Case 1:18-cv-01127-LPS-CJB Document 253 Filed 05/20/21 Page 1 of 8 PageID #: 6838
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`SEQUOIA TECHNOLOGY, LLC,
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`Plaintiff,
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`v.
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`:
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`CA. No. 18-1127—LPS~CJB
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`(CONSOLIDATED)
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`DELL INC, DELL TECHNOLOGIES
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`INC. and its subsidiary EMC
`CORPORATION (AKA DELL EMC),
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`Defendants.
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`RED HAT, INC,
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`Plaintiff,
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`v.
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`:
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`C.A. No. 18-2027-LPS-CJB
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`SEQUOIA TECHNOLOGY, LLC and
`ELECTRONICS AND
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`TELECOMMUNICATIONS RESEARCH
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`INSTITUTE,
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`Defendants.
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`SEQUOIA TECHNOLOGY, LLC,
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`Counterclaim Plaintiff,
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`V.
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`RED HAT, INC. and INTERNATIONAL
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`BUSINESS MACHINES CORPORATION,
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`Counterclaim Defendants.
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`

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`Case 1:18-cv-01127-LPS-CJB Document 253 Filed 05/20/21 Page 2 of 8 PageID #: 6839
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`MEMORANDUM ORDER
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`WHEREAS, Magistrate Judge Burke issued a 33-page Report and Recommendation
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`(“Report”) (D.I. 231)1 on October 1, 2020, recommending that the Court adopt certain claim
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`constructions for disputed terms in US. Patent No. 6,718,436 (the “’436 patent” ;
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`WHEREAS, on October 29, 2020, Sequoia Technology, LLC and Electronics and
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`Telecommunications Research Institute (“ETRF and, together with Sequoia Technology, LLC,
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`“Sequoia”) objected to the Report (“Objections”) (13.1. 247), asserting that it incorrectly
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`construed the terms “extent allocation table .
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`.
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`. used or not used,” “disk partition,” and
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`“computernreadable recording medium storing .
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`. .”;
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`WHEREAS, on December I, 2020, Red Hat, Inc. (“Red Hat”) responded to the
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`Objections (“Response”) (DI. 251);
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`WHEREAS, the Court has considered the parties” objections and responses de novo, see
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`St. Clair Intell. Prop. Consultants, Inc. v. Matsushita Elec. Indus. Co., Ltd, 691 F. Supp. 2d 538,
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`541-42 (D. Del. 2010); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3);
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`NOW, THEREFORE, IT IS HEREBY ORDERED that the Objections (D.I. 247) to
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`Judge Burke’s constructions of “extent allocation table .
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`.
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`. used or not used,” “disk partition,”
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`and “computer-readable recording medium storing .
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`. .” are OVERRULED and the
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`constructions set forth in the Report are ADOPTED.
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`1.
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`Sequoia objects to the recommended construction of “extent allocation
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`table for indicating whether each extent in the disk partition is used or not used” as meaning
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`“extent allocation table for indicating whether each extent in a disk partition is or is not storing
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`1 All references to the docket index (D.I.) are to the lead case, CA. No. 18-1127.
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`Case 1:18-cv-01127-LPS-CJB Document 253 Filed 05/20/21 Page 3 of 8 PageID #: 6840
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`information.” (Id. at 4) The parties dispute what it means for an extent to be “used or not used.”
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`(See D.l. 231 at 19) The Report determined that “used or not used” refers to whether the extent
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`“is or is not storing information,” and the Court agrees with the three reasons it gives for this
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`conclusion. (Id at 19-21) First, the patent’s specification describes an “extent” as “a minimum
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`unit of space allocation to store information,” directly linking an extent’s purpose to storing
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`information. (See id. at 19-20) (citing ’436 patent at 7:2-3) (emphasis added) Second, the patent
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`cites a publication in which its inventors indicate that “an extent is ‘used’ when it is storing
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`information.” (Id. at 20) Third, the extent allocation map referenced in a preferred embodiment
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`allocates all of a disk partition’s extents to one logical volume.
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`(Id. at 20—21) This map would
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`be superfluous under Sequoia’s view that an extent allocation table shows merely whether an
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`extent has been allocated to a logical volume, and not whether it is actually storing information.
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`(See id. )2 While not dispositive, this is “another point in favor of Red Hat’s construction.” (Id.
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`at 21)
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`2.
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`Sequoia objects to the recommended construction of “disk partition” as meaning
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`“section of a disk that is a minimum unit of a logical volume." (DJ. 247 at 4-9) The Report
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`describes how the ’436 patent identifies a hierarchical process for storing information at three
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`levels: at the lowest level is the extent, which is a “minimum unit of space allocation to store
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`information,” at the next level is the disk partition; and at the highest level is the logical volume.
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`(D.I. 231 at 7-8) (citing ’436 patent 6:58-59, 65, 7:1-3) Red Hat does not dispute that disk
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`2 Sequoia insists that the Report incorrectly concludes all extents in a disk partition must be used
`by a logical volume. (See D.I. 247 at 4) Sequoia, however, misconstrues the Report’s
`conclusion, as Red Hat explains. (See D.I. 251 at 3) The Report simply observed that in the
`preferred embodiment all the extents in the disk partition are allocated to one logical volume,
`and Sequoia’s construction would render the extent allocation table in that embodiment
`nonsensical. (See 13.1. 231 at 20)
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`Case 1:18-cv-01127-LPS-CJB Document 253 Filed 05/20/21 Page 4 of 8 PageID #: 6841
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`partitions (and therefore the logical volume) are made up of extents, which are smaller than disk
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`partitions.
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`(See D.I. 251 at 5 n.4) For its part, Sequoia agrees that a disk partition can be a
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`minimum unit of a logical volume; it only disagrees with the Report’s requirement that it must
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`be. (See 13.1. 247 at 5-6) The key question is whether a logical volume can be constructed or
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`resized in units less than whole or entire disk partitions. The Report answers this question in the
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`negative. Sequoia opposes this conclusion on three grounds, each of which is unavailing.
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`3.
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`First, Sequoia contends the Report misconstrues the intrinsic evidence.
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`(See id. at
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`5-7) The Report notes that the claims suggest a whole or entire disk partition is used to construct
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`a iogical volume, describing “disk partitions forming” and “constructing” the logical volume and
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`explaining that the first step in the method is “creating the logical volume by gathering disk
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`partitions.” (D.I. 231 at 9) (citing ’436 patent at 12:20, 24—25, 28-29, 13:19-20, 15:7-8) The
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`Report also points to language in the specification explaining that “[t]he present invention
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`constructs a logical volume by using a disk partition as a volume construction unit,” adding that
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`“[t]he disk partition is a minimum unit of the logical volume” and “[t]he logical volume is a
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`union of disk partitions.” (Id. at 9-10) (citing ”436 patent at 11:66-67, 6:60-61, 64—65) While
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`Sequoia is correct that several of these statements are directed to a preferred embodiment (see
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`Di. 247 at 6-7), the Report acknowledged this fact (see D.I. 231 at 10 n3) and went on to
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`explain that “the particular language used by the patentee (‘ [t]he disk partition is’)” sounds like a
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`definition and, in any event, supports Red Hat and does not support Sequoia (id).
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`Sequoia relatedly argues that the Report “disregards” a portion of the specification
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`describing “an Extent Size 95” as “a minimum space allocation unit of a corresponding volume.”
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`(DJ. 247 at 5) (citing ’436 patent at 8:35-36) There is no basis to conclude that Judge Burke
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`disregarded this or any other portion of the record. As importantly, this statement does not
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`Case 1:18-cv-Oll27-LPS-CJB Document 253 Filed 05/20/21 Page 5 of 8 PageID #: 6842
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`contradict the Report’s conclusion: an extent may be the minimum unit for allocating space on a
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`disk, but it does not follow that it is also the minimum unit for creating or resizing logical
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`volumes (which is the disputed issue). (See D.I. 251 at 5)3 Rather, the patent claims and
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`specification indicate to a person of ordinary skill in the art (“POSA”) that the disk partition is
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`the minimum unit for that function.
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`Nor is the Court persuaded by Sequoia’s arguments with respect to Figures 5 and 8.
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`Figure 5 shows a field for the “total number of extents in volume” alongside a field for the “total
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`number of disk partitions.” (D.I. 247 at 2-3, 6) In Sequoia’s View, if all the extents in the disk
`partition must be allocated to the logical volume, then the first field would be easily calculable
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`and, thus, unnecessary. (See id. at 3) The Court agrees, however, with Red Hat that the first
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`field may provide help where, for example, a logical volume comprises many disk partitions,
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`which in turn each comprise a different number of extents. (See D.l. 251 at 5) Figure 8 contains
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`a mapping map 75, which stores information on the extent numbers, not just the partitions. (See
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`D1. 247 at 6) Sequoia argues that the extent number would be unnecessary if the disk partition
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`were the smallest unit. (Id) The Court agrees with Red Hat that Sequoia is conflating the roles
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`of the extent and the disk partition. (See D.I. 251 at 5-6)
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`4.
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`Second, Sequoia asserts that the Report’s construction would render logical
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`volume management (“LVM”) essentially useless, as the “purpose of LVM is to allow for logical
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`volumes to be dynamically resized, without any restriction limiting it to whole partitions.” (DI.
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`247 at 7) Sequoia argues this notion is supported by statements Red Hat’s expert made after the
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`Marianan hearing. (Id) The statements at issue, however, relate to the accused Red Hat
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`3 The Report explicitly acknowledges that an extent is a “minimum unit of space allocation to
`store information.” (D.I. 231 at 7-8) (citing ’436 patent at 7:2~3)
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`Case 1:18-cv-Oll27-LPS—CJB Document 253 Filed 05/20/21 Page 6 of 8 PageID #: 6843
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`product, not the patent, and do not bear on claim construction. (See D.I. 251 at 6; see also id.
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`(“[Tlhe patent itself — which is the relevant point of reference for claim construction m
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`exclusively depicts logical volumes that are made up of entire partitions, belying Sequoia’s
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`suggestion that such a system is ‘useless.”’)) By contrast, the statements made by ETRI in
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`successfully opposing institution of an IPR on the ’436 patent — that “extents are added or
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`removed from a logical volume at the level of the disk partitions” — appear to distinguish the
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`patent from prior art describing logical volumes that are formed from subsets of disk partitions.
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`(See 13.1. 231 at 11) (citing D1. 178 Ex. K at 5) These ETRI statements are fully consistent with
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`the Report’s construction.
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`5.
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`Third, Sequoia contends that Red Hat is judicially estopped from arguing for a
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`narrower construction than it proposed during the lPR, when it argued that a “portion of a dis ”
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`can form a logical volume. (See D.I. 247 at 8—9) Judicial estoppel is only appropriate when:
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`(1) the party to be estopped is asserting a position that is irreconcilably inconsistent with one she
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`previously asserted; (2) the party changed her position in bad faith, i.e., with an intent to play fast
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`and loose with the court, and (3) the use ofjudicial estoppel is tailored to address the affront to
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`the court’s authority or integrity and no lesser sanction would adequately remedy the situation.
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`See Montrose Med. Grp.‘ Participating Sav. Plan v. Bulger, 243 F.3d 773, 777—78 (3d Cir. 2001).
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`“[A] party has not displayed bad faith for judicial estoppel purposes if the initial claim was never
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`accepted or adopted by a court or agency.” Id. at 778.
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`Red Hat argues that judicial estoppel does not apply because the PTAB denied institution
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`of its IPR petition, so Red Hat did not prevail in the prior adjudication. (See D.l. 251 at 7; see
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`also New Hampshire v. Maine, 532 US. 742, 749 (2001) (“{Judicial estoppel] generally prevents
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`a party from prevailing in one phase of a case on an argument and then relying on a contradictory
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`Case 1:18-cv-01127-LPS-CJB Document 253 Filed 05/20/21 Page 7 of 8 PageID #: 6844
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`argument to prevail in another phase”) (internal citation and quotation marks omitted)) Sequoia
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`disagrees. (See D.I. 247 at 9) The Court need not resolve this dispute because, even if the Court
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`were to agree with Sequoia, and were also to find that Red Hat’s position is inconsistent with
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`what it advocated in the IPR, the record is devoid of any indication of bad faith on Red Hat’s part
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`or any affront to the integrity of the courts from permitting Red Hat to press its current position.
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`6.
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`Finally, Sequoia objects to the recommended construction of “computer-readable
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`recording medium” or “CRM” in the preamble to Claim 8 as meaning “transitory or non-
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`transitory computer—readable recording medium.” The parties dispute whether CRM
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`encompasses transitory media. Sequoia argues that the patent does not even mention transitory
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`media ~ yet, as the Report correctly states, it also does not limit a CRM to non~transitory media;
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`instead, the specification describes what a CRM “includes.” (See D.I. 231 at 27-28) (citing ’436
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`patent at 1 1:3 63 9) (describing “computer readable medium including compact disc read only
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`memory (CDROM), random access memory (RAM), floppy disk, hard disk, and magneto-optical
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`disk”) The Court agrees with the Report that a POSA would read this list as non~exhaustive, as
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`the portion of the specification in which it appears does not purport to limit the term’s scope.
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`Without clear language excluding transitory media, the Report turns to extrinsic
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`evidence, relying on 34 different prior art patents and patent applications from 2000 and 2001,4
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`discussed in a declaration from Red Hat’s expert, which collectively support the conclusion that
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`a claim directed to a “computer-readable recording medium” at that time would have been
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`understood to encompass transitory media. (See D.I. 231 at 28) (citing D.I. 154 Ex. U) This is
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`persuasive extrinsic evidence, particularly given the lack of any substantive rebuttal from
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`4 The ’436 patent was filed in December 2001.
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`Case 1:18-cv-01127-LPS—CJB Document 253 Filed 05/20/21 Page 8 of 8 PageID #: 6845
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`Sequoia’s expert (see id. at 29) and the Report’s observation that other courts examining this
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`issue have reached a similar conclusion (see id. at 28 n.15).
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`7.
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`In light of the foregoing conclusions, the Court need not address Red Hat’s
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`argument that Sequoia adds substantial new evidence and arguments without good cause.5 (See
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`D1. 251 at 9—10) The Court has considered all of the arguments made and evidence presented by
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`Sequoia.
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`May 20, 2021
`Wilmington, Delaware
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`
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`UNITED STATES DISTRICT JUDGE
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`5 Red Hat asserts that Sequoia introduced at least the following new evidence and arguments:
`two new expert declarations; Red Hat documents regarding the accused product; and a new
`judicial estoppel argument. (See D.l. 251 at 9-10)
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