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EMC Corporation v. CLOUDING CORP

Docket IPR2015-01922, Patent Trial and Appeal Board (Sept. 16, 2015)
Jameson Lee, Michael Kim, Rama Elluru, presiding
Case TypeInter Partes Review
Patent
5944839
Patent Owner CLOUDING CORP
Petitioner EMC Corporation
Assignee DBD CREDIT FUNDING LLC, AS COLLATERAL AGENT
...
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EMC Corporation v. Clouding Corp.

Docket IPR2014-01309, Patent Trial and Appeal Board (Aug. 16, 2014)
Jameson Lee, Miriam Quinn, Rama Elluru, presiding
Case TypeInter Partes Review
Patent
5944839
Petitioner EMC Corporation
Patent Owner Clouding Corp.
Assignee DBD CREDIT FUNDING LLC, AS COLLATERAL AGENT
...
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36 Final Decision: Final Written Decision on Remand

Document IPR2014-01309, No. 36 Final Decision - Final Written Decision on Remand (P.T.A.B. Oct. 17, 2017)
Of relevance to this decision, the Federal Circuit determined that Patent Owner’s only argument to the Board in support of nonobviousness was that Petitioner’s proposed combination of Barnett and Allen ’664 would not yield a solution that involves “saving a state of a computer system,” as the second half of claim 6, step 5 requires.
In addition, as Petitioner argues, “Barnett explicitly contemplates an embodiment in which the diagnostic system would initially fail to determine a likely solution to a fault, but in which its configuration manager nonetheless remains capable of introducing ‘new component types, which require new models and meta-models.’” Pet.
Dr. Sacerdoti, Petitioner’s expert, states that a skilled artisan “would understand this citation to mean that, absent the encoding of models and meta-models describing the new component types, the diagnostic system would be unable to derive a precise diagnosis.” Ex. 1024 ¶ 18.
Patent Owner concludes that “any combination of Barnett and Allen ’664 would, at best, save case criteria and user-supplied information as a new case and would not save computer state, as required by claim 6.” Id. We have reviewed Patent Owner’s argument and evidence and determine that Petitioner has shown by a preponderance of the evidence that the combination of Allen ’664 teaches and Barnett teaches the limitation at issue.
Petitioner’s argument is supported by Dr. Sacerdoti’s testimony, which was formed from his “own extensive experience in managing and teaching the development of rule-based expert systems, and from what [he was] aware was the state of the art at the time of the invention of the ’839 patent.” Ex. 1024 ¶ 32.
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9 Notice: Notice of Refund

Document IPR2015-01922, No. 9 Notice - Notice of Refund (P.T.A.B. Jul. 8, 2016)
Petitioner’s request for a refund of certain post-institution fees paid on 09/16/2015 in the above proceeding is hereby granted.
The amount of $14,000 has been refunded to the Petitioner’s deposit account.
Case IPR2015-01922 Patent 5,944,839 The parties are reminded that unless otherwise permitted by 37 C.F.R. § 42.6(b)(2), all filings in this proceeding must be made electronically in the Patent Review Processing System (PRPS), accessible from the Board Web site at http://www.uspto.gov/PTAB.
For the PATENT OWNER:
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7 Decision Denying Institution: Decision Denial of Inter Partes Review

Document IPR2015-01922, No. 7 Decision Denying Institution - Decision Denial of Inter Partes Review (P.T.A.B. Mar. 16, 2016)
37 C.F.R. § 42.100(b), see also Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012); In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1277–78 (Fed. Cir. 2015) (“We conclude that Congress implicitly approved the broadest reasonable interpretation standard in enacting the AIA.”), cert.
Independent claim 15 similarly recites “when a likely solution to the computer problem does not exist, saving the sensed information as a new case of the plurality of cases” (emphasis added).
Patent 5,944,839 “[f]or unknown faults, the reactive SFM process assists the engineer during the trouble shooting by providing access to relevant information and tools.” (Emphasis added).
Dr. Sacerdoti asserts that “[Douik’s] standard operation entails automatically storing network and traffic data from the telecommunication switches (that is, the state of the distributed computer system).” Ex. 1009 § 40 (citing Ex. 1003, 29:61–64) (emphasis added).
Dr. Sacerdoti further asserts that “[w]hen diagnosing a fault in the computer system in ‘reactive mode,’ Douik saves relevant information in order to provide it to an engineer responsible for effecting the repair.” Ex.
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34 Final Decision: Final Written Decision

Document IPR2014-01309, No. 34 Final Decision - Final Written Decision (P.T.A.B. Jan. 29, 2016)
Petitioner has not demonstrated by a preponderance of the evidence that the combination of Barnett and Allen ’664 teaches or suggests the condition “when a likely solution [to a problem in the computer system] cannot be determined,” as recited in claim 6.
Patent 5,944,839 A fault” and that this is “a situation that is not truly contemplated by Barnett” (PO Resp. 6–7), Petitioner does not contend that it instead relies on Allen ’664 as teaching or suggesting the condition “when a likely solution to a problem [in the computer system] cannot be determined.” See Pet.
Based on this disclosure, Petitioner asserts that “Barnett explicitly contemplates an embodiment in which the diagnostic system would initially fail to determine a likely solution to a fault, but in which its configuration manager nonetheless remains capable of introducing ‘new component types, which require new models and meta-models.’” Pet.
In particular, Dr. Sacerdoti does not provide sufficient factual basis in support of his opinion that Barnett contemplates the situation in which there is an absence of models and meta-models describing the new component types.
Patent 5,944,839 A Accordingly, Petitioner has not proven by a preponderance of the evidence that the combination of Allen ’664 and Barnett teaches or suggests “when a likely solution cannot be determined,” as recited in claim 6.
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33 Notice: Record of Oral Hearing

Document IPR2014-01309, No. 33 Notice - Record of Oral Hearing (P.T.A.B. Nov. 30, 2015)
There's no countervailing declaration or other testimony from a different expert about what a person of ordinary skill in the art would have gathered from these references and therefore no reason for the Board to alter its preliminary conclusion that Claims 6, 8, and 14 are obvious is light of Barnett and Allen.
And I should have added there's also, of course, citations of the supporting declaration 45689 Dr. Sacerdoti which is Exhibit 1,007 where he reviews each portion of the references that I just mentioned and provides his own opinion on how a person of ordinary skill in the art would have understood that and how the combination would have -- would have satisfied the claim limitations.
So the position is that a person of ordinary skill in the art looking at the combination of Barnett and Allen would understand that if you cannot identify the likely solution to the problem based on the information you're able to gain through the sensors, the software agents described in Barnett and Allen, that it would be obvious to save the Case IPR2014-01309 Patent: 5,944,839 state of the computer system in order to have a human expert spend time or the computer system itself spend more time to identify a likely solution and prove -- JUDGE QUINN: But that's not -- that's not because either reference teaches it.
One of ordinary skill in the art would understand the citation to mean that ops and then coding of models and metamodels describing a new component time, but the Case IPR2014-01309 Patent: 5,944,839 diagnostic system would be unable to derive a precise diagnosis [sic].
The -- the Allen reference teaches us that these fault management systems operate in a different way, and constructing the rule base is sometimes counterintuitive and may be beyond the ability of many application programmers.
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4 Notice of Filing Date Accorded to Petition: Notice of Filing Date Accorded to Petition

Document IPR2015-01922, No. 4 Notice of Filing Date Accorded to Petition - Notice of Filing Date Accorded to Petition (P.T.A.B. Sep. 23, 2015)
The petition for inter partes review in the above proceeding has been accorded the filing date of September 16, 2015.
For more information, please consult the Office Patent Trial Practice Guide, 77 Fed. Reg. 48756 (Aug. 14, 2012), which is available on the Board Web site at http://www.uspto.gov/PTAB.
Patent Owner is advised of the requirement to submit mandatory notice information under 37 C.F.R. § 42.8(a)(2) within 21 days of service of the petition.
The parties are advised that under 37 C.F.R. § 42.10(c), recognition of counsel pro hac vice requires a showing of good cause.
Such motions shall be filed in accordance with the “Order -- Authorizing Motion for Pro Hac Vice Admission” in Case IPR2013-00639, Paper 7, a copy of which is available on the Board Web site under “Representative Orders, Decisions, and Notices.” The parties are reminded that unless otherwise permitted by 37 C.F.R. § 42.6(b)(2), all filings in this proceeding must be made electronically in the Patent Review Processing System (PRPS), accessible from the Board Web site at http://www.uspto.gov/PTAB.
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