Trials@uspto.gov
`571-272-7822
`
`Paper 7
`Date: February 27, 2024
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`JUNIPER NETWORKS, INC.,
`Petitioner,
`v.
`ORCKIT CORPORATION,
`Patent Owner.
`
`IPR2024-00026
`Patent 7,545,740 B2
`
`
`
`
`
`
`
`
`
`Before KRISTEN L. DROESCH, NATHAN A. ENGELS, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`DROESCH, Administrative Patent Judge.
`
`DECISION
`
`
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314, 37 C.F.R. § 42.4
`Granting Motion for Joinder
`35 U.S.C. § 315(c); 37 C.F.R. § 42.122
`
`
`
`
`
`
`571-272-7822
`
`Paper 7
`Date: February 27, 2024
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`JUNIPER NETWORKS, INC.,
`Petitioner,
`v.
`ORCKIT CORPORATION,
`Patent Owner.
`
`IPR2024-00026
`Patent 7,545,740 B2
`
`
`
`
`
`
`
`
`
`Before KRISTEN L. DROESCH, NATHAN A. ENGELS, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`DROESCH, Administrative Patent Judge.
`
`DECISION
`
`
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314, 37 C.F.R. § 42.4
`Granting Motion for Joinder
`35 U.S.C. § 315(c); 37 C.F.R. § 42.122
`
`
`
`
`
`
`
`IPR2024-00026
`Patent 7,545,740 B2
`
`I. INTRODUCTION
`A. Background
`Juniper Networks Inc. (“Petitioner”) filed a Petition requesting inter
`partes review of claims 1–31 of U.S. Patent No. 7,545,740 B2 (Ex. 1001,
`“’740 Patent”). Paper 3 (“Pet.”). Petitioner filed a Declaration of
`Henry Houh, Ph.D., with its Petition. Ex. 1003. Petitioner also filed a
`Motion for Joinder seeking to be joined as a party to Cisco Systems, Inc., v.
`Orckit Corp., IPR2023-00401 (“Cisco IPR”), which involves the same
`claims of the ’740 Patent, and for which an inter partes review was
`instituted on September 11, 2023. Paper 2 (“Motion” or “Mot.”); see also
`IPR2023-00401, Paper 10. Orckit Corporation (“Patent Owner”) did not file
`a preliminary response or an opposition to the Motion.
`We have authority to determine whether to institute review under
`35 U.S.C. § 314 and 37 C.F.R. § 42.4(a). For the reasons provided below,
`we determine that institution of inter partes review is warranted on the same
`grounds instituted in the Cisco IPR, and we grant Petitioner’s Motion for
`Joinder.
`
`B. Related Matters
`Patent Owner identifies the following related proceedings:
`Orckit Corporation v. Juniper Networks, Inc., No. 1:23-cv-00822 (D. Del.);
`Orckit Corporation v. Cisco Systems, Inc., No. 2:22-cv-00276 (E.D. Tex.);
`and Orckit Corporation v. Arista Networks, Inc., No. 1:23-cv-00821
`(D. Del.). Paper 5, 1.
`
`C. Overview of the ’740 Patent (Ex. 1001)
`The ’740 Patent “relates generally to communication networks, and
`particularly to methods and systems for link aggregation in network
`
`2
`
`
`
`IPR2024-00026
`Patent 7,545,740 B2
`elements.” Ex. 1001, 1:5–7. “Link aggregation (LAG) is a technique by
`which a group of parallel physical links between two endpoints in a data
`network can be joined together into a single logical link (referred to as the
`‘LAG group’).” Id. at 1:11–14.
`“For Ethernet™ networks, link aggregation is defined by Clause 43 of
`IEEE Standard 802.3ad, Carrier Sense Multiple Access with Collision
`Detection (CSMA/CD) Access Method and Physical Layer Specifications
`(2002 Edition), which [the ’740 Patent] incorporate[s] . . . by reference.”
`Ex. 1001, 1:17–21. “Clause 43 defines a link aggregation protocol
`sub-layer, which interfaces between the standard Media Access Control
`(MAC) layer functions of the physical links in a link aggregation group and
`the MAC clients that transmit and receive traffic over the aggregated links.”
`Id. at 1:21–26. “The link aggregation sub-layer comprises a distributor
`function, which distributes data frames submitted by MAC clients among the
`physical links in the group, and a collector function, which receives frames
`over the aggregated links and passes them to the appropriate MAC clients.”
`Id. at 1:26–30.
`“[T]wo or more physical user ports are aggregated into a LAG group
`external to the network element, so as to form an aggregated user port
`having a higher bandwidth.” Ex. 1001, 2:5–8. “Upstream data frames sent
`from the user ports to the communication network and downstream data
`frames sent from the communication network to the user ports are
`distributed among the parallel physical links, so as to balance the traffic load
`among the links.” Id. at 1:48–52.
`A “network element comprises one or more user interface modules
`(UIMs), each serving one or more user ports” and “[i]n some embodiments,
`each UIM is connected to the communication network using two or more
`
`3
`
`
`
`IPR2024-00026
`Patent 7,545,740 B2
`physical links arranged in parallel.” Ex. 1001, 1:42–45. “[T]he UIMs are
`coupled to a backplane of the network element and the parallel physical
`links comprise backplane traces” and “are configured as an
`Ethernet. . . LAG[] group.” Id. at 1:56–60.
`Unlike some known network element configurations, in which
`each user port is fixedly assigned to a specific backplane trace,
`the load balancing operation . . . of the present invention
`enables statistical multiplexing of the frames[ whereby] there is
`no direct relationship or connection between user ports and
`backplane traces.
`Id. at 1:66–2:4.
`Figure 2 of the ’740 Patent is reproduced below.
`
`
`
`Figure 2 depicts a block diagram of communication system 20. See
`Ex. 1001, 3:55–57, 6:15–17. “System 20 interconnects a plurality of user
`ports 24 to a communication network 28.” Id. at 4:5–8. “[S]ystem 20
`provides data services to users via network element 32 . . . [and] us[ing] a
`Layer 2 communication protocol . . . in which data is transferred . . . using
`
`4
`
`
`
`IPR2024-00026
`Patent 7,545,740 B2
`Ethernet frames.” Id. at 4:19–23. “[N]etwork element 32 . . . connects user
`ports 24 to a node 36 in network 28 . . . [and] via a network processor
`(NP) 38.” Id. at 4:12–14. “[A] number of user ports 24 are configured to
`form an aggregated user port 64” because “a particular user requires a
`bandwidth higher than the bandwidth of a single user port 24.” Id.
`at 6:17–21. “Network element 32 comprises one or more user interface
`modules (UIMs), such as line cards 40[, where e]ach . . . is assigned to
`process data frames of one or more user ports.” Id. at 4:28–30.
`“[B]ackplane 52 . . . distributes . . . the frames to and from line cards 40.”
`Id. at 4:32–33. “Backplane 52 comprises physical links such as backplane
`traces 56.” Id. at 4:34–35.
`“A multiplexer (MUX) 44 is coupled to backplane traces 56.”
`Ex. 1001, 4:38. “MUX 44 multiplexes upstream frames coming out of line
`cards 40 to produce an upstream output . . . provided to network
`processor 38 . . . [and] then sent by network processor 38 via a network
`connection 48 to network 28.” Id. at 4:38–43. “[N]etwork processor 38 . . .
`accepts . . . downstream frames addressed to user ports 24 from node 36”
`and “MUX 44 sends each frame to the appropriate user port via the
`appropriate line-card.” Id. at 4:43–48.
`“Ethernet frames are statistically multiplexed so as to balance the load
`among the backplane traces.” Ex. 1001, 5:19–21. “[T]o achieve load
`balancing, each group of backplane traces belonging to a particular line card
`is configured as an Ethernet link aggregation (LAG) group 58” and
`“considered by the relevant line card and [MUX] 44 to be a single logical
`link having an aggregated bandwidth (i.e., capacity) equal to the sum of the
`bandwidths of the individual backplane traces in the group.” Id. at 5:10–16.
`“As a result, there is no pre-assigned relationship or connection between any
`
`5
`
`
`
`IPR2024-00026
`Patent 7,545,740 B2
`given user port 24 and a specific backplane trace 56.” Id. at 5:17–19.
`“Ethernet frames are mapped to individual backplane traces in the LAG
`group in accordance with a . . . mapping function [that] distributes the
`frames . . . so as to balance the load between the traces.” Id. at 5:22–26.
`“User ports 24 forming port 64 are configured as an Ethernet LAG
`group[ constituting] an external LAG group 68.” Ex. 1001, 6:21–23. “Thus,
`the bandwidth of port 64 is generally equal to the sum of bandwidths of the
`individual user ports 24 in external LAG group 68[ and] in both upstream
`and downstream directions.” Id. at 6:23–26. “[A] particular line card 40
`may have some of its user ports 24 assigned to an external LAG group and
`other user ports 24 used individually or assigned to another external LAG
`group.” Id. at 6:29–31.
`
`D. Illustrative Claim
`Claims 1, 4, 5, 13–15, 17, 19, 20, and 28–30 are independent, and
`remaining claims 2, 3, 6–12, 16, 18, 21–27, and 31 depend directly or
`indirectly therefrom, respectively. See Ex. 1001, 10:64–16:35. Claim 1 is
`reproduced below:
`1. A method for communication, comprising:
`coupling a network node to one or more interface modules
`using a first group of first physical links arranged in parallel
`at least one of said first physical links being a bi-directional
`link operative to communicate in both an upstream direction
`and a downstream direction;
`coupling each of the one or more interface modules to a
`communication network using a second group of second
`physical links arranged in parallel, at least one of said
`second physical links being a bi-directional link operative to
`communicate in both an upstream direction and a
`downstream direction;
`receiving a data frame having frame attributes sent between the
`communication network and the network node;
`
`6
`
`
`
`IPR2024-00026
`Patent 7,545,740 B2
`selecting, in a single computation based on at least one of the
`frame attributes, a first physical link out of the first group
`and a second physical link out of the second group; and
`sending the data frame over the selected first and second
`physical links,
`said sending comprising communicating along at least one of
`said bi-directional links.
`Id. at 10:65–11:20.
`E. Asserted Patentability Challenges and Asserted Prior Art
`Petitioner asserts that claims 1–31 are unpatentable on the following
`grounds (Pet. 2):
`Claim(s) Challenged
`1–31
`1–31
`11, 26
`11, 26
`
`Reference(s)/Basis
`Bruckman2
`Bruckman, Basso3
`Bruckman, Holdsworth4
`Bruckman, Basso, Holdsworth
`
`35 U.S.C. §
`103(a)1
`103(a)
`103(a)
`103(a)
`
`II. ANALYSIS
`Joinder for purposes of an inter partes review is governed by 35
`U.S.C. § 315(c), which states:
`JOINDER.—If the Director institutes an inter partes
`review, the Director, in his or her discretion, may join as a party
`to that inter partes review any person who properly files a
`petition under section 311 that the Director, after receiving a
`preliminary response under section 313 or the expiration of the
`
`
`1 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
`(2011), amended 35 U.S.C. § 103 effective March 16, 2013. Because the
`’740 Patent claims an effective filing date prior to March 16, 2013, we refer
`to the pre-AIA version of § 103.
`2 US 2004/022827 A1, published Nov. 18, 2004 (Ex. 1005).
`3 US 2003/021068 A1, published Nov. 13, 2003 (Ex. 1006).
`4 Holdsworth et al., Digital Logic Design, Elsevier Science, 2002
`(ISBN 0 7506 45882) (Ex. 1007).
`
`7
`
`
`
`IPR2024-00026
`Patent 7,545,740 B2
`time for filing such a response, determines warrants the
`institution of an inter parties review under section 314.
`“To join a party to an instituted [inter partes review (IPR)], the plain
`language of § 315(c) requires two different decisions.” Facebook, Inc. v.
`Windy City Innovations, LLC, 973 F.3d 1321, 1332 (Fed. Cir. 2020). “First,
`the statute requires that the Director (or the Board acting through a
`delegation of authority . . . ) determine whether the joinder applicant’s
`petition for IPR ‘warrants’ institution under § 314.” Id. “Second, to effect
`joinder, § 315(c) requires the Director to exercise [her] discretion to decide
`whether to ‘join as a party’ the joinder applicant.” Id. The standard for
`instituting an inter partes review is set forth in 35 U.S.C. § 314(a), which
`provides that an inter partes review may not be instituted unless the
`information presented in the petition and any preliminary response shows
`“there is a reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.”
`The patentability challenges in the Cisco IPR met the “reasonable
`likelihood” standard of § 314(a). IPR2023-00401, Paper 10, 30–31. The
`Petition here presents the same patentability challenges as those for which a
`trial was instituted in the Cisco IPR. See Mot. 4 (“[This] Petition is
`substantively identical to the Cisco IPR and relies on identical exhibits.”);
`compare Pet. 1–74, with IPR2023-00401, Paper 2, 9–79. According to
`Petitioner, the “[t]he same claims of the same patent are challenged under
`the same unpatentability grounds as the Cisco IPR.” Mot. 4. In the present
`proceeding, Patent Owner did not file a preliminary response to dispute the
`merits of Petitioner’s patentability challenges.
`For the reasons set forth in the Cisco IPR, we conclude that Petitioner
`has demonstrated a reasonable likelihood of prevailing with respect to the
`
`8
`
`
`
`IPR2024-00026
`Patent 7,545,740 B2
`challenged claims of the ’740 Patent. See IPR2023-00401, Paper 10, 19–37.
`We accordingly determine that the Petition warrants institution under § 314,
`and turn to Petitioner’s request for joinder.
`As the moving party, Petitioner has the burden of proof in establishing
`entitlement to the requested relief. 37 C.F.R. §§ 42.20(c), 42.122(b).
`Petitioner filed the Motion on October 10, 2023, within one month of
`institution of the Cisco IPR. See 37 C.F.R. § 42.122(b). Petitioner asserts
`that the Motion should be granted because the joinder “won’t impact the
`Cisco IPR trial schedule in any meaningful way.” Mot. 5. Petitioner also
`agrees to take an “understudy” role in the Cisco IPR. See Mot. 5–7.
`Specifically, Petitioner agrees to the following: (1) Petitioner “won’t make
`any substantive filings, and . . . agrees that Cisco alone will be responsible
`for all substantive petitioner filings in the joined proceeding;” (2) “to be
`bound by all filings by Cisco in the joined proceeding, except for filings
`regarding termination and settlement;” (3) Petitioner “must obtain prior
`Board authorization to file any paper or to take any action on its own in the
`joined proceeding;” (4) Petitioner “shall not be permitted to raise any new
`grounds not already instituted by the Board in the Cisco IPR, or introduce
`any argument or discovery not already introduced by Cisco;” (5) Petitioner
`“shall be bound by any agreement between Patent Owner and Cisco
`concerning discovery and depositions;” (6) Petitioner “will not cross-
`examine or defend any witness at deposition;” (7) “Cisco will be responsible
`for any oral hearing presentation, including the preparation of demonstrative
`exhibits”; and (8) “Should Cisco cease participation in the proceeding[,
`Petitioner] would assume a primary role, meaning it would take over the role
`previously filled by Cisco.” Mot. 6. As mentioned before, Patent Owner did
`not file an opposition to the Motion.
`
`9
`
`
`
`IPR2024-00026
`Patent 7,545,740 B2
`Because Petitioner will take an understudy role that will not impact
`the Cisco IPR which was instituted on identical grounds, we determine that
`it is appropriate under these circumstances to join Petitioner as a party to the
`Cisco IPR.
`
`III. ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that, pursuant to 35 U.S.C. § 314(a), an inter partes
`review of claims 1–31 of the ’740 Patent is instituted with respect to all of
`the grounds set forth in the Petition; and
`FURTHER ORDERED that Petitioner’s Motion for Joinder with
`IPR2023-00401 is granted, and Petitioner is hereby joined as a petitioner in
`IPR2023-00401;
`FURTHER ORDERED that the grounds on which trial in IPR2023-
`00401 were instituted are unchanged, and no other grounds are added in
`IPR2023-00401;
`FURTHER ORDERED that the Scheduling Order entered in
`IPR2023-00402 (Paper 11) and the schedule changes agreed to by the parties
`in IPR2023-00402 (Paper 20) shall govern the trial schedule in IPR2023-
`00401;
`FURTHER ORDERED that Petitioner’s role in IPR2023-00401 shall
`be limited as stated by Petitioner in the Motion for Joinder (Paper 2, 5–7)
`unless and until Cisco is terminated from that proceeding;
`FURTHER ORDERED that the case caption in IPR2023-00401 shall
`be changed to reflect joinder of Juniper Networks, Inc. in accordance with
`the attached example;
`
`10
`
`
`
`IPR2024-00026
`Patent 7,545,740 B2
`FURTHER ORDERED that a copy of this Decision be entered into
`the record of IPR2023-00401; and
`FURTHER ORDERED that all further filings shall be made in
`IPR2023-00401.
`
`11
`
`
`
`IPR2024-00026
`Patent 7,545,740 B2
`FOR PETITIONER:
`
`Kyle Tsui
`Andrew Ramos
`Kyle.tsui@fischllp.com
`Andrew.ramos@fischllp.com
`
`
`FOR PATENT OWNER:
`
`James T. Carmichael
`Stephen McBride
`jim@carmichaelip.com
`stevemcbride@carmichaelip.com
`
`
`
`
`
`
`
`
`12
`
`
`
`IPR2024-00026
`Patent 7,545,740 B2
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`CISCO SYSTEMS, INC. AND JUNIPER NETWORKS, INC.,5
`Petitioner,
`v.
`ORCKIT CORPORATION,
`Patent Owner.
`
`IPR2023-00401
`Patent 7,545,740 B2
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`5 Juniper Networks, Inc. filed a motion for joinder and a petition in
`IPR20240-00034, which were granted. Accordingly, Juniper Networks, Inc
`has been joined as a petitioner in this proceeding.
`
`13
`
`
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