly
`
`in an obviousness analysis. In determining whether the subject matter of a patent
`
`claim is obvious, neither the particular motivation nor the avowed purpose of the
`
`patentee controls. Instead, the important consideration is the objective reach of the
`
`claim. In other words, if the claim extends to what is obvious, then the claim is
`
`invalid. I further understand that the obviousness analysis often necessitates
`
`consideration of the interrelated teachings of multiple patents, the effects of demands
`
`known to the technological community or present in the marketplace, and the
`
`background knowledge possessed by a POSITA. All of these issues may be
`
`considered to determine whether there was an apparent reason to combine the known
`
`elements in the fashion claimed by the patent.
`
`
`
`16
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`
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`Arista Networks, Inc.
`Ex. 1021, p. 17
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`35. I also understand that in conducting an obviousness analysis, a precise
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`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
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`teaching directed to the specific subject matter of the challenged claim need not be
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`sought out because it is appropriate to take account of the inferences and creative
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`steps that a POSITA would employ. I understand that the prior art considered can be
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`directed to any need or problem known in the field of endeavor at the time of the
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`invention and can provide a reason for combining the elements of the prior art in the
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`manner claimed. In other words, the prior art need not be directed towards solving
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`the same specific problem as the problem addressed by the patent. Further, the
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`individual prior art references themselves need not all be directed towards solving
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`the same problem. I understand that common sense is important and should be
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`considered. Common sense teaches that familiar items may have obvious uses
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`beyond their primary purposes.
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`36. I also understand that a particular combination of prior art elements
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`being “obvious to try” may indicate that the combination was obvious even if no one
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`attempted the combination. If the combination was obvious to try (regardless of
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`whether it was tried) or leads to anticipated success, then it is likely the result of
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`ordinary skill and common sense rather than innovation. I further understand that in
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`many fields it may be that there is little discussion of obvious techniques or
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`combinations, and it often may be the case that market demand, rather than scientific
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`literature or knowledge, will drive the design of an invention. I understand that an
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`17
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`Arista Networks, Inc.
`Ex. 1021, p. 18
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`invention that is a combination of prior art must do more than yield predictable
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`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
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`results to be non-obvious.
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`37. I understand that for a patent claim to be obvious, the claim must be
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`obvious to a POSITA at the time of the invention. I understand the factors to consider
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`in determining the level of ordinary skill in the art include: (1) educational level and
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`experience of people working in the field at the time the invention was made, (2)
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`types of problems faced in the art and solutions found to those problems, and (3)
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`sophistication of the technology in the field.
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`38. I am informed that it is improper to combine references where the
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`references teach away from their combination. I am informed that a reference may
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`be said to teach away when a POSITA, upon reading the reference, would be
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`discouraged from following the path set out in the reference, or would be led in a
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`direction divergent from the path that was taken by the patent applicant. In general,
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`a reference will teach away if it suggests that the line of development flowing from
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`the reference’s disclosure is unlikely to be productive of the result sought by the
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`patentee. I am informed that a reference teaches away, for example, if (1) the
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`combination would produce a seemingly inoperative device, or (2) the references
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`leave the impression that the product would not have the property sought by the
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`patentee. I also understand that a reference does not teach away if it merely expresses
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`18
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`Arista Networks, Inc.
`Ex. 1021, p. 19
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`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
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`a general preference for an alternative invention but does not criticize, discredit, or
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`otherwise discourage investigation into the invention claimed.
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`39. I am informed that even if a prima facie case of obviousness is
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`established, the final determination of obviousness must also consider “secondary
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`considerations” if presented. In most instances, the patentee raises these secondary
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`considerations of non-obviousness. In that context, the patentee argues an invention
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`would not have been obvious in view of these considerations, which include: (a)
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`commercial success of a product due to the merits of the claimed invention, (b) a
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`long-felt, but unsatisfied need for the invention, (c) failure of others to find the
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`solution provided by the claimed invention, (d) deliberate copying of the invention
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`by others, (e) unexpected results achieved by the invention, (f) praise of the invention
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`by others skilled in the art, (g) lack of independent simultaneous invention within a
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`comparatively short space of time, (h) teaching away from the invention in the prior
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`art.
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`40. I further understand that secondary considerations evidence is only
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`relevant if the offering party establishes a connection, or nexus, between the
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`evidence and the claimed invention. The nexus cannot be based on prior art features.
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`The establishment of a nexus is a question of fact. While I understand that Patent
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`Owner has not offered any secondary considerations at this time, I will supplement
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`19
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`Arista Networks, Inc.
`Ex. 1021, p. 20
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`my opinions in the event that the Patent Owner raises secondary considerations
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`Declaration of Tal Lavian, Ph.D.
`Inter Partes Review of U.S. 7,330,431
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`during the course of this proceeding.
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`41. I understand that, in IPR proceedings, patent claim terms are given their
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`ordinary and customary meaning in view of the specification and prosecution
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`history, unless those sources show an intent to depart from such meaning.
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`III. STATE OF THE ART
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`42. Prior to the earliest priority date of the ’431 Patent, data
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`communications within a network was a well-developed field of technology,
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`including optimizing bandwidth allocations for the data in the network. It was well
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`known to allocate bandwidth to make more efficient use of the guaranteed bandwidth
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`available on the network. Mapping logical topologies on top of physical topologies
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`such as ring were commonly used in the industry.
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`43. By the time of the earliest possible priority date, the field of bandwidth
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`allocations, quality of service, and service level agreements were well-established in
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`business, academic, and governmental settings; well published and described in
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`many articles, academic publications, patents, and product literature. Such concepts
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`and ideas were well discussed in standardized in standard bodies.
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`44. The following section describes the state of