`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`
`AMAZON.COM, INC., AMAZON WEB SERVICES, INC., AND
`AMAZON.COM SERVICES LLC,
`Petitioners,
`
`v.
`
`LS CLOUD STORAGE TECHNOLOGIES LLC,
`Patent Owner.
`_______________
`
`Case: IPR2023-00120, IPR2023-007331
`Patent: 10,154,092 B2
`
`
`
`
`____________________________________________________________
`
`
`PETITIONERS’ REPLY TO PATENT OWNER’S RESPONSE
`
`
`
`
`1 This case is joined with IPR2023-00120. Per the Board’s order (Paper 14),
`Petitioner Amazon is authorized to make any such filings related to IPR2023-
`00120 in the instant proceeding. In addition, Petitioners Google, Microsoft, Cisco,
`and Patent Owner each filed respective approved Joint Motions to Terminate as to
`Petitioners Google, Microsoft, and Cisco. Accordingly, Amazon.com, Inc.,
`Amazon Web Services, Inc., and Amazon.com Services LLC, collectively
`“Amazon,” or “the Amazon entities” remain as Petitioners in this proceeding.
`
`
`
`IPR2023-00733
`
`
`TABLE OF CONTENTS
`
`Page
`
`I.
`
`Introduction ..................................................................................................... 1
`
`II. Argument ........................................................................................................ 1
`
`A.
`
`B.
`
`C.
`
`The Institution Decision correctly found that Heil discloses a
`“dedicated I/O channel” as preliminarily construed by the
`Board. ................................................................................................... 1
`
`The POR has not justified another construction for “dedicated
`I/O channel,” but Heil would anticipate the claims regardless. ........... 4
`
`Patent Owner’s remaining arguments should be rejected as they
`are identical to those the Board found unpersuasive in Patent
`Owner’s Preliminary Response. ........................................................... 7
`
`III. Conclusion ...................................................................................................... 8
`
`
`
`
`
`
`
`-i-
`
`
`
`
`
`IPR2023-00733
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co. Matal,
`868 F.3d 1013, 1017 (Fed. Cir. 2017) ....................................................................... 3
`
`Google LLC v. Uniloc 2017 LLC,
`IPR2020-00756, Paper 30 (P.T.A.B. Oct. 12, 2021) ............................................ 7
`
`Miami Int’l Holdings, Inc. v. Nasdaq, Inc.,
`CBM2018-00030, Paper 65 (P.T.A.B. Oct. 3, 2019) ........................................... 8
`
`Palo Alto Networks, Inc. v. Selective Signals, LLC,
`IPR2018-00594, Paper 46 (P.T.A.B. Aug. 8, 2019) ............................................. 8
`
`-ii-
`
`
`
`IPR2023-00733
`
`
`Abbreviation
`Pet.
`
`POPR
`
`Institution
`
`POR
`
`LIST OF ABBREVIATIONS
`
`Description
`Cisco Sys., Inc. v. LS Cloud Storage Techs. LLC, IPR2023-
`00733, Paper 1, Petition for Inter Partes Review of U.S.
`Patent No. 10,154,092
`Cisco Sys., Inc. v. LS Cloud Storage Techs. LLC, IPR2023-
`00733, Paper 9, Patent Owner’s Preliminary Response
`Google LLC v. LS Cloud Storage Techs., LLC, IPR2023-
`00120, Paper 7, Granting Institution for Inter Partes Review
`Google LLC v. LS Cloud Storage Techs., LLC, IPR2023-
`00120, Paper 9, Patent Onwer’s Response to Petition
`
`
`
`
`
`
`-iii-
`
`
`
`
`
`IPR2023-00733
`
`
`LIST OF EXHIBITS
`
`Exhibit Description
`
`U.S. Patent No. 10,154,092
`
`Exhibit #
`
`1001
`
`File History of U.S. Patent No. 10,154,092 (Application No. 14/997,327) 1002
`
`File History of U.S. Patent No. 6,549,988 (Application No. 09/236,409)
`
`1003
`
`Declaration of Dr. Paul Franzon, Ph.D.
`
`CV of Dr. Paul Franzon, Ph.D.
`
`U.S. Patent No. 6,173,374 (“Heil”)
`
`U.S. Patent No. 5,920,893 (“Nakayama”)
`
`U.S. Patent No. 5,692,211 (“Gulick”)
`
`U.S. Patent No. 6,118,776 (“Berman”)
`
`United States District Courts – National Judicial Caseload Profile,
`https://www.uscourts.gov/sites/default/files/
`fcms_na_distprofile0331.2022.pdf (accessed September 21, 2022)
`
`Order Staying Case in LS Cloud Storage Technologies, LLC v. Google
`LLC, 1:22-cv-00853 (W.D. Tex. 2022)
`
`USPTO Memo: Interim Procedure for Discretionary Denials in AIA
`Post-Grant Proceedings with Parallel District Court Litigation, June 21,
`2022
`
`Order Setting Initial Pretrial Conference for 11/3/2022 in LS Cloud
`Storage Technologies, LLC v. Google LLC, 1:22-cv00853 (W.D. Tex.
`2022)
`
`D. Patterson, G. Gibson, R. Katz, entitled “A Case for Redundant Arrays
`of Inexpensive Disks (RAID)”. SIGMOD88: International Conference
`On Management of Data Chicago Illinois USA June 1 - 3, 1988
`
`R. H. Katz, "Network-attached storage systems," Proceedings Scalable
`High Performance Computing Conference SHPCC92., Williamsburg,
`VA, USA, 1992, pp. 68-75
`
`1004
`
`1005
`
`1006
`
`1007
`
`1008
`
`1009
`
`1010
`
`1011
`
`1012
`
`1013
`
`1014
`
`1015
`
`Gang Ma and A. L. Narasimha Reddy, "An evaluation of storage systems
`based on network-attached disks," Proceedings. 1998 International
`
`1016
`
`-iv-
`
`
`
`
`
`
`
`
`
`IPR2023-00733
`
`
`Exhibit Description
`
`Exhibit #
`
`Conference on Parallel Processing (Cat. No.98EX205), Minneapolis,
`MN, USA, 1998, pp. 278-285.
`
`Average Time to Trial for Patent Cases before Judge Yeakel, retrieved
`from www.docketnavigator.com
`
`Infringement Contentions served in LS Cloud Storage Technologies,
`LLC v. Google LLC, 1:22-cv-00853 (W.D. Tex. 2022)
`
`RESERVED
`
`Confidential Settlement Agreement
`
`Agreed Stipulation of Dismissal With Prejudice (LS Cloud and Cisco)
`
`Report on the Filing or Determination of an Action Regarding a Patent or
`Trademark (LS Cloud and Cisco)
`
`1017
`
`1018
`
`1019
`
`1020
`
`1021
`
`1022
`
`Redline Comparison of Patent Owner’s Preliminary Response vs. Patent
`Owner’s Response filed in IPR2023-00120
`
`1023
`[NEW]
`
`
`
`
`
`-v-
`
`
`
`
`
`IPR2023-00733
`
`I.
`
`INTRODUCTION
`
`The POR largely reproduces the same arguments from the POPR verbatim.
`
`The only difference between them is the addition of two paragraphs and a half-
`
`dozen clauses directed at the meaning of “dedicated I/O channel.” See Ex. 1023.
`
`But these additions do not save Patent Owner’s claims.
`
`The POPR implicitly relied on a construction that the Board adopted for its
`
`Institution Decision. As the Board recognized, that construction did not distinguish
`
`Heil, the prior art reference common to every ground.
`
`The POR hopes to try again by asking the Board to reinterpret “dedicated
`
`I/O channel” to require a connection between only one CPU and only one
`
`peripheral I/O device. But there is no evidence to support such a construction, and
`
`Heil discloses a “dedicated I/O channel” even under that unsupported construction.
`
`Thus, the POR’s two new paragraphs of argument fail to overcome the Petition’s
`
`evidence demonstrating that claims 1-24 of the ’092 patent are unpatentable under
`
`35 U.S.C. §§ 102 and 103, and the Board should cancel the challenged claims.
`
`II. ARGUMENT
`
`A. The Institution Decision correctly found that Heil discloses a
`“dedicated I/O channel” as preliminarily construed by the Board.
`
`Heil discloses Element [1.a], i.e., “a first interface configured to receive
`
`input/output (I/O) traffic from a first host device via a dedicated I/O channel, the
`
`I/O traffic comprising a read command.” Ex. 1001 at 9:20-23 (emphasis added);
`
`1
`
`
`
`IPR2023-00733
`
`Pet. at 22-25; see also Institution at 14-17. As the Petition explains, Heil discloses
`
`the claimed “first interface” (e.g., Front End I/F 102) configured to receive I/O
`
`traffic from “a first host device” (e.g., Node 1’s host system), as shown in Figure 1
`
`below:
`
`
`
`Ex. 1006, Fig. 1; see also Pet. at 22-25. The channel used by the Host-to-PCI bus
`
`bridge 115 and PCI bus 116.5 connects the host system and host bus adapter 117.
`
`Ex. 1006 at 6:33-38. That channel is “dedicated” because “it is a direct, dedicated
`
`connection between the host and the HBA that carries I/O traffic between them.”
`
`Pet. at 24.
`
`Although the POPR did not formally construe any claim terms, the Board
`
`divined a “potential claim construction dispute” from Patent Owner’s assertions.
`
`Institution at 14-15. Specifically, Patent Owner contended that Heil’s I/O channel
`
`2
`
`
`
`IPR2023-00733
`
`was not “dedicated” because it is “used for other communications besides I/O
`
`requests, for example arbitrary communications among peer CPUs,” i.e., between
`
`CPU 1 of Node 1 and CPU N+1 of Node N, for example. See id. at 15-16.
`
`The Board identified two potential constructions for “dedicated I/O
`
`channel.” Id. at 15. The first “require[ed] a node-based approach using an
`
`exclusive communication channel dedicated between two components, e.g., a
`
`central processing unit (CPU) and a peripheral I/O device, over which dedicated
`
`input/output requests are transmitted, thus precluding sharing of the channel with
`
`other CPUs and peripheral I/O devices.” Id. (emphasis in original). The second
`
`was “a channel that is dedicated exclusively for a certain type of data, i.e., I/O
`
`requests, thus encompassing load sharing configurations that share the I/O channel
`
`between multiple CPUs and I/O peripheral devices.” Id. (emphasis in original).
`
`The Board understood Patent Owner’s argument to rely on the second construction
`
`and adopted it for purposes of its Institution Decision despite the patent providing a
`
`“somewhat broader description” of the embodiment’s elements. Id. at 16-17.
`
`The Board found that “Petitioner shows sufficiently that Heil discloses a
`
`‘dedicated I/O channel’ even under” that construction. Id. at 17 (citing Nidec
`
`Motor Corp. v. Zhongshan Broad Ocean Motor Co. Matal, 868 F.3d 1013, 1017
`
`(Fed. Cir. 2017)). Specifically, the Board rejected Patent Owner’s argument that
`
`Heil’s I/O channel must be used for arbitrary communications among peer CPUs in
`
`3
`
`
`
`IPR2023-00733
`
`view of Heil’s teaching that the I/O channel could be used exclusively for I/O
`
`traffic and the “arbitrary” inter-CPU communications could be transmitted over a
`
`separate network. Id. at 27-28 (quoting Ex. 1006 at 8:18-21, 9:11-26). Thus, Heil
`
`disclosed Element [1.a] even under Patent Owner’s narrower construction.
`
`B.
`
`The POR has not justified another construction for “dedicated
`I/O channel,” but Heil would anticipate the claims regardless.
`
`Although the POR contends that the ’092 patent’s claim terms are “clear on
`
`their face,” POR at 5, Patent Owner offers an express definition for “dedicated I/O
`
`channel” that mirrors—with minor exceptions—the first construction the Board
`
`itself proposed but decided not to adopt, as illustrated in the chart below.
`
`The Board’s First Proposed
`Construction
`require[s] a node-based approach using
`an exclusive communication channel
`dedicated between two components,
`e.g., a central processing unit (CPU)
`and a peripheral I/O device, over which
`dedicated input/output requests are
`transmitted, thus precluding sharing of
`the channel with other CPUs and
`peripheral I/O devices
`
`
`See Institution at 15.
`
`POR’s Proposed
`Construction
`require[s] a node-based approach
`using an exclusive communication
`channel dedicated between two
`components, e.g., a central processing
`unit (CPU) and a peripheral I/O
`device, over which dedicated
`input/output requests are transmitted,
`thus precluding sharing of the channel
`with other CPUs and peripheral I/O
`devices
`
`See POR at 12.
`
`In support of its construction, Patent Owner cites only the same intrinsic
`
`evidence that the Board relied on to arrive at its constructions at Institution and is
`
`apparent on even cursory review of the ’092 patent. See POR at 12-14. Patent
`
`4
`
`
`
`IPR2023-00733
`
`Owner has therefore not provided the Board any basis to deviate from its
`
`preliminary construction. Regardless, Heil discloses the claimed dedicated I/O
`
`channel under Patent Owner’s new construction.
`
`If Patent Owner was merely attempting to invoke the Board’s first proposed
`
`construction, that construction does not save the claims. Heil satisfies the Board’s
`
`first proposed construction because it discloses an exclusive communication
`
`channel—e.g., Host-to-PCI bus bridge 115 and PCI bus 116.5—dedicated between
`
`two components—e.g., Front End I/F 102 and the host system of Node 1 (or the
`
`host system’s processor bus 110)—over which dedicated input/output requests are
`
`transmitted, thus precluding sharing of the channel with other interfaces or
`
`hosts/processor buses.
`
`Ex. 1006, Fig. 1.
`
`5
`
`
`
`
`
`IPR2023-00733
`
`Patent Owner’s modifications to the Board’s first proposed construction also
`
`do not save the claims. Patent Owner’s modifications omit the phrase, “e.g., a
`
`central processing unit (CPU) and a peripheral I/O device,” from the Board’s first
`
`proposed construction while retaining that proposed construction’s concluding
`
`reference to “precluding sharing of the channel with other CPUs and peripheral I/O
`
`devices.” By doing so, Patent Owner may be intending to limit the meaning of
`
`“dedicated I/O channel” to a channel running only between one “CPU” and one
`
`“peripheral I/O device” (as opposed to only between two “components”).
`
`Patent Owner’s modified construction is incorrect for two reasons. First, it is
`
`contrary to the evidence. Patent Owner offers no evidentiary basis for limiting
`
`“two components” to only one CPU and one peripheral I/O device and none is
`
`apparent from the intrinsic record. To the contrary, the ’092 patent’s specification
`
`does not even use the term “CPU” or refer to a central processing unit. Second,
`
`such a construction is indefinite. By referring to “other CPUs and peripheral I/O
`
`devices,” the construction necessarily distinguishes from an earlier-referenced
`
`CPU and peripheral I/O device. Yet Patent Owner’s modification omits the earlier-
`
`referenced CPU and peripheral I/O device from the Board’s first proposed
`
`construction. Thus, one skilled in the art would not be reasonably certain what
`
`distinction or difference is required by the construction’s use of “other.”
`
`6
`
`
`
`IPR2023-00733
`
`Heil nevertheless discloses the “dedicated I/O channel” even under Patent
`
`Owner’s narrower, modified version of the Board’s first proposed construction.
`
`Patent Owner interprets that term to require only one CPU and one peripheral I/O
`
`device with the hope that it distinguishes Heil’s I/O channel (e.g., Host-to-PCI bus
`
`bridge 115 and PCI bus 116.5), which is depicted between two CPUs (CPU 1 and
`
`CPU 2 of the single host system) and one peripheral I/O device (e.g., HBA 117).
`
`But Heil discloses that its host system may include only one CPU, Ex. 1006 at
`
`6:37-39 (“The host system includes one or more Central Processing Units.”
`
`(emphasis added)). Thus, Heil discloses the narrower requirements of Patent
`
`Owner’s unsupported construction as well.
`
`Accordingly, Heil discloses the claimed “dedicated I/O channel,” whether
`
`that term is interpreted according to the Board’s first proposed construction, the
`
`Board’s second proposed construction, or Patent Owner’s modified construction.
`
`C.
`
`Patent Owner’s remaining arguments should be rejected as they
`are identical to those the Board found unpersuasive in Patent
`Owner’s Preliminary Response.
`
`Patent Owner’s arguments are otherwise a word-for-word reproduction of
`
`the POPR’s arguments and should be rejected on the same grounds the Board
`
`identified in its Institution Decision. See, e.g., Google LLC v. Uniloc 2017 LLC,
`
`IPR2020-00756, Paper 30 at 51 (P.T.A.B. Oct. 12, 2021) (rejecting arguments
`
`made in POR that were previously made in POPR and rejected); Miami Int’l
`
`7
`
`
`
`IPR2023-00733
`
`Holdings, Inc. v. Nasdaq, Inc., CBM2018-00030, Paper 65 at 16-17 (P.T.A.B. Oct.
`
`3, 2019) (“In its [POR], Patent Owner reasserts its [POPR’s] arguments,
`
`substantially word-for-word . . . Patent Owner does not apprise us of any reason to
`
`change our determination.”); Palo Alto Networks, Inc. v. Selective Signals, LLC,
`
`IPR2018-00594, Paper 46 at 10-14 (P.T.A.B. Aug. 8, 2019) (confirming Institution
`
`Decision’s analysis where the POR repeated the same arguments from the POPR).
`
`Moreover, Patent Owner cannot introduce new argument or evidence in sur-
`
`reply. See Palo Alto Networks, IPR2018-00594, Paper 46 at 10-11 (disregarding
`
`Patent Owner’s belated sur-reply arguments and evidence).
`
`III. CONCLUSION
`
`Petitioner requests that the Board cancel claims 1-24 of the ’092 patent as
`
`unpatentable under 35 U.S.C. §§ 102 and 103.
`
`
`
`8
`
`
`
`IPR2023-00733
`
`Dated: December 22, 2023
`
`
`
`
` Respectfully submitted,
`
` / Brian C. Nash /
`Brian C. Nash, Reg. No. 58,105
`MORRISON & FOERSTER LLP
`300 Colorado St., Suite 1800
`Austin, TX 78701
`Telephone: (512) 617-0650
`Email: BNash@mofo.com
`
`Counsel for Petitioners
`
`
`
`
`
`
`
`9
`
`
`
`IPR2023-00733
`
`Certification of Word Count (37 C.F.R. § 42.24)
`
`I hereby certify that this PETITIONERS' REPLY TO PATENT OWNER’S
`
`RESPONSE has 1,562 words (as counted by the “Word Count” feature of the
`
`Microsoft Word™ word-processing system), exclusive of “a table of contents, a
`
`table of authorities, mandatory notices under § 42.8, a certificate of service or word
`
`count, or appendix of exhibits or claim listing.”
`
`Dated: December 22, 2023
`
`By: / Brian C. Nash /
` Brian C. Nash, Reg. No. 58,105
`
`10
`
`
`
`IPR2023-00733
`
`Certificate of Service (37 C.F.R. § 42.6(e)(4)
`
`I hereby certify that the attached PETITIONERS’ REPLY TO PATENT
`
`OWNER’S RESPONSE and supporting materials were served on the below date
`
`via email (by agreement) to the following counsel of record for Patent Owner:
`
`William P. Ramey, III (Registration No. 44,295)
`Jacob B. Henry (Registration No. 61,093)
`RAMEY LLP
`5020 Montrose Blvd., Ste. 800
`Houston, Texas 77006
`wramey@rameyfirm.com
`jhenry@rameyfirm.com
`uspto@rameyfirm.com
`
`
`Dated: December 22, 2023
`
`By: / Brian C. Nash /
` Brian C. Nash, Reg. No. 58,105
`
`
`
`
`11
`
`
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