/
`
`Filed on behalf of Veeam Software Corporation
`By: Lori A. Gordon
`Michael Q. Lee
`Byron L. Pickard
`Sterne, Kessler, Goldstein & Fox PLLC
`1100 New York Avenue, NW
`Washington, D.C.
`Tel: (202) 371-2600
`Fax: (202) 371-2540
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL
`
`AND APPEAL BOARD
`
`PETITION FOR INTER PAR TES REVIEW
`
`OF U.S. PATENT NO. 790939086
`
`
`
`Filed on behalf of Veeam Software Corporation
`By: Lori A. Gordon
`Michael Q. Lee
`Byron L. Pickard
`Sterne, Kessler, Goldstein & Fox PLLC
`1100 New York Avenue, NW
`Washington, D.C.
`Tel: (202) 371-2600
`Fax: (202) 371-2540
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL
`
`AND APPEAL BOARD
`
`PETITION FOR INTER PAR TES REVIEW
`
`OF U.S. PATENT NO. 790939086
`
`
`
`. 2
`I. Grounds for Standing (37 C.F.R. § 42.104(a)) (cid:9)
`II. Identification of Challenge (37 C.F.R. § 42.104(b))..........................................3
`A. (cid:9) Technical Background....................................................................................3
`B. The Claims of the ’086 Patent and their Construction...................................4
`1. Claim (cid:9) ........................................................................................................4
`2. Claim li ...................................................................................................... 5
`3. Claims 12 and 22......................................................................................... 5
`C. All applied references are prior art to the ’086 patent....................................6
`D. (cid:9) Grounds of Unpatentability ............................................................................7
`1. Ground 1: Lim Anticipates Claims 1, 11, 12, and 22 of the ’086 Patent... 8
`2. Ground 2: VMware ESX Anticipates Claims 1, 11, 12, and 22 of the ’086
`Patent. ............................................................................................................... 15
`3. Ground 3: VMware GSG Anticipates claims 1, 11, 12, and 22 of the ’086
`Patent. ............................................................................................................... 22
`4. Ground 4: Suzaki Anticipates Claims 1 and 12 of the ’086 Patent . ........ 29
`5. Ground 5: Suzaki in view of Wang Renders Obvious Claims 11 and 22 of
`the 1 086 Patent..................................................................................................33
`6. Ground 6: Suzaki in view of Hipp Renders Obvious Claims 11 and 22 of
`the’086 Patent..................................................................................................36
`7. Ground 7: Hipp Anticipates Claims 1, 11, 12, and 22 of the ’086 Patent.
`40
`Conclusion....................................................................................................48
`
`III. (cid:9)
`
`-1-
`
`
`
`Veeam Software Corporation petitions the United States Patent Office to
`
`institute an inter partes review of claims 1, 11, 12, and 22 (collectively, the
`
`"challenged claims" or "claims under review") of United States Patent No.
`
`7,093,086 to van Rietschote, et al. ("the ’086 patent"). According to PTO records,
`
`the ’086 patent is assigned to Symantec Corporation ("Symantec" or "Patent
`
`Owner"). A copy of the ’086 patent is provided as VEEAM 1001.
`
`Symantec is asserting claims 11 and 22 against Veeam in a concurrent
`
`litigation, styled Symantec Corporation v. Veeam Software Corporation, No. 3:14-
`
`cv-00700-SI (consolidated with 3:2012-cv-01035) (N.D.C.A.) (the "Concurrent
`
`Litigation").
`
`I. (cid:9)
`
`Grounds for Standing (37 C.F.R. § 42.104(a))
`
`The undersigned and Veeam certify that the ’086 patent is available for
`
`review. The ’086 patent has an effective filing date of March 28, 2002, meaning
`
`the timing requirements set forth in 35 U.S.C. § 311(c) do not apply. See AlA
`
`Technical Corrections Bill, H.R. 6621, 112th Cong. § 1(d)(1) (2013) (enacted).
`
`The Petitioner further certifies that it is not estopped from requesting an inter
`
`partes review challenging claims 1, 11, 12, and 22 on the grounds identified in the
`
`petition.
`
`-2-
`
`
`
`II. (cid:9)
`
`Identification of Challenge (37 C.F.R. § 42.104(b))
`
`The challenged claims of the ’086 patent combine two well-known
`
`computing concepts: (i) copying data to a separate destination and
`
`(ii) virtual machines. (’086 patent, claim 1.) Copying data to a separate
`
`destination was a standard feature of virtual machines before the ’086 filing date.
`
`For this reason, this petition presents a reasonable likelihood of prevailing and
`
`should be granted on all grounds.
`
`Veeam presents seven grounds for rejections(cid:151)five anticipating grounds and
`
`two obviousness grounds(cid:151)that show that claims 1, 11, 12, and 22 are
`
`unpatentable.
`
`A. Technical Background
`
`In general, a virtual machine is a software implementation of a physical
`
`machine, which includes virtual hardware capable of running operating systems
`
`and other applications. (’086 patent, 4:8-10.) These virtual machines include
`
`virtual disks, which are mapped to physical disks. (’086 patent, 3:56-63.) Because
`
`virtual machines are software, a computer can execute several different virtual
`
`machines concurrently, thereby utilizing resources of the computer more
`
`efficiently. (Shenoy Declaration, ¶ 13.) Virtual machines have a long history. As
`
`early as the 1970s, IBM sold virtual-machine products. (Shenoy Declaration, ¶ 13
`
`(provided as Exhibit 1002, hereinafter "Shenoy Declaration").)
`
`-3-
`
`
`
`Like computers, a virtual machine’s data can be copied to a separate
`
`destination. (Shenoy Declaration, ¶ 14.) For example, the state of a virtual
`
`machine can be copied to permit replication of aspects of the virtual machine.
`
`(Shenoy Declaration, ¶ 14.) In another example, the state of a virtual machine can
`
`be copied to back up the virtual machine, thereby mitigating the impact of an
`
`unexpected crash of the virtual machine or related physical computer. (’086
`
`patent, 1:46-67; Shenoy Declaration, ¶ 14.)
`
`Below, Veeam first sets forth the broadest reasonable construction of certain
`
`terms in the challenged claim. Second, Veeam shows the challenged claims are
`
`unpatentable.
`
`B. (cid:9)
`
`The Claims of the ’086 Patent and their Construction
`
`The terms recited in claims 1, 11, 12, and 22 should be given their broadest
`
`reasonable interpretation, consistent with the patent disclosure, as understood by
`
`one of ordinary skill in the art. See In re Am. Acad. of Sci. Tech. Or., 367 F.3d
`
`1359, 1364 (Fed. Cir. 2004).
`
`Each challenged claim is described below.
`
`1. (cid:9)
`
`Claim 1
`
`Claim 1 recites a computer-readable medium storing a plurality of
`
`instructions that perform two steps. First, a state of a "first" virtual machine is
`
`captured, and, second, at least a portion of the state is copied to a destination
`
`A
`
`
`
`"separate from a storage device to which the first virtual machine is suspendable."
`
`Claim 1 is reproduced below:
`
`1.0
`
`1.1
`
`1.2
`
`1.3
`
`1.4
`
`1.5
`
`
`
`Claim 1
`A computer readable medium storing a plurality of instructions comprising
`instructions which, when executed:
`(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 one application executing in the first
`virtual machine,
`and wherein the state of the first virtual machine comprises the at least one
`file; and
`(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.
`
`2.
`
`Claim 11
`
`Claim 11 depends from claim 1 and is reproduced below:
`
`3.
`
`Claims 12 and 22
`
`Claims 12 and 22 are analogous to claims 1 and 11 respectively, with the
`
`former claiming an apparatus and the latter claiming a computer-readable medium.
`
`Otherwise, only minor differences exist between the claims.
`
`-5-
`
`
`
`For example, claim 1 recites "a first computer system" as "executing" the
`
`"first virtual machine," whereas claim 12 recites "a first computer system
`
`configured to execute at least a first virtual machine." Outside of these minor
`
`differences, claims 1 and 12 are substantively similar. Depending from claims 1
`
`and 12, claims 11 and 22 are also substantively similar. In particular, claims 11
`
`and 22 differ only in their preamble recitations of a "computer readable medium"
`
`versus an "apparatus." Given these similarities, the grounds for unpatentability
`
`below treat claims 1 and 12 together and 11 and 22 together.
`
`C. (cid:9)
`
`All applied references are prior art to the ’086 patent.
`
`The earliest possible priority date of the ’086 patent is March 28, 2002. This
`
`petition cites six references, each of which is prior art:
`
`1. U.S. Patent No. 6,795,966 to Lim ("Lim," provided as VEEAM 1004) -
`
`Lim is § 102(e) prior art to the ’086 patent. Lim issued from an application
`
`filed on February 4, 2000, and claims priority to May 15, 1998.
`
`2. "VMware ESX Server: User Manual" ("VMware ESX," provided as
`
`VEEAM 1005) - VMware ESX is § 102(a) prior art to the ’086 patent.
`
`VMware ESX has a 2001 copyright date and was publicly available at least
`
`by June 23, 2001. (VEEAM 1012 (a WebArchive capture dated June 23,
`
`2001 showing that VMware ESX was available for purchase).)
`
`
`
`3. "Getting Started Guide: VMware 2.0 for Linux"
`
`("VMware GSG,"
`
`provided as VEEAM 1006) - VMware GSG is § 102(b) prior art to the ’086
`
`patent. It was published in 2000.
`
`4. "Checkpoint for Network Transferable Computer" by Suzaki
`
`(provided
`
`as VEEAM 1007) - Suzaki is § 102(a) prior art to the ’086 patent. It
`
`published on July 26, 2001. The English translation of Suzaki is provided as
`
`VEEAM 1008, and a certification that the translation is true and accurate is
`
`provided as VEEAM 1009.
`
`5. "Integrating Checkpointing with Transaction Processing" by Wang
`
`("Wang," provided as VEEAM 1010) - Wang is § 102(b) prior art to the
`
`’086 patent. Wang is an IEEE paper published in 1997.
`
`6. U.S. Patent No. 6,917,963 to Hipp ("Hipp," provided as VEEAM 10 11) -
`
`Hipp is § 102(e) prior art to the ’086 patent. Hipp issued from an
`
`application filed on October 5, 2000 and claiming priority back to October 5,
`
`1999.
`
`D. (cid:9)
`
`Grounds of Unpatentability
`
`This petition presents seven grounds of unpatentability:
`
`(cid:149) Ground 1: Lim anticipates claims 1, 11, 12, and 22 under
`
`35 U.S.C. §
`
`102(e).
`
`-7-
`
`
`
`. Ground 2: VMware ESX anticipates claims 1, 11, 12, and 22 under 35
`
`U.S.C. § 102(a).
`
`. Ground 3: VMware GSG anticipates claims 1, ii, 12, and 22 under 35
`
`U.S.C. § 102(b).
`
`(cid:149) Ground 4: Suzaki anticipates claims 1 and 12 under
`
`35 U.S.C. §
`
`102(a).
`
`. Ground 5: Suzaki in view of Wang renders obvious claims 11 and 22
`
`under 35 U.S.C. § 103(a).
`
`(cid:149) Ground 6: Suzaki in view of Hipp renders obvious claims 11 and 22
`
`under 35 U.S.C. § 103(a).
`
`(cid:149) Ground 7: Hipp anticipates claim 1, 11, 12, and 22 under 35 U.S.C. §
`
`102(e).
`
`1. (cid:9)
`
`Ground 1: Lim Anticipates Claims 1, 11, 12, and 22 of the
`’086 Patent.
`
`Lim anticipates claims 1, 11, 12, and 22. Lim describes capturing the state
`
`of a virtual machine: "state is the entire collection of all information that is
`
`necessary and sufficient to uniquely determine the status of all hardware and
`
`software components at the completion of any given processor instruction." (Lim,
`
`10:27-30.) To capture the state ("state vector" in Lim’s terms) the "the [virtual]
`
`machine is interrupted and its operations suspended (using normal interrupt
`
`techniques). The state extraction mechanism . . . then extracts the machine state
`
`
`
`and saves it in storage . . . as an initial checkpoint [(state vector)] SO." (Lim, 18:5-
`
`8.) "Only one state vector(cid:151)the initial vector SO(cid:151)need be stored in its entirety;
`
`subsequent states are represented not as state vectors, but rather as vectors of state
`
`changes using copy-on-write techniques." (Lim, 23 :52-55.)
`
`Lim depicts copying the state information over a network in its FIG. 6,
`
`reproduced below. "[T]he state vector of a first virtual machine VM1 . . . could be
`
`transferred over any conventional transmission medium to any other architecturally
`
`similar virtual machine VM2 and loaded into that virtual machine as its initial
`
`state." (Lim, 21:44-49.) "The transmission medium could be a... network such
`
`as the Internet or an internal network within an enterprise, with the state vector
`
`being transferred using any conventional format such as FTP." (Lim, 21:50-54.)
`
`POWER (cid:9)
`
`[VM2(0)1
`
`{ VM2(1) (cid:9)
`
`VM2(2)
`
`Sn
`
`I (cid:9)
`
`TRANSMISSION MEDIUM
`
`I POWER (cid:9)
`ON (cid:9)
`
`Cvvml(o) ___
`
`...
`
`Sn
`
`Lim, Figure 6
`
`S
`
`
`
`a) (cid:9)
`
`Lim anticipates claims 1 and 12.
`
`Lim discloses "a computer readable medium storing a plurality of
`(1)
`instructions comprising instructions."
`
`Lim discloses "[s]tandard volatile and non-volatile storage devices 140, 141
`
`[that] can be accessed by [or, read by] the operating system 130, by the
`
`hardware 100, or . . . directly by applications." (Lim, 12:66-13:3.) The storage
`
`devices include "pre-stored instructions, that is, a program." (Lim,
`
`10:57.)
`
`(2) Lim discloses "capturing] 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."
`
`Lim states: a "virtual machine has a total state that includes state information
`
`of the virtual processor, of the virtual memory, of the virtual operating system, of
`
`each application program, and of each virtual peripheral device." (Lim, 6:42-45.)
`
`"Saving of [the] state information can be accomplished . . . [by] access[ing] and
`
`transfe[rring] into a specified storage area all of the elements of the state vector..
`
`." (Lim, 10:54-59.) Thus, Lim discloses "capturing a state of a . . . virtual
`
`machine executing on a... computer system," as claimed.
`
`In Lim, the captured state also corresponds to a point in time in the virtual
`
`machine’s execution, because the virtual machine is first suspended at a given
`
`processor instruction prior to capture. Specifically, Lim discloses that, to capture
`
`the state of the virtual machine, "at the conclusion of a particular (virtual) machine
`
`instruction, the machine[s] . . . operation is suspended . . . . [T]hen . . . the
`
`_10-
`
`
`
`machine state [is extracted] and save[d] in storage . . . as the initial checkpoint."
`
`(Lim, 18:2-8.) The captured "state is the entire collection of all information that is
`
`necessary and sufficient to uniquely determine the status of all hardware and
`
`software components at the completion of any given processor instruction." (Lim,
`
`10:26-30.)
`
`(3)
`Lim discloses that "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."
`
`Lim discloses that the virtual disk stores a file used by an application
`
`executing in the virtual machine: a "virtual machine (VM1) 200 . . . includ[es] a.
`
`’virtual disk,’ that is, virtual memory (VMEM) 206. . . ." (Lim, 14:27-30.) Lim
`
`discloses that the virtual disks include files.
`
`(See, e.g., Lim, 3:31-33.) Lim also
`
`discloses that the files are used by "[a]pplications 220 1 , 2202. . . [that] are ’loaded
`
`into,’ that is, associated with, the virtual machine 200." (Lim, 14:33-35.)
`
`(4)
`Lim discloses that "the state of the first virtual machine comprises
`the at least one file."
`
`Lim discloses that the captured state includes at least one file. "The machine
`
`state can be represented as an encapsulation or enumeration, that is, a list or data
`
`structure(cid:151)a state vector S (e 1, e2, . . . , en)(cid:151)whose elements e 1, e2, . . . , en are
`
`all the parameters, register values, I/O and other peripheral device settings, buffer
`
`and cache contents, disk and memory contents, etc., that define the state." (Lim,
`
`10:46-51 (emphasis added).)
`
`-11-
`
`
`
`(5) Lim discloses "copying] at least a portion of the state to a
`destination separate from a storage device to which the first virtual
`machine is suspendable."
`
`Lim copies at least a portion of the state to a destination by transferring the
`
`state vector over a network. Lim explains: "the state vector of a first virtual
`
`machine VM1 . . . could be transferred over any conventional transmission
`
`medium to any other architecturally similar virtual machine VM2 and loaded into
`
`that virtual machine as its initial state." (Lim, 21:43-49.) "The transmission
`
`medium could be a... network such as the Internet or an internal network within
`
`an enterprise, with the state vector being transferred using any conventional format
`
`such as FTP." (Lim, 21:50-54.)
`
`The destination disclosed in Lim is separate from a storage device to which
`
`the virtual machine is suspendable. When the virtual machine’s "operation is
`
`suspended. . .The state extraction mechanism. . .then extracts the machine state and
`
`saves it in storage." (Lim, 18:4-7 (emphasis added).) "Standard volatile and non-
`
`volatile storage devices 140, 141, respectively(cid:151)referred-to collectively as
`
`’storage’(cid:151)are connected to the hardware 100." (Lim, 12:66-13:3.) The stored
`
`state is copied from storage at the virtual machine to an external storage device.
`
`For example, as mentioned above, these storage devices are separated from Lim’s
`
`destination by at least a network, such as the Internet. Thus, Lim discloses copying
`
`-12-
`
`
`
`at least a portion of the state to a destination separate from a storage device to
`
`which the first virtual machine is suspendable, as claimed.
`
`(6) Lim discloses that "suspending the first virtual machine is
`performed responsive to a suspend command."
`
`In Lim, the point at which the suspend operation occurs "may be deliberately
`
`set, for example by encoding the interrupt into the normal instruction stream, or it
`
`may occur because of some error that leads to an interrupt. Note that the virtual
`
`machine monitor in the preferred embodiment is able to intercept and react to all
`
`such ’unplanned’ interrupts as well." (Lim, 18:13-20.) Such an interrupt is a
`
`suspend command, which causes the virtual machine to suspend.
`
`However, Lim further discloses that suspending the virtual machine can be
`
`performed responsive to a user inputted suspend command. Lim discloses that
`
`"[i]nitiating the storage of a checkpoint may be done either by user decision, or
`
`automatically, according to some schedule, or both. For example, a conventional
`
`icon or menu item or keyboard command could be included in some portion of a
`
`standard display such as a tool bar. Whenever the user selects, for example
`
`’clicks’ on, the icon, a checkpoint request signal would then be passed to the
`
`virtual machine monitor." (Lim, 26:41-49.)
`
`- 13 -
`
`
`
`b) (cid:9)
`
`Lim Anticipates Claim 11 and 22.
`
`Lim discloses "creating a new log of uncommitted updates for
`(1)
`each virtual disk in the first virtual machine."
`
`By disclosing the creation of change vectors, Lim discloses creating a new
`
`log of uncommitted updates as claimed. "In [Lim’s] preferred embodiment .
`
`only one state vector(cid:151)the initial vector SO(cid:151)need be stored in its entirety;
`
`subsequent states are represented not as entire state vectors, but rather as vectors of
`
`state changes using copy-on-write techniques." (Lim, 23:52-55.) For example,
`
`"[f]or [sic] state which is large and changes slowly, such as disk contents, it is
`
`more efficient to keep a log of the changes instead of a copy of the entire
`
`contents." (Lim, 11:67-12:3 (emphasis added).) Lim further discloses that the
`
`updates can be uncommitted as claimed: "[t]his log [of changes] can then be
`
`discarded to roll back the transaction, or it can be saved, or it can be applied to the
`
`first checkpoint to commit the transaction." (Lim, 11:53-56 (emphasis added).)
`
`Thus, until the log of changes is applied to the first checkpoint, the updates
`
`included in the log remain uncommitted.
`
`(2) Lim discloses "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)."
`
`Lim explains that the total state of the virtual machine is captured in a state
`
`vector or checkpoint. (Lim, 6:48-52). The total state includes "state
`
`information.. .of the virtual memory." (Lim, 6:42-43.) However, because "each
`
`-14-
`
`
`
`state vector may contain a large data set since the state also includes the contents of
`
`memory. . . The invention also provides a method for reducing the amount of
`
`storage needed for the state vector." (Lim, 19:50-56.) In particular, Lim describes
`
`using copy-on-write techniques to create state vectors such that "only updates to
`
`the state vectors from checkpoint to checkpoint need be stored." (Lim,
`
`19:59-62.)
`
`Since part of the state vector pertains to memory, it follows that at least the portion
`
`of the state vector storing updates (i.e. writes) pertaining to memory would also be
`
`stored in memory since the state vectors themselves are stored in a "dedicated
`
`memory partition." (Lim, 19:54-55; Shenoy Declaration, ¶ 21.)
`
`Lim discloses that the virtual machine can continue executing during the
`
`copying, as claimed. Lim explains that the stored state vector is preferably stored
`
`in manner such that it "will persist even after system power is turned off and back
`
`on again." In addition, "any stored state vector may be loaded into the
`
`corresponding virtual machine, or even into a different virtual machine. .. ." (Lim,
`
`20:40-42 (emphasis added).) Since the stored state vector persists, it can be copied
`
`to another virtual machine at any time, for example while the virtual machine is
`
`executing. (Shenoy Dec, ¶ 22.).
`
`2. (cid:9)
`
`Ground 2: ViViware ESX Anticipates Claims 1, 11, 12, and
`22 of the ’086 Patent.
`
`VMware ESX describes a VMware product, and anticipates claims 1, 11,
`
`12, and 22. The ViViware ESX manual is provided to operate VMware ESX,
`
`- 15-
`
`
`
`which "enables. . .mainframe-class virtual machine technology." (VMware ESX, p.
`
`VMware ESX captures state information in two files(cid:151)a .std file and a .redo
`
`file. "When a virtual machine is suspended, its state is written to a file with a .std
`
`extension." (VMware ESX, p. 97.) When the virtual machine is operating,
`
`"changes are saved in a redo-log file." (VMware ESX, p. 58.) For both files,
`
`VMware ESX describes copying the state information to a remote location.
`
`VMware ESX explains that, for the .std file, "[w]hen a virtual machine is
`
`suspended, . . . [b]y default, the .std file is written to the same directory as the
`
`configuration file." (VMware ESX, p. 97.) However, the directory "containing the
`
`configuration file [can also be] remote." (VMware ESX, p. 97.) Similarly,
`
`VMware ESX states that "[t]he redo log can. . . be transported to a remote site."
`
`(VMware ESX, p. 106) Thus, VMware ESX discloses capturing state information
`
`and copying state information to a separate destination.
`
`a) (cid:9)
`
`VMware ESX anticipates claim 1.
`
`(1) VMware ESX discloses "a computer readable medium storing a
`plurality of instructions comprising instructions."
`
`VMware ESX was a software product sold by VMware. Thus, VMware
`
`ESX describes a computer-readable medium storing a plurality of instructions
`
`comprising instructions as claimed.
`
`-16-
`
`
`
`(2) V1\’Iware ESX discloses "capturing] 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."
`
`VMware ESX describes "mainframe-class virtual machine technology."
`
`(VMware ESX, p. 8.) The ESX server software has a suspend that "save[s] the
`
`current state of a virtual machine." (VMware ESX, p. 149.) The state captures "all
`
`running applications in the same state they were at the time you suspended the
`
`virtual machine." (VMware ESX, p. 65 (emphasis added).) Thus, when the virtual
`
`machine is suspended, the ESX server captures a state of the virtual machine
`
`corresponding to a point in time, as claimed.
`
`In addition to capturing a state when the virtual machine is suspended, the
`
`ESX server can also capture a state during operation. Specifically, the ESX server
`
`captures changes intended to be made to the virtual disk during a "working
`
`session" in a REDO log: "Append mode [] stores changes in a redo log. It
`
`continually adds changes to the redo log until you remove the redo-log file or
`
`commit the changes using the commit command."( VMware ESX, p.39.) The state
`
`captured in the REDO log corresponds to a point-in-time in execution: "All writes
`
`to an append mode disk issued by software running inside the virtual machine
`
`appears to be written to the disk, but are in fact stored in a temporary file
`
`(.REDO)." (VMware ESX, p.148.)
`
`- 17 -
`
`
`
`(3) VMware ESX discloses "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."
`
`VMware ESX discloses that the virtual machine includes a virtual disk
`
`storing a file used by an application executing in the virtual machine as claimed.
`
`VMware ESX describes a "setup process [that] allows you to create one virtual
`
`disk for your virtual machine." (VMware ESX, p. 39.) On the virtual disk, "you
`
`can also create a VMIFS file system on the partition or disk." (VMware ESX, p.
`
`47.) In addition to having a virtual disk with a file system, "[e]ach virtual machine
`
`is configured with its own . . . applications." (VMware ESX, p. 8.) When the
`
`applications are executing in the virtual machine, the applications would utilize the
`
`files and file system of the virtual disk. (Shenoy Declaration, ¶ 25.)
`
`ViViware ESX discloses that "the state of the first virtual machine
`(4)
`comprises the at least one file."
`
`VMware ESX discloses that the state of the virtual machine includes a file as
`
`claimed. "When a virtual machine is suspended, its state is written to a file with a
`
`.std extension." (VMware ESX, p. 97.) "This file contains the entire state of the
`
`virtual machine," including files used by the applications. (VMware ESX, p. 98,
`
`emphasis added.) As mentioned above, the state may also be captured in a redo
`
`file. "The redo log contains the incremental changes to the disk image," including
`
`changes to a file used by an application. (VMware ESX, p. 106.)
`
`- 18 -
`
`
`
`VMware ESX discloses "copying] at least a portion of the state to
`(5)
`a destination separate from a storage device to which the first virtual
`machine is suspendable."
`
`VMware ESX describes copying at least a portion of the state to a remote
`
`site separate from a storage device to which the first virtual machine is
`
`suspendable, as claimed, by disclosing that the .redo file can be copied to a remote
`
`location: "The redo log can.. .be transported to a remote site and copied to the
`
`SCSI disk" of the remote site. (VMware ESX, p. 106.) Since the redo log contains
`
`the changes made to a disk, the redo log is "at least a portion of the state."
`
`VMware ESX discloses that "suspending the first virtual machine
`(6)
`is performed responsive to a suspend command."
`
`VMware ESX discloses that the virtual machine can be suspended in
`
`response to a suspend command, stating: "You can suspend a virtual machine at
`
`any desired point in its operation." (VMware ESX, p. 97.) More particularly,
`
`"[w]ith a remote console connected to that virtual machine, click Suspend on the
`
`button bar." (VMware ESX, p. 65.)
`
`b) VMware ESX Anticipates Claim ii.
`
`(1) VMware ESX discloses "The computer readable medium as
`recited in claim 1 wherein (1) comprises creating a new log of
`uncommitted updates for each virtual disk in the first virtual machine."
`
`VMware ESX discloses that changes (i.e. updates) to each virtual disk can
`
`be stored in a REDO log file: "Append mode [] stores changes in a redo log. It
`
`continually adds changes to the redo log until you remove the redo-log file or
`
`- 19 -
`
`
`
`commit the changes using the commit command." (VMware ESX,
`
`p. 39.)
`
`Specifically, "All writes to an append mode disk issued by software running inside
`
`the virtual machine appears to be written to the disk, but are in fact stored in a
`
`temporary file (.REDO)." (VMware ESX, p. 148.)
`
`VMware ESX also discloses that the updates in the redo log are
`
`"uncommitted" as claimed: "However, in . . . [append] mode ..... [a] 11 changes
`
`are continually appended to the redo log. At any point, the changes can be undone
`
`by removing the redo log." (VMware ESX, pp. 58-59.) Not only can changes can
`
`be "undone by removing the redo log," "[t]he contents of the redo log can then be
`
`merged into the copy of the disk image using the commit command." (VMware
`
`ESX, p. 106.) Thus, the changes in the log remain uncommitted until the commit
`
`command is executed.
`
`(2) YlViware ESX discloses "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)."
`
`In the concurrent litigation, Patent Owner has alleged this limitation is met
`
`by Petitioner’s accused product because: "VMware creates a memory area to
`
`capture writes to a memory of the first virtual machine in response to a snapshot
`
`call . . . such that the first virtual machine can continue executing during (ii).
`
`The
`
`allocation of memory is a requirement for a running machine."
`
`(Symantec’s
`
`Infringement Contentions, p. 12 (included as Exhibit VEEAM 1013).) In other
`
`-20-
`
`
`
`words, Patent Owner has alleged that "creating a memory area to capture writes to
`
`a memory of the first virtual machine" is met because "the allocation of memory is
`
`a requirement for a running machine." Thus, according to Patent Owner’s own
`
`interpretation of this limitation, any executing virtual machine satisfies this
`
`limitation as long as it "can continue executing during (ii)."
`
`Notably, claim 11 recites, the virtual machine "can continue executing
`
`during (ii)." (emphasis added). This limitation does not require the virtual machine
`
`to be executing during (ii) (i.e. the copying step), instead it only requires that the
`
`virtual machine could be executing during (ii). VMware ESX meets this
`
`limitation.
`
`VMware ESX discloses that the REDO log can be copied to a remote site:
`
`"[t}he contents of the redo log can be copied to the file system of the console
`
`operating system using the exportraw command. The redo log can
`
`then [after the
`
`exportraw command] be transported to a remote site and copied to the SCSI
`
`disk.... " (VMware ESX, p. 106 (emphasis added); see also Shenoy Declaration, ¶
`
`27.) Thus, after the exportraw command completes, a copy of the REDO log is
`
`located in the console operating system.
`
`The console operating system is separate from the virtual machines: "The
`
`purpose of the VMware Console Operating System is to start up and administer
`
`your virtual machines. It is a customized version of Linux based on the Red Hat
`
`- 21 -
`
`
`
`6.2 distribution." (VMware ESX, p. 82.) Because the redo log is copied after the
`
`exportraw command completes, the REDO log is copied from the console
`
`operating system, and not the virtual machine. (Shenoy Declaration, ¶ 27.)
`
`Therefore, since the console operating system is separate from the virtual machine,
`
`the virtual machine could continue to execute while the redo log is copied to "a
`
`remote site." (Shenoy Declaration, ¶ 27.)
`
`3. (cid:9)
`
`Ground 3: VMware GSG Anticipates claims 1, 11, 12, and
`22 of the ’086 Patent.
`
`VMware GSG describes a software product. (VMware GSG,
`
`p. 1-1).
`
`Specifically, VMware GSG is a user manual describing the VMware 2.0 for Linux
`
`product. (VMware GSG, p. 1-1.) VMware GSG describes virtual machines as: "[a]
`
`virtualized x86 PC environment on which a guest operating system and associated
`
`application software can run." (VMware GSG, p. 4-3.) In VMware GSG, "[u]sing
`
`Suspend and Instant Restore.. .[y]ou can save the current state of your virtual
`
`machine." (VMware GSG, p. 2-5.) The virtual machine is suspendable to a
`
`storage device: "If you suspend to memory, the saved state of the virtual machine
`
`is available as long as the virtual machine is powered on." (VMware GSG, p. 3-
`
`25, emphasis added.)
`
`VMware GSG also describes capturing and copying state information during
`
`execution. Specifically, during execution, state is captured and copied to a REDO
`
`log. For example, changes made during a "
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