EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
`UNITED STATES PATENT NO. 7,093,086 (van Rietschote)
`
`INFRINGEMENT CONTENTIONS
`
`Accused Veeam Products: Veeam Backup & Replication Version 5.0
`Veeam Backup & Replication Version 6.0
`Veeam Backup & Replication Version 6.1
`Veeam Backup Free Edition Version 6.1 (VeeamZIP).
`
`
`
`
`Symantec reserves the right to supplement this list of Accused Veeam Products.
`
`Veeam directly infringes at least claims 11 and 22 of the ‘086 patent, either literally or through the doctrine of equivalents, pursuant
`
`to 35 U.S.C. § 271(a).
`
`In addition to Veeam’s direct infringement of the claims of the ‘086 patent through its development, testing, use, distribution and sale
`
`of its products and services, Veeam also indirectly infringes at least claims 11 and 22 of the ‘086 patent pursuant to 35 U.S.C. § 271(b) and
`(c). End-users and others in the distribution channel of the Accused Veeam Products directly infringe this claim by using, selling, offering
`for sale, and/or importing these devices into the United States. Veeam contributes to and induces the infringement of asserted claims 11 and
`22 through its promotion and provision of marketing, sale and/or technical support of the Accused Veeam Products and associated services
`in the United States, and through the design, marketing, manufacture, sale, and/or technical support of the Accused Products. Veeam
`supplies Accused Veeam Products and actively encourages the use, sale, offer for sale, and importation of the same in the United States
`through the promotion and provision of marketing literature and user guides, which induces and results in direct infringement. Veeam has
`known or should have known that these actions would cause direct infringement of the ‘086 patent and did so with specific intent to
`encourage direct infringement. At least as of February 13, 2012, Symantec served Veeam with its complaint in this litigation, which
`attached the ‘086 patent as an exhibit. Despite knowing of the ‘086 patent, Veeam continues to make, use, offer to sell, and sell its products
`and has continued to circulate marketing literature and user guides encouraging users of the Accused Veeam Products to infringe.
`Additionally, the identified features of the Accused Veeam Products are material parts of the inventions of the asserted claims and have no
`substantial non-infringing uses.
`
`1
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
`Symantec's investigation is ongoing and discovery and claim construction are not yet complete. Discovery has just begun in this
`
`litigation and Veeam has not produced any documents regarding the Accused Veeam Products. Symantec reserves the right to supplement
`or amend these contentions with contentions arising under the doctrine of equivalents in response to any proposed or ordered claim
`construction, subsequent discovery response or production, or subsequent disclosure made pursuant to Federal Rule of Civil Procedure 26.
`
`This chart provides Symantec’s infringement analysis for the Veeam Backup & Replication product for VMware hypervisors. The
`
`‘086 patent is charted against Veeam Backup & Replication 6.0, but the same analysis applies to the other Veeam Accused Products
`identified above.
`
`Below, Symantec identified elements of the accused products that correspond to language in the preamble. The claim construction
`
`proceedings set forth in the Northern District of California Patent Local Rules have not yet begun and, by including such language in these
`charts, Symantec does not concede that the language in the preamble constitutes a claim element that must be satisfied for infringement
`purposes.
`
`‘086 CLAIM ELEMENT VEEAM BACKUP & REPLICATION VERSION 6.0
`
`Claim 1
`1.1
`1. A computer readable
`medium storing a plurality
`of instructions comprising
`instructions which, when
`executed:
`
`Veeam Backup and Replication Version 6.0 is provided through a computer-readable storage medium
`storing a plurality of instructions. The software is available through download from the Veeam
`website.
`
`See http://www.veeam.com/vmware-esx-backup.html.
`
`
`2
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
`
`
`
`
`Veeam Backup and Replication Version 6.0 comprises instructions which, when executed, capture a
`state of a first virtual machine executing on a first computer system, the state of the first virtual
`machine corresponding to a point in time in the execution of the first virtual machine, wherein the first
`virtual machine comprises at least one virtual disk storing at least one file used by at least one
`application executing in the first virtual machine, and wherein the state of the first virtual machine
`comprises the at least one file.
`
`VBR6 captures the state of the virtual machine corresponding to a point in time of the execution of the
`virtual machine. This includes application data.
`
`
`1.2
`
`(i) capture a state of a first
`virtual machine executing
`on a first computer system,
`the state of the first virtual
`machine corresponding to a
`point in time in the
`execution of the first
`virtual machine, wherein
`the first virtual machine
`comprises at least one
`virtual disk storing at least
`one file used by at least
`
`1 The term “VBR6 User’s Guide” refers to the Veeam Backup & Replication Version 6.0 User Guide for VMware Environments, dated November 2011. Although these
`contentions cite to the User’s Guide for Veeam Backup and Replication Version 6.0, each of the other Veeam Accused Products include similar or identical functionality.
`See, e.g., VBR5 User’s Guide at 9, 64; VBR6.1 User’s Guide at 20-21; Veeam Backup Free 6.1 at 6 (“VeeamZIP is identical to full VM backup.”).
`
` See, e.g., VBR6 User’s Guide1 at 18 (“Unlike traditional backup tools designed to work with
`physical machines, Veeam Backup & Replication is built specifically for virtual environments.
`
`3
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
`one application executing
`in the first virtual machine,
`and wherein the state of the
`first virtual machine
`comprises the at least one
`file; and
`
`It operates at the virtualization layer and uses an image-based approach for virtual machines
`backup. To retrieve VM data, no agent software needs to be installed inside the guest OS –
`instead, Veeam Backup & Replication leverages ESX snapshot capabilities. When a new
`backup session starts, a snapshot is taken to create a cohesive point-in-time copy of a VM
`including its configuration, OS, applications, associated data, system state and so on. Veeam
`Backup & Replication accesses this point-in-time copy to retrieve VM data. Image-based
`backups can be used for different types of recovery – such as full VM recovery, Instant VM
`Recovery, file-level recovery and other.”).
`
` variety of applications may execute in the target virtual machine.
`
` A
`
`
`
` See, e.g., VBR6 User’s Guide at p. 30 (“To create a transactionally consistent backup of a VM
`running VSS-aware applications (such as Active Directory, Microsoft SQL, Microsoft
`Exchange, Sharepoint) without shutting them down, Veeam Backup & Replication uses
`application-aware image processing.”).
`
`
`VBR6 provides a backup tool for creating a backup image of a virtual disk.
`
`
` See, e.g., VBR6 User’s Guide at p. 88:
`
`
`
`4
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
`1.3
`
`(ii) copy at least a portion
`of the state to a destination
`separate from a storage
`device to which the first
`virtual machine is
`suspendable, wherein
`suspending the first virtual
`
`
`
`Veeam Backup and Replication Version 6.0 comprises instructions which, when executed, copy at
`least a portion of the state to a destination separate from a storage device to which the first virtual
`machine is suspendable, wherein suspending the first virtual machine is performed responsive to a
`suspend command.
`
`VBR6 can copy the backup image to a remote backup repository separate from the production storage.
`
`
`
`
`5
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
`machine is performed
`responsive to a suspend
`command.
`
` See, e.g., VBR6 User’s Guide at p. 20 (“The process of data retrieval in the Direct SAN Access
`mode includes the following steps:
`1. The backup proxy sends a request to the ESX(i) host to locate the necessary VM on the
`datastore (1).
`2. The host locates the VM and retrieves metadata about the layout of virtual disks on the SAN
`– physical addresses of data blocks – and sends the metadata to the backup proxy (2, 3, 4).
`3. The backup proxy uses this metadata to copy data blocks directly from the SAN and sends
`the data copied from the datastore to the target (5, 6).”).
`
`
`
`VBR6 can also replicate (copy) the backup image to a different host.
`
`
`
`
` See, e.g., VBR6 User’s Guide at p. 42 (“Onsite Replication. If the source and target hosts are
`located in the same site, you can deploy one backup proxy for data processing and a backup
`repository for storing replica metadata. This backup proxy must have access to the source host
`and to the target host at the same time. In this scenario, the source-side agent and the target-
`side agent will be started on the same backup proxy. Replication traffic will be transferred
`uncompressed between the two agents.”).
`
`
`
`6
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
`
`VBR6 provides the user with the option of where to copy the backed-up state of the virtual machine.
`
`
`
`
` See, e.g., VBR6 User’s Guide at p. 91 (“From the Backup repository list, select a repository
`where the created backup should be stored. Make sure you have enough free space on the
`storage device. When you select a repository, Veeam Backup & Replication checks how much
`free space is available on the backup repository.”).
` See, e.g., VBR6 User’s Guide at p. 91:
`
`
`
`7
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
`
`The virtual machine is suspendable, wherein the suspension is performed responsive to a suspend
`command.
`
`
` See, e.g., VBR6 User’s Guide at p. 30 (“Transaction Consistency. When you perform backup
`of a running VM, it is necessary to quiesce (or ‘freeze’) it to bring the file system and
`
`
`
`8
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
`application data to a consistent state suitable for backup. Backing up a VM without quiescence
`produces a crash-consistent backup. Restoring a crash-consistent backup is essentially
`equivalent to rebooting a server after a hard reset. In contrast to it, restoring transactionally
`consistent backups (produced with VM data quiesced) ensures safety of data for applications
`running on VMs.
`
`To create transactionally consistent backup images of VMware VMs, Veeam Backup &
`Replication provides two options – VMware Tools quiescence and application-aware image
`processing utilizing Windows VSS.”).
` See, e.g., VMware Knowledge Base, Understanding virtual machine snapshots in VMware
`ESXi and ESX, http://kb.vmware.com/kb/1015180 (“Quiescing indicates pausing or altering
`the state of running processes on a computer, particularly those that might modify information
`stored on disk during a backup, to guarantee a consistent and usable backup.”).
`
`
`VMware stuns the virtual disk during the transition to the delta file. This a brief suspension of the
`virtual machine.
`
`During migration using SmartSwitch, the system temporarily suspends the VM to move the state file.
`
`
` See, e.g., VBR6 User’s Guide at p. 50 (“Next, VM state is moved to a new location. Veeam
`Backup & Replication uses different approaches to move the VM state between hosts with
`compatible and non-compatible CPUs.
`• If you move a VM between two hosts with compatible CPUs, Veeam Backup & Replication
`uses SmartSwitch – it suspends a VM to move its state file and then resumes the VM on the
`new host. This ensures minimum downtime, and completely eliminates any data loss during
`migration.”).
`
`
`
`
`
`9
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
`Claim 11
`11.1
`11. The computer readable
`medium as recited in claim
`1 wherein (i) comprises
`creating a new log of
`uncommitted updates for
`each virtual disk in the first
`virtual machine and
`creating a memory area to
`capture writes to a memory
`of the first virtual machine,
`such that the first virtual
`machine can continue
`executing during (ii).
`
`Veeam Backup and Replication Version 6.0 comprises instructions which, when executed, creates a
`new log of uncommitted updates for each virtual disk in the first virtual machine and creates a
`memory area to capture writes to a memory of the first virtual machine, such that the first virtual
`machine can continue executing during (ii).
`
`VBR6 instructs VMware to perform a snapshot, which causes VMware to create delta files that
`capture uncommitted updates to the virtual disk and a memory area to capture writes to a memory of
`the first virtual machine.
`
`
` See, e.g., VBR6 User’s Guide at 18 (“Unlike traditional backup tools designed to work with
`physical machines, Veeam Backup & Replication is built specifically for virtual environments.
`It operates at the virtualization layer and uses an image-based approach for virtual machines
`backup. To retrieve VM data, no agent software needs to be installed inside the guest OS –
`instead, Veeam Backup & Replication leverages ESX snapshot capabilities. When a new
`backup session starts, a snapshot is taken to create a cohesive point-in-time copy of a VM
`including its configuration, OS, applications, associated data, system state and so on. Veeam
`Backup & Replication accesses this point-in-time copy to retrieve VM data. Image-based
`backups can be used for different types of recovery – such as full VM recovery, Instant VM
`Recovery, file-level recovery and other.”).
`
`
`
` See, e.g., VMware Knowledge Base, Understanding virtual machine snapshots in VMware
`ESXi and ESX, http://kb.vmware.com/kb/1015180 (“A collection of .vmdk and -delta.vmdk
`files for each virtual disk is connected to the virtual machine at the time of the snapshot. These
`files can be referred to as child disks, redo logs, or delta links. These child disks can later be
`considered parent disks for future child disks. From the original parent disk, each child
`constitutes a redo log pointing back from the present state of the virtual disk, one step at a
`time, to the original.”).
` See, e.g., VMware Knowledge Base, Understanding virtual machine snapshots in VMware
`
`10
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
`ESXi and ESX, http://kb.vmware.com/kb/1015180 (“The child disk, which is created with a
`snapshot, is a sparse disk. Sparse disks employ the copy-on-write (COW) mechanism, in
`which the virtual disk contains no data in places, until copied there by a write. This
`optimization saves storage space. The grain is the unit of measure in which the sparse disk
`uses the copy-on-write mechanism. Each grain is a block of sectors containing virtual disk
`data. The default size is 128 sectors or 64KB.”)
`
`
`During backups of running machines using VBR6, the system creates a delta file to capture the
`uncommitted updates to the virtual disk. See ‘086 VMware Exhibit 1.
`
`
`
`
`‘086 VMware Exhibit 1.
`
`Using the backup and replication features of VBR6, the first virtual machine can continue executing
`while the data is being copied.
`
`
` See, e.g., VBR6 User’s Guide at p. 8 (“Veeam Backup & Replication supports Windows
`Volume Shadow Copy Service (VSS) enabling backup and replication on live and open
`systems running Windows applications or working with databases (for example, Domain
`Controller, Exchange Server, SQL Server) without shutting them down. It also provides
`advanced options to control truncating of transaction logs so that you can ensure correct
`backup of applications that use transaction logs, and meet requirements of any backup
`scenario. You can select to truncate transaction logs after every backup job, every successful
`
`11
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
`backup or not to truncate logs at all.”).
`
`
`VMware creates a memory area to capture writes to a memory of the first virtual machine in response
`to a snapshot call from VBR6, such that the first virtual machine can continue executing during (ii).
`The allocation of memory is a requirement for a running machine.
`
`
`Veeam Backup and Replication Version 6.0 is used as part of an apparatus.
`
`See description below.
`
`Veeam Backup and Replication Version 6.0 is used as part of an apparatus comprising a first computer
`system configured to execute at least a first virtual machine.
`
`VBR6 is operates in conjunction with a computer system configured to execute at least a first virtual
`machine.
`
`
` See, e.g., VBR6 User’s Guide at p. 20 (“The process of data retrieval in the Direct SAN Access
`mode includes the following steps:
`1. The backup proxy sends a request to the ESX(i) host to locate the necessary VM on the
`datastore (1).
`2. The host locates the VM and retrieves metadata about the layout of virtual disks on the SAN
`– physical addresses of data blocks – and sends the metadata to the backup proxy (2, 3, 4).
`3. The backup proxy uses this metadata to copy data blocks directly from the SAN and sends
`the data copied from the datastore to the target (5, 6).”).
`
`
`
`Claim 12
`12.1
`12. An apparatus
`comprising:
`
`12.2
`
`a first computer system
`configured to execute at
`least a first virtual
`machine, wherein the first
`computer system is
`configured to: (i) capture a
`state of the first virtual
`machine, the state
`corresponding to a point in
`time in the execution of the
`first virtual machine,
`wherein the first virtual
`machine comprises at least
`one virtual disk storing at
`least one file used by at
`least one application
`executing in the first
`virtual machine, and
`
`12
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`wherein the state of the
`first virtual machine
`comprises the at least one
`file; and
`
`
`
`The first computer system is configured to capture a state of the first virtual machine, the state
`corresponding to a point in time in the execution of the first virtual machine, wherein the first virtual
`machine comprises at least one virtual disk storing at least one file used by at least one application
`executing in the first virtual machine, and wherein the state of the first virtual machine comprises the
`at least one file.
`
`
`
`
` See, e.g., VBR6 User’s Guide at 18 (“Unlike traditional backup tools designed to work with
`physical machines, Veeam Backup & Replication is built specifically for virtual environments.
`It operates at the virtualization layer and uses an image-based approach for virtual machines
`backup. To retrieve VM data, no agent software needs to be installed inside the guest OS –
`instead, Veeam Backup & Replication leverages ESX snapshot capabilities. When a new
`backup session starts, a snapshot is taken to create a cohesive point-in-time copy of a VM
`including its configuration, OS, applications, associated data, system state and so on. Veeam
`Backup & Replication accesses this point-in-time copy to retrieve VM data. Image-based
`backups can be used for different types of recovery – such as full VM recovery, Instant VM
`Recovery, file-level recovery and other.”).
`
`
`See description under claim 1, limitation 2.
`
`13
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
`12.4
`
`(ii) copy at least a portion
`of the state to a destination
`separate from a storage
`device to which the first
`virtual machine is
`suspendable, wherein
`suspending the first virtual
`machine is performed
`responsive to a suspend
`command.
`
`
`Veeam Backup and Replication Version 6.0 is used as part of an apparatus comprising a first computer
`system configured to copy at least a portion of the state to a destination separate from a storage device
`to which the first virtual machine is suspendable, wherein suspending the first virtual machine is
`performed responsive to a suspend command.
`
`
` See, e.g., VBR6 User’s Guide at p. 30 (“Transaction Consistency. When you perform backup
`of a running VM, it is necessary to quiesce (or ‘freeze’) it to bring the file system and
`application data to a consistent state suitable for backup. Backing up a VM without quiescence
`produces a crash-consistent backup. Restoring a crash-consistent backup is essentially
`equivalent to rebooting a server after a hard reset. In contrast to it, restoring transactionally
`consistent backups (produced with VM data quiesced) ensures safety of data for applications
`running on VMs.
`
`To create transactionally consistent backup images of VMware VMs, Veeam Backup &
`Replication provides two options – VMware Tools quiescence and application-aware image
`processing utilizing Windows VSS.”).
` See, e.g., VMware Knowledge Base, Understanding virtual machine snapshots in VMware
`ESXi and ESX, http://kb.vmware.com/kb/1015180 (“Quiescing indicates pausing or altering
`the state of running processes on a computer, particularly those that might modify information
`stored on disk during a backup, to guarantee a consistent and usable backup.”).
`
`
`VMware stuns the virtual disk during the transition to the delta file. This a brief suspension of the
`virtual machine.
`
`During migration using SmartSwitch, the system temporarily suspends the VM to move the state file.
`
`
` See, e.g., VBR6 User’s Guide at p. 50 (“Next, VM state is moved to a new location. Veeam
`Backup & Replication uses different approaches to move the VM state between hosts with
`
`14
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
`Claim 22
`22.1
`22. The apparatus as
`recited in claim 12 wherein
`(i) comprises creating a
`new log of uncommitted
`updates for each virtual
`disk in the first virtual
`machine and creating a
`memory area to capture
`writes to a memory of the
`first virtual machine, such
`that the first virtual
`machine can continue
`executing during (ii).
`
`compatible and non-compatible CPUs.
`• If you move a VM between two hosts with compatible CPUs, Veeam Backup & Replication
`uses SmartSwitch – it suspends a VM to move its state file and then resumes the VM on the
`new host. This ensures minimum downtime, and completely eliminates any data loss during
`migration.”).
`
`
`See description under claim 1, limitation 3.
`
`Veeam Backup and Replication Version 6.0 may be used as part of the apparatus wherein (i)
`comprises creating a new log of uncommitted updates for each virtual disk in the first virtual machine
`and creating a memory area to capture writes to a memory of the first virtual machine, such that the
`first virtual machine can continue executing during (ii).
`
`VBR6 instructs VMware to perform a snapshot, which causes VMware to create delta files that
`capture uncommitted updates to the virtual disk and a memory area to capture writes to a memory of
`the first virtual machine.
`
`
` See, e.g., VBR6 User’s Guide at 18 (“Unlike traditional backup tools designed to work with
`physical machines, Veeam Backup & Replication is built specifically for virtual environments.
`It operates at the virtualization layer and uses an image-based approach for virtual machines
`backup. To retrieve VM data, no agent software needs to be installed inside the guest OS –
`instead, Veeam Backup & Replication leverages ESX snapshot capabilities. When a new
`backup session starts, a snapshot is taken to create a cohesive point-in-time copy of a VM
`including its configuration, OS, applications, associated data, system state and so on. Veeam
`Backup & Replication accesses this point-in-time copy to retrieve VM data. Image-based
`backups can be used for different types of recovery – such as full VM recovery, Instant VM
`Recovery, file-level recovery and other.”).
`
`
`
` See, e.g., VMware Knowledge Base, Understanding virtual machine snapshots in VMware
`
`15
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
`ESXi and ESX, http://kb.vmware.com/kb/1015180 (“A collection of .vmdk and -delta.vmdk
`files for each virtual disk is connected to the virtual machine at the time of the snapshot. These
`files can be referred to as child disks, redo logs, or delta links. These child disks can later be
`considered parent disks for future child disks. From the original parent disk, each child
`constitutes a redo log pointing back from the present state of the virtual disk, one step at a
`time, to the original.”).
` See, e.g., VMware Knowledge Base, Understanding virtual machine snapshots in VMware
`ESXi and ESX, http://kb.vmware.com/kb/1015180 (“The child disk, which is created with a
`snapshot, is a sparse disk. Sparse disks employ the copy-on-write (COW) mechanism, in
`which the virtual disk contains no data in places, until copied there by a write. This
`optimization saves storage space. The grain is the unit of measure in which the sparse disk
`uses the copy-on-write mechanism. Each grain is a block of sectors containing virtual disk
`data. The default size is 128 sectors or 64KB.”)
`
`
`During backups of running machines using VBR6, the system creates a delta file to capture the
`uncommitted updates to the virtual disk. See ‘086 VMware Exhibit 1.
`
`
`‘086 VMware Exhibit 1.
`
`Using the backup and replication features of VBR6, the first virtual machine can continue executing
`while the data is being copied.
`
`
`
`
`16
`
`

`

`EXHIBIT C
`Infringement of ‘086 Patent, VMware products
`
`
`
` See, e.g., VBR6 User’s Guide at p. 8 (“Veeam Backup & Replication supports Windows
`Volume Shadow Copy Service (VSS) enabling backup and replication on live and open
`systems running Windows applications or working with databases (for example, Domain
`Controller, Exchange Server, SQL Server) without shutting them down. It also provides
`advanced options to control truncating of transaction logs so that you can ensure correct
`backup of applications that use transaction logs, and meet requirements of any backup
`scenario. You can select to truncate transaction logs after every backup job, every successful
`backup or not to truncate logs at all.”).
`
`
`VMware creates a memory area to capture writes to a memory of the first virtual machine in response
`to a snapshot call from VBR6, such that the first virtual machine can continue executing during (ii).
`The allocation of memory is a requirement for a running machine.
`
`See description under claim 11.1.
`
`
`
`
`
`17
`
`