Trials@uspto.gov
`571-272-7822
`
`Paper 79
`Entered: November 14, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`INTEL CORPORATION, CAVIUM, LLC, and DELL, INC.,
`Petitioner,
`
`V.
`
`ALACRITECH, IN0,
`Patent Owner.
`
`Case IPR2017-01409
`
`Patent 8,131,880 B21
`
`Before STEPHEN C. SIU, DANIEL N. FISHMAN, and
`CHARLES J. BOUDREAU, Administrative Patent Judges.
`
`SIU, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`
`35 U.S.C. § 318(a)
`
`1 Cavium, Inc., which filed a Petition in Case IPR2017-01736, and Dell,
`Inc., which filed a Petition in Case IPR2018—00338, were joined as
`petitioners in this proceeding. According to updated mandatory notices filed
`in this proceeding, Cavium, Inc. has now been converted to Cavium, LLC.
`Paper 74.
`
`
`571-272-7822
`
`Paper 79
`Entered: November 14, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`INTEL CORPORATION, CAVIUM, LLC, and DELL, INC.,
`Petitioner,
`
`V.
`
`ALACRITECH, IN0,
`Patent Owner.
`
`Case IPR2017-01409
`
`Patent 8,131,880 B21
`
`Before STEPHEN C. SIU, DANIEL N. FISHMAN, and
`CHARLES J. BOUDREAU, Administrative Patent Judges.
`
`SIU, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`
`35 U.S.C. § 318(a)
`
`1 Cavium, Inc., which filed a Petition in Case IPR2017-01736, and Dell,
`Inc., which filed a Petition in Case IPR2018—00338, were joined as
`petitioners in this proceeding. According to updated mandatory notices filed
`in this proceeding, Cavium, Inc. has now been converted to Cavium, LLC.
`Paper 74.
`
`
`
`IPR2017-01409
`
`Patent 8,131,880 B2
`
`1. INTRODUCTION
`
`Responsive to the filed Petition (Paper 1, “Pet.”), we instituted an
`
`inter partes review of all challenged claims (claims 1, 5—10, 12, 14, 16, 17,
`
`20—23, 27, 28, 45, and 55) ofU.S. Patent No. 8,131,880 B2 (“the ’880
`
`patent,” Ex. 1001). Paper 8 (“Dec”). Alacritech, Inc. (“Patent Owner”)
`
`filed a Corrected Patent Owner’s Response (Paper 32, “PO Resp”) and Intel
`
`Corporation filed a Petitioner Reply (Paper 42, “Pet. Reply”). Responsive to
`
`petitions and requests for joinder filed in IPR2017-01736 and IPR2018-
`
`00338, we joined Cavium, Inc. (now Cavium, LLC) and Dell, Inc.,
`
`respectively, as petitioners in this proceeding. Paper 8 in IPR2017-01736;
`
`Paper 9 in IPR2018-00338. According to updated mandatory notices filed in
`
`this proceeding, Cavium, Inc. has now been converted to Cavium, LLC.
`
`Paper 74. Petitioners Intel Corporation, Cavium, LLC, and Dell, Inc. are
`identified herein collectively as “Petitioner.”
`4
`
`Patent Owner filed a Contingent Motion to Amend (Paper 20),
`
`Petitioner filed an Opposition to Patent Owner’s Contingent Motion to
`
`Amend (Paper 38), Patent Owner filed a Reply to Petitioner’s Opposition
`(Paper 43), and, pursuant to our having granted leave, Petitioner filed a Sur—
`
`Reply (Paper 50).
`
`Petitioner filed a Motion to Exclude (Paper 55), Patent Owner filed an
`
`Opposition (Paper 60), and Petitioner filed a Reply to Patent Owner’s
`
`Opposition (Paper 62).
`
`Patent Owner filed a Motion to Exclude (Paper 56), Petitioner filed an
`
`Opposition (Paper 59), and Patent Owner filed a Reply to Patent Owner’s
`
`Opposition (Paper 63).
`
`Patent Owner filed a Motion to Seal (Paper 30).
`
`
`
`IPR2017-01409
`
`Patent 8,131,880 B2
`
`A transcript of an oral hearing held on September 13, 2018 (Paper 75)
`
`has been entered into the record.
`
`We have jurisdiction under 35 U.S.C. § 6. This Final Written
`
`Decision is issued pursuant to 35 U.S.C, § 318(a). We base our decision on
`
`the preponderance ofthe evidence. 35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d).
`
`Having reviewed the arguments of the parties and the supporting
`
`evidence, we conclude that Petitioner has demonstrated by a preponderance
`
`of the evidence that the challenged claims are unpatentable. We also deny
`
`Petitioner’s Motion to Exclude, dismiss Patent Owner’s Motion to Exclude,
`grant Patent Owner’s Motion to Seal, and deny Patent Owner’s Contingent
`
`Motion to Amend.
`
`THE ’880 PATENT (EXHIBIT 1001)
`
`The ’880 patent describes a system and method for performing
`
`network processing tasks on a network interface card. Ex. 1001', 3:45—47.
`
`ILLUSTRATIVE CLAIM
`
`Claim 1, reproduced below, is illustrative of the claimed subject
`
`matter:
`
`to a host
`A method of transferring a packet
`1.
`system, wherein the packet
`is
`received at a
`computer
`communication device from a network, comprising:
`parsing a header portion of a first packet received at a
`network interface for the host computer system to determine if
`said first packet conforms to a TCP protocol;
`generating a flow key to identify a first communication
`flow that
`includes said first packet, wherein said flow key
`includes a TCP connection for the communication flow;
`associating an operation code with said first packet,
`wherein said operation code indicates a status of said first packet,
`
`3
`
`
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`IPR2017-01409
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`Patent 8,131,880 B2
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`including whether said packet is a candidate for transfer to the
`host computer system that avoids processing said header portion
`by the host computer system in accordance with said TCP
`protocol; and
`said packet
`processing, by the network interface,
`according to the TCP connection, including updating a control
`block representing the TCP connection on the network interface.
`
`Id. at 89:59—90:1 1.
`
`. GROUNDS OF INSTITUTION
`
`We instituted trial on claims 1, 5—10, 12, 14, 16, 17, 20—23, 27, 28,
`
`45, and 55 as unpatentable under 35 U.S.C. § 103 over Thia2 and
`
`Tanenbaum,3 which is the only proposed challenge to patentability stated in
`
`the Petition. Pet. 14.
`
`ANALYSIS
`
`Petitioner argues that the combination of Thia and Tanenbaum
`
`discloses parsing a header portion of a packet received at a network interface
`
`for a host computer system to determine if the packet conforms to a TCP
`
`protocol and generating a flow key to identify a communication flow that
`
`includes the packet, wherein the flow key includes a TCP connection for the
`
`communication flow, as recited in claim 1. We agree with Petitioner for at
`
`least the previously discussed reasons. See, e.g., Dec. 6—8.
`
`2 Y.H. Thia and CM. Woodside, “A Reduced Operation Protocol Engine
`(ROPE) for a Multiple-Layer Bypass Architecture,” 1995 (“Thia,” Ex.
`1015).
`3 Andrew S. Tanenbaum, Computer Networks, Third Edition, 1996
`(“Tanenbaum,” Ex. 1006).
`
`
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`IPR2017-01409
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`Patent 8,131,880 B2
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`Claim 1 recites an “operation code” that indicates whether the packet
`
`is a candidate for avoiding processing of the header portion by the host
`
`computer system in accordance with TCP protocol. Petitioner argues that
`
`the combination of Thia and Tanenbaum discloses this feature. For
`
`example, Petitioner argues that Thia discloses determining whether to
`
`“process[] the packet according to .
`
`.
`
`. fast-path processing bypass [i.e.,
`
`avoiding processing by the host computer system, as recited in claim 1]”
`
`based on “match[ing] the incoming .
`
`.
`
`. headers with [a] template that
`
`identifies the .
`.
`. bypassable headers” or by “a flag [that] is set signifying
`that a packet can be fast-pathed.” Pet. 47—50. See also Dec. 8—9. We agree
`
`with Petitioner. As Petitioner indicates, Thia discloses, for example,
`
`matching a header to identify data packets for “fast-path processing bypass,”
`
`as recited in claim 1.
`Patent Owner argues that “Petitioners tacitly admit there is no explicit
`
`disclosure in Thia or Tanenbaum of the claimed ‘operation code,”’ that
`“Thia does not use an ‘operation code’ for the routing of PDUs,” and that
`
`Thia only discloses a “PDU header” that “does not contain the operation
`code.” PO Resp. 32, 34, 42—43. Patent Owner also argues that “the
`
`obviousness inquiry requires the cited art contain ‘suggestion of all
`
`limitations in the claim.”’ PO Resp. 38—39. To the extent that Patent
`
`Owner argues that Thia fails to refer to matching a header to indicate
`
`whether the packet is a candidate for avoiding processing by the host
`
`computer (i.e., fast-path processing) as an “operation code,” we are not
`
`persuaded by Patent Owner’s argument at least because this is not an
`
`“ipsissz'mis verbis” test. In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990).
`
`Patent Owner does not explain a sufficient difference between matching a
`
`
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`IPR2017-01409
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`Patent 8,131,880 B2
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`header to determine if a packet is a candidate for avoiding processing by the
`
`host computer (i.e., fast-path processing) of Thia and the claimed “operation
`
`code” that is also for determining if a packet is a candidate for avoiding
`
`processing by the host computer.
`
`Patent Owner argues that Thia “pass[es] the PDU to the Protocol
`
`Processing Engine .
`
`.
`
`. for processing by the bypass stack” but “does not
`
`need to also associate the PDU with an operation code indicating that the
`
`PDU is bypassable,” and that Thia fails to disclose “associating .
`
`.
`
`. a
`
`component [i.e., an “operation code”] with the PDU.” PO Resp. 42—43. To
`
`the extent that Patent Owner argues that an “operation code” must be
`
`“associated” with a data packet by indicating whether the packet is a
`
`candidate for avoiding processing by the host computer system, as recited in
`
`claim 1, for example, we agree with Petitioner that Thia discloses this
`
`feature for at least the previously discussed reasons. For example, Thia
`
`discloses indicating that a packet is bypassable by “match[ing] the incoming
`
`PDU headers with a template that identifies the predicted bypassable
`
`headers.” Ex. 1015, .003. One of skill in the art would have understood
`
`that the matching of the header of the packet to a template would have been
`“associated” with the packet itself, Otherwise, the header of the packet
`
`would not have been matched with the template, the packet itself having no
`
`“association” with the matching.
`
`Also, as Petitioner points out, Thia discloses,
`
`The “no-in-transit PDU” test can often be avoided. At the
`beginning of data transfer on a new connection,
`it
`is
`automatically satisfied.
`It holds as long as no packet fails a
`bypass test, and it is sufficient to maintain a flag to indicate this.
`Once a packet fails, and goes to the SPS, then a full “no—in-transit
`
`
`
`1PR2017-01409
`
`Patent 8,131,880 B2
`
`PDU” test must be performed for each packet until the test
`succeeds, after which control can go back to the flag.
`
`Ex. 1015, .003. Thus, Thia’s flag is used to indicate whether any packet
`
`“fails a bypass test.” Once one packet fails the bypass test, requiring
`
`processing by the host protocol stack (SPS), a more complete test (full no-in-
`
`transit PDU) must be performed on each packet until a next packet passes
`
`the full test and the quicker bypass test can be resumed. Therefore, Thia’s
`
`flag indicates that the long “no-in-transit PDU” test may be avoided for
`
`packets, in favor of the quicker bypass test, until a packet fails the quick
`
`bypass test. The ordinarily skilled artisan would have understood Thia’s
`
`flag is associated with a packet. More precisely, Thia’s flag appears to be a
`
`global flag associated with the processing of all received packets rather than
`
`a unique flag associated only with a single corresponding received packet.
`
`However, the claims don’t preclude such a global association with all
`
`received packets.
`
`Patent Owner argues that Thia fails to disclose an “operation code,” as
`
`recited in claim 1 because, according to Patent Owner, Thia merely
`
`“determin[es] whether .
`
`.
`
`. there are outstanding packets on the current path”
`
`and is “not about a packet’s eligibility for bypass or fast-[path] processing.”
`
`PO ReSp. 35-37. We agree with Patent Owner that Thia discloses that
`
`“checks are performed to ensure that there are no outstanding packets in the
`
`current path.” Ex. 1015, .003. However, we disagree with Patent Owner’s
`
`implied argument that because Thia discloses determining “whether .
`
`.
`
`.
`
`.
`
`there are outstanding packets on the current path,” that Thia therefore
`
`somehow fails to disclose the “operation code,” as claimed. For at least the
`
`
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`IPR2017-01409
`
`Patent 8,131,880 B2
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`previously stated reasons, we agree with Petitioner that Thia discloses this
`
`feature.
`
`Patent Owner argues that Thia fails to provide a “disclosure or
`
`suggestion of using an operation code to call the BYPASS_START
`
`procedure” and that doing so “would have been superfluous and unnecessary
`
`in view of Thia’s architecture.” PO ReSp. 39—40. Even assuming Patent
`
`Owner’s contention to be correct that Thia fails to disclose using an
`
`operation code specifically to call a “BYPASS_START procedure,” we are
`
`still not persuaded by Patent Owner’s implied argument that Thia therefore
`
`somehow also fails to disclose indicating, with an operation code, whether a
`
`packet is a candidate for avoiding processing by the host computer (i.e., fast-
`
`path processing). As previously discussed, Thia discloses this feature.
`
`Patent Owner argues that Thia discloses a “feasibility study on the
`
`theoretical benefits of bypassing,” and, therefore, according to Patent
`
`Owner, discloses “at best .
`
`.
`
`. an inoperative device.” PO Resp. 20. We are
`
`not persuaded by Patent Owner at least because Thia does not, in fact,
`
`disclose that the system is an “inoperative device.” Nor does Patent Owner
`
`explain the relevance of an embodiment of Thia being “inoperative” or
`
`“operative” to whether the combination of Thia and Tanenbaum discloses or
`
`suggests the claimed invention under 35 U.S.C. § 103(a). See, e.g., Symbol
`
`Techs. Inc. v. Opticon Inc, 935 F.2d 1569, 1578 (Fed. Cir. 1991) (“[A] non—
`
`enabling reference may qualify as prior art for the purpose of determining
`
`obviousness under § 103.”)
`
`Patent Owner argues that “Thia is not directed to .
`
`.
`
`. TCP/IP, which
`
`does not fit the OSI model” and “nowhere discloses that its bypass
`
`architecture is compatible with TCP/IP.” PO Resp. 26. We are not
`
`
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`IPR2017-01409
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`Patent 8,131,880 B2
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`persuaded by Patent Owner’s arguments. Even assuming Patent Owner’s
`
`contention to be correct that Thia fails to disclose “TCP/1P,” Patent Owner
`
`does not assert or demonstrate sufficiently that the combination of Thia and
`
`Tanenbaum also fails to disclose or suggest “TCP/1P.” For at least the
`
`reasons previously discussed, we agree with Petitioner that the combination
`
`of Thia and Tanenbaum discloses or suggests this feature. See e. g., Pet.
`
`30—35, 51—57; see also Dec. 7.
`
`In any event, we note that Thia discloses a system that is “based
`
`on .
`
`.
`
`. a generalization of Jacobson's ‘Header Prediction’ algorithm .
`
`.
`
`. for
`
`TCP/1P.” Ex. 1015, .002. Patent Owner argues that Thia fails to disclose
`
`“TCP/1P” but does not explain why a skilled artisan would not have applied
`
`Thia’s teachings that generalize from TCP/1P to the specific case of TCP/IP
`
`itself.
`
`Patent Owner argues that “Tanenbaum teaches away from performing
`
`any TCP/IP protocol processing on anything other than the host CPU”
`
`because “Tanenbaum identifies myriad difficulties with implementing TCP
`
`header bypass in a chip separate from the host CPU and advises against
`
`attempting such an implementation.” PO ReSp. 28—29 (citing Ex. 1006,
`
`.588—.89). However, the cited portion of Tanenbaum discloses that if an
`
`effort is made to “avoid having the network coprocessor be as expensive as
`
`the main CPU, it is often a slower chip,” which results in the “(fast) CPU
`
`[being] idle waiting for the second (slow) CPU to do the critical work.” Ex.
`
`1006, 588—589. Hence, contrary to Patent Owner’s contention that
`
`Tanenbaum discloses “myriad difficulties” with “implementing TCP,”
`
`Tanenbaum actually discloses that the system may not be optimal if a less
`
`“expensive” CPU is selected and the “slow CPU” “do[es] the critical wor ,”
`
`
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`IPR2017-01409
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`Patent 8,131,880 B2
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`which does not pertain to “implementing TCP.” We are not persuaded by
`
`Patent Owner’s argument.
`
`With respect to claim 17 and claim 45, Patent Owner argues that the
`
`combination of Thia and Tanenbaum fails to disclose an “operation code”
`
`and, therefore, cannot “possibly disclose the claimed ‘storing said operation
`
`code in a control memory” and that “neither Thia nor Tanenbaum discloses
`
`an operation code.” PO Resp. 44—45. As previously discussed, however, we
`
`agree with Petitioner that the combination of Thia and Tanenbaum discloses
`
`the claimed “operation code.” For example, as Petitioner explains, one of
`
`skill in the art would have understood that an operation code would have
`
`been stored in a control register of Thia. See, e. g., Pet. 72. See also above
`
`discussion.
`
`Claim 55 recites transferring data without transferring the transport
`
`layer header. Petitioner argues that Tanenbaum discloses “receiving a
`
`second packet .
`
`.
`
`. where the packet has a transport header and data” and that
`
`Thia discloses that “[t]he data portion of a PDU may be physically moved
`
`for .
`
`.
`
`. [c]opying between the adaptor buffer and the host system memory.”
`
`Pet. 85—87. We have reviewed the cited portions and agree that the
`
`combination of Thia and Tanenbaum discloses receiving a second packet
`
`having a transport header and data (Tanenbaum) and that the “data portion”
`
`of the packet is “physically moved” (or transferred) to the host system
`
`memory.
`
`Patent Owner argues that Thia “merely states that the data portion of a
`
`packet may be copied” but “does not disclose or even suggest copying the
`
`. data portion of a PDU without transferring the corresponding transport
`
`layer header.” PO Resp. 46—47. However, as Petitioner points out, the
`
`10
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`IPR2017-01409
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`Patent 8,131,880 B2 ,
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`combination of Thia and Tanenbaum discloses receiving a packet with a
`
`header and data portion and transferring the “data portion” of the packet to
`
`the host system memory. Patent Owner does not assert or demonstrate
`
`persuasively that Thia also discloses transferring the “header portion” of the
`
`packet to the host system memory. We are not persuaded by Patent Owner’s
`
`argument. A skilled artisan would have understood that the data portion of
`
`the packet is transmitted to the host computer without the header.
`
`Patent Owner does not dispute other claim limitations of claim 1.
`
`Patent Owner has accordingly waived any such arguments per the
`
`Scheduling Order (Paper 9, 3 (“The patent owner is cautioned that any
`
`arguments for patentability not raised in the response will be deemed
`waived.”))
`'
`
`Patent Owner does not dispute the other challenged claims.
`
`Combinability
`
`Petitioner argues that it would have been obvious to one of ordinary
`
`skill in the art to have combined the teachings of Thia and Tanenbaum. Pet.
`
`30—35. In particular, Petitioner argues that Thia discloses that one of
`
`ordinary skill in the art would have known and understood “protocol
`
`processing of layered protocols,” “would have recognized that OS1 and
`
`TCP/IP share many similarities,” and that the “architecture of the bypass
`
`implementation” is used for “any standard protocol.” Pet. 30—31; Ex. 1015,
`
`.003. Petitioner also argues that Tanenbaum discloses a similar system that
`
`“predict[s] [whether] packets are eligible for fast-path processing” including
`
`“Header Prediction” and that “TCP implementations use it.” Pet. 32 (citing
`
`Ex. 1006, 584—585). Hence, as Petitioner points out, it would have been
`
`11
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`Patent 8,131,880 B2
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`obvious to one of ordinary skill in the art to have combined the known
`process of “header prediction” in “fast-path processing” with “protocol
`
`processing of layered protocols” using “any standard protocol’ (i.e., Thia)
`
`with the known system of “header prediction” in “fast-path processing” (i.e.,
`
`Thia or Tanenbaum) using “TCP implementations” (i.e., Tanenbaum) as a
`
`known “standard protocol” (i.e., Thia and Tanenbaum) to achieve the
`
`predictable and expected result of a system for “fast-path processing” using
`
`“any standard protocol” such as “TCP implementations.” We are persuaded
`
`by Petitioner’s arguments. “The combination of familiar elements according
`
`to known methods is likely to be obvious when it does no more than yield
`
`predictable results.” KSR Int’l Co. v. Teleflex, Inc, 550 US. 398, 416
`
`(2007).
`
`Patent Owner argues that it would not have been obvious to one of
`
`ordinary skill in the art to have combined the teachings of Thia and
`
`Tanenbaum because, according to Patent Owner, Tanenbaum discloses a
`
`system that “does not introduce a separate processor” but that Thia
`
`supposedly discloses a system that has a separate processor. PO Resp. 49.
`
`In other words, Patent Owner argues that it would not have been obvious to
`
`one of ordinary skill in the art to have bodily incorporated the processor of
`
`Thia into the system of Tanenbaum (or vice versa). We are not persuaded
`
`by Patent Owner’s argument at least because “[t]he test for obviousness is
`
`not whether the features of'a secondary reference may be bodily
`
`incorporated into the structure of the primary reference. .
`
`.
`
`. Rather, the test
`
`is what the combined teachings of those references would have suggested to
`those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA
`
`1981).
`
`12
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`Patent Owner further argues that it would not have been obvious to
`
`one of ordinary skill in the art to have combined the teachings of Thia and
`
`Tanenbaum because “Tanenbaum explains that the lack of interest in OSI
`
`was due .
`
`.
`
`. to ‘the enormous complexity of the [OSI] model and the
`
`protocols” and that, according to Patth Owner, there was an “undisputed
`
`lack of interest in OSI in the relevant timeframe.” PO Resp. 51. However,
`
`as previously discussed, Petitioner relies on Tanenbaum for disclosing
`
`TCP/IP and not OSI. Even assuming Patent Owner’s contention to be
`
`correct that Tanenbaum supposedly discloses a “lack of interest in OSI,”
`
`Patent Owner does not assert or demonstrate persuasively that this presumed
`
`disclosure regarding an alleged “lack of interest in OSI” sufficiently refutes
`
`Petitioner’s showing of obviousness of the disputed claims over the
`
`combination of Thia and Tanenbaum.
`
`Patent Owner also argues that it would not have been obvious to one
`
`of ordinary skill in the art to have combined the teachings of Thia and
`
`Tanenbaum because Thia allegedly discloses that “its bypass architecture
`
`can be used with ‘any standard protocol’” but supposedly intends to disclose
`
`that “any standard protocol” includes only “OSI protocols” because “Thia
`
`refers to concepts and features that are part of the OSI model, not the TCP/IP
`
`model.” PO Resp. 51. We are not persuaded by Patth Owner’s argument at
`
`least because Patent Owner does not provide sufficient evidence supporting
`
`Patent Owner’s allegation that one of skill in the art would have understood
`that Thia intended to disclose “any OSI protocol” but inadvertently discloses
`
`“any standard protocol.” We agree with Petitioner (Pet. 30—35 (citing Ex.
`
`1003)) that “Thia’s bypass stack is a generalization of the .
`
`.
`
`. algorithm for
`
`TCP/IP” and is not “confined to the OSI protocol.” Pet. Reply 9. In
`
`13
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`addition, we agree that one of ordinary skill in the art, when confronted with
`
`the phrase “any standard protocol,” as disclosed by Thia, would have
`
`understood the phrase to mean “any standard protocol” and would have not
`
`instead understood the phrase to mean something else — namely, “any OSI
`
`protocol.” Even assuming Thia discloses “any standard OSI protocol” (Thia
`
`does not disclose this limitation, however), Patent Owner does not
`
`sufficiently demonstrate that one of skill in the art would have understood
`
`“any standard OSI protocol” to also mean “but not the TCP/IP protocol.”
`
`Patent Owner also argues that it would not have been obvious to one
`
`of ordinary skill in the art to have combined the teachings of Thia and
`
`Tanenbaum because Thia supposedly discloses “an easy migration pat ” by
`
`“modify[ing] existing OSI stack software” but supposedly fails to disclose
`
`“modifying TCP/IP stack software.” PO Resp. 53. We are not persuaded
`
`by Patent Owner’s argument at least because the Petitioner’s showing of
`
`obviousness of the claimed invention is based on the combination of Thia
`
`and Tanenbaum and not based on Thia alone.
`
`Secondag Considerations
`
`Patent Owner also argues that it would not have been obvious to one
`
`of ordinary skill in the art to have combined the teachings of Thia and
`
`Tanenbaum because there was a “long-felt but unsolved need” “to enhance
`
`the efficiency of network protocol processing and network traffic
`
`management” and that “[t]he nexus between the long-felt need and the
`
`claimed invention” is to “solve[]” “bottlenecks.” PO Resp. 54, 56. We are
`
`not persuaded by Patent Owner’s argument for at least the reasons set forth
`
`by Petitioner. Pet. Reply 20. We agree with Petitioner that Patent Owner
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`Patent 8,131,880 B2
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`has not persuasively established any connection between resolution of those
`
`bottlenecks and the patented invention. To be accorded substantial weight,
`
`there must be a nexus between the claimed invention and the evidence of
`
`secondary considerations. In re GPAC Inc, 57 F.3d 1573, 1580 (Fed. Cir.
`
`1995). Nexus is a legally and factually sufficient connection between the
`
`objective evidence and the claimed invention, such that the objective
`
`evidence should be considered in determining nonobviousness. Demaco
`
`Corp. v. F. von LangsdorflLicensing Ltd, 851 F.2d 1387, 1392 (Fed. Cir.
`
`1988). The burden of showing that there is a nexus lies with the Patent
`
`Owner. See Paulsen, 30 F.3d at 1482. In the absence of an established
`
`nexus with the claimed invention, secondary consideration factors are not
`
`entitled to much, if any, weight and generally have no bearing on the legal
`
`issue of obviousness. See In re Vamco Mach. & Tool, Inc, 752 F.2d 1564,
`1577 (Fed. Cir. 1985). Moreover, to the extent that Patent Owner argues
`
`that there was a “long-felt need” to solve “bottlenecks,” Patent Owner does
`
`not assert or demonstrate persuasively that any of the disputed claims recites
`
`“solving bottlenecks.” To the extent that Patent Owner argues that
`
`indicating when a packet is a candidate to avoid processing by the host
`
`computer system, as recited in claim 1, for'example, constitutes the required
`
`“nexus” to the alleged “long-felt need,” we note that Thia previously
`
`satisfied this need. The “long-felt need” must not have been satisfied by
`
`another before the patentee. Newell Co. v. Kenney Mfg. C0., 864 F.2d 757,
`
`768 (Fed. Cir. 1988).
`
`Patent Owner argues that it would not have been obvious to one of
`
`ordinary skill in the art to have combined the teachings of the cited
`
`references because “the challenged claims .
`
`.
`
`. enjoyed great commercial
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`success” by “the offloading .
`
`.
`
`. technology described in the challenged
`
`claims.” PO Resp. 56. We are not persuaded by Patent Owner’s argument
`
`for at least the reasons set forth by Petitioner. Pet. Reply 20—21. Patent
`
`Owner does not provide sufficient information or evidence to establish that
`
`the claimed invention, in fact, experienced “commercial success.” In fact, as
`
`Petitioner argues, evidence of record indicates that the claimed invention
`
`“never went anywhere” and was ultimately “deprecated.” Pet. Reply 21
`
`(citing Exs. 1224, 1227, 1230). In any event, even assuming that the
`
`claimed invention experienced “commercial success,” as Patent Owner
`
`alleges, the feature Patent Owner alleges to have resulted in the presumed
`
`“commercial success” was previously disclosed by Thia. See discussion
`
`above. Under these circumstances, any alleged commercial success stems
`
`from what was known in the prior art so that there can be no nexus. Tokai
`
`Corp. v. Easton Enters, Inc, 632 F.3d 1358, 1369 (Fed. Cir. 2011).
`
`Patent Owner argues that it would not have been obvious to one of
`
`ordinary skill in the art to have combined the teachings of the cited
`
`references because “Alacritech’s patent portfolio covering network
`
`acceleration techniques was the subject of several successful commercial
`
`licenses.” PO Resp. 56—57. We are not persuaded by Patent Owner’s
`
`arguments for at least the reasons set forth by Petitioner. Pet. Reply 21—22.
`
`For example, as Petitioner explains, Patent Owner does not demonstrate
`
`sufficiently that the alleged licenses were the result of the claimed invention
`
`and, therefore, fails to establish a nexus between the claimed invention and
`
`the alleged licenses. See e.g., Pet. Reply 21. Rather, as Petitioner points
`
`out, the licenses were the result of reasons not related to the claimed
`
`invention (e.g., as a result of an infringement lawsuit). Pet. Reply 22 (citing
`
`l6
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`Patent 8,131,880 B2
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`Ex. 2038). In any event, even assuming that there were “successful
`
`commercial licenses,” as Patent Owner contends, and the alleged “successful
`
`commercial licenses” were the result of some unspecified feature recited in
`
`claim 1, for example, as previously discussed, Thia discloses these features.
`
`There can be no nexus if the feature relied upon was previously known in
`
`the prior art. Tokaz' Corp, 632 F.3d at 1369.
`
`Patent Owner argues that it would not have been obvious to one of
`
`ordinary skill in the art to have combined the teachings of the cited
`
`references because the claimed invention was alleged to be the subject of
`
`industry “praise.” PO Resp. 57—58. We are not persuaded by Patent
`
`Owner’s argument for at least the reasons set forth by Petitioner. Pet. Reply
`
`22. For example, Patent Owner argues that various sources stated that
`
`Patent Owner’s network interface card “is able to sustain network
`
`bandwidth,” “achiev[es] lower processor utilization,” and “is an
`
`evolutionary advancement of [Patent Owner’s] .
`
`.
`
`. protocol acceleration”
`
`(PO Resp. 58 (citing Ex. 2039 11 4; Ex. 2026 1] 183; Ex. 2026 ‘fl 184)), but
`
`Patent Owner does not demonstrate sufficiently that any of these alleged
`
`statements, assuming that any of these statements would have been
`
`considered to be “praise” at all, pertain to the claimed invention and in what
`
`way. Hence, Patent Owner fails to establish sufficient nexus between the
`
`alleged “praise” and the claimed invention.
`Patent Owner argues that it would not have been obvious to one of
`
`ordinary skill in the art to have combined the teachings of the cited
`
`references because “prior attempts at ‘TCP offload [have] repeatedly
`
`failed.’” PO Resp. 58 (citing Ex. 2041, 001—013). We are not persuaded by
`
`Patent Owner’s argument for at least the reasons set forth by Petitioner. Pet.
`
`17
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`Reply 23. Even if TCP offload is a form of network processing offload, the
`
`Patent Owner provides no evidence linking the failure of others to any
`
`limitations of the challenged claims. Also, as Petitioner points out, Thia
`
`itself discloses a “generalization of the ‘Header Prediction’ algorithm for
`
`TCP/1P” and that “its teachings are compatible with ‘any standard
`
`protocol.”’ Pet. Reply 9, 11. Patent Owner states that “TCP offload”
`
`supposedly “repeatedly failed” but does not explain sufficiently how a
`
`system (of Thia) that is based upon an “algorithm for TCP/1P” and
`
`applicable to “any standard protocol” (which one of skill in the art would
`
`have understood to include TCP because, at least, the Thia system is a
`
`generalization of such a system) would have failed. We note that Thia does
`
`not disclose that its generalized “TCP/1P” offload system fails.
`
`Patent Owner argues that it would not have been obvious to one of
`
`ordinary skill in the art to have combined the teachings of the cited
`
`references because “experts and industry were skeptical of offloading
`
`processing of complex protocols.” PO Resp. 59. We are not persuaded by
`
`Patent Owner’s argument for at least the reasons set forth by Petitioner. Pet.
`
`Reply 23. For example, as previously discussed, Thia, for example,
`
`discloses offloading processing of complex protocols. There can be no
`
`nexus if the feature relied upon was previously known in the prior art. Tokaz'
`Corp, 632 F.3d at 1369. Nor would one of ordinary skill in. the art have
`
`been “skeptical” of procedures (e. g., offloading) already disclosed in the
`
`prior art (e.g., Thia).
`
`Real Parties in Interest
`
`Intel Corporation identifies itself as a real party in interest in these
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`18
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`proceedings and represents that “[n]o other parties exercised or could have
`
`exercised control over this Petition; no other parties funded or directed this
`
`Petition.” Pet. 2. Patent Owner argues that “Dell is .
`
`.
`
`. Intel’s .
`
`. .customer
`
`and indemnitee,” that “Dell, Cavium, and Intel have closely intertwined
`
`financial interests and business relationships .
`
`.
`
`. shared experts .
`
`.
`
`. and
`
`common litigation strategy with respect to their defense” and that, therefore,
`
`“the Petition fails to disclose all real parties-in-interest.” PO Resp. 61—63.
`
`We note that Dell and Cavium are parties in the present proceeding.
`
`We are therefore not persuaded by Patent Owner’s argument.
`
`PETITIONER’S MOTION TO EXCLUDE
`
`Patent Owner filed a Declaration of Kevin Almeroth, Ph.D. (Ex.
`2026). Petitioner moves to exclude portions of Exhibit 2026 because,
`
`according to Petitioner, portions of Exhibit 2026 “are identical to the
`
`arguments in the” Patent OWner’s Corrected Response to the Petition and,
`
`“[when] counsel for Petitioner asked [Patent Owner’s expert, Dr. Almeroth]
`
`why portions of the Patent Owner’s oppositions were identical to the
`
`expert’s purported declaration .
`
`.
`
`. Counsel for Patent Owner instructed Dr.
`
`Almeroth not'to answer on the basis of privilege.” Paper 55, 2—4.
`
`However, we agree with Patent Owner tha
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