Filed on behalf of Veeam Software Corporation
`Lori A. Gordon
`By: (cid:9)
`Michael Q. Lee
`Byron L. Pickard
`Daniel S. Block
`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 BOAR])
`
`Case 1PR2013-00150
`Patent 7,093,086
`
`REPLY TO PATENT OWNER’S RESPONSE
`
`
`Lori A. Gordon
`By: (cid:9)
`Michael Q. Lee
`Byron L. Pickard
`Daniel S. Block
`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 BOAR])
`
`Case 1PR2013-00150
`Patent 7,093,086
`
`REPLY TO PATENT OWNER’S RESPONSE
`
`
`
`Table of Contents
`
`I.
`
`Introduction
`
`II. Argument (cid:9)
`
`. 1
`
`. 1
`
`A. (cid:9)
`
`The Board Should Reject Patent Owner’s Constructions . ........................... 1
`
`1.
`
`2.
`
`3.
`
`The challenged claims are not limited to a single backup program..........2
`
`The Board correctly construed "state of a virtual machine " ..................... 4
`
`The claims do not require the virtual machine to be executing during the
`
`"capturing" step (i).............................................................................................
`
`5
`
`B. (cid:9)
`
`Lim, ESX and GSG anticipate each of the challenged claims.....................7
`
`1.
`
`2.
`
`Lim, ESX, and GSG disclose a "backup program." .................................7
`
`Patent Owner’s argument that Lim, ESX, and GSG fail to disclose
`
`capturing "state of a virtual machine" is without merit . .................................... 9
`
`3.
`
`Patent Owner’s argument that Lim, ESX, and GSG fail to disclose
`
`capturing "state" while the virtual machine is executing is without merit . ..... 10
`
`4.
`
`Patent Owner’s argument that Lim, ESX and GSG fail to disclose "a new
`
`log of uncommitted updates" and a "memory area" is without merit . ............ 10
`
`5.
`
`Patent Owner’s argument that GSG fails to disclose "copying" is without
`
`merit..................................................................................................................13
`
`
`
`C. (cid:9)
`
`Suzaki alone or in combination renders claims 1, 11, 12 and 22
`
`unpatentable. ........................................................................................................ 14
`
`D. (cid:9)
`
`Conclusion..................................................................................................15
`
`- 11 -
`
`
`
`TABLE OF AUTHORITIES
`
`CASES
`
`KSR Int’lv. Teleflex,
`550 U.S. 398 (2007) ........................................................................................
`
`15
`
`AK Steel Corp. v. Sollac & Ugine,
`344 F.3d 1234, 1242 (Fed. Cir. 2003)................................................................3
`
`Intamin Ltd. v. Magnetar Techs., Corp.,
`483 F.3d 1328, 1335 (Fed. Cir. 2007)................................................................ 6
`
`Liebel-Flarsheim Company v. Medrad, Inc.,
`358 F.3d 898, 910 (Fed. Cir. 2004)....................................................................3
`
`- 111-
`
`
`
`I.
`
`Introduction
`
`The Board, in granting the instant
`
`inter partes review, found that Petitioner
`
`has presented a compelling case for finding the challenged claims of the ’086 pa-
`
`tent unpatentable. In response to the Board’s well-reasoned decision, Patent Owner
`
`provides a lengthy tract based on improperly misstating the claim language, im-
`
`porting limitations into the claims, ignoring the specification’s language, improp-
`
`erly summarizing the applied prior art, and ignoring pertinent case law dealing
`
`with claim differentiation. This Reply treats each of the Patent Owner’s significant
`
`transgressions with the detail possible in a 15-page limit.
`
`II.
`
`Argument
`
`A. The Board Should Reject Patent Owner’s Constructions.
`
`To support patentability, Patent Owner argues three improperly narrow con-
`
`structions of the claims: (1) that the challenged claims are limited to a single back-
`
`up program performing each of the steps, (2) that "state" must include information
`
`sufficient to resume the virtual machine, and (3) that the claims require the virtual
`
`machine to be executing during the capturing step. Patent Owner’s constructions
`
`are contrary to the explicit language of the claims and improperly import limita-
`
`tions into the claims. Accordingly, the Board should reject Patent Owner’s argu-
`
`ments and affirm the interpretations the Board relied on in instituting this Review.
`
`- 1-
`
`
`
`1. The challenged claims are not limited to a single backup program.
`
`Patent Owner contends that independent claims 1 and 12 require a single
`
`"backup program" that "performs the two recited steps [] to backup a virtual ma-
`
`chine." (Response, pp. 19-20.) Patent Owner improperly imports these two limita-
`
`tions into claims 1 and 12, despite the absence of the word "backup" in those
`
`claims, the use of the word "backup" in dependent claims, and statements in the
`
`specification that prohibit limiting claim scope to a particular embodiment like
`
`backup.
`
`a) The claims do not require "backup."
`
`Claims 1 and 12 broadly describe a "computer readable medium storing a
`
`plurality of instructions" (claim 1) and "an apparatus comprising: a first computer
`
`system . . . configured to" (claim 12), with both structures performing the same
`
`two steps: capturing a state of a virtual machine and copying at least a portion of
`
`the state to a destination. The explicit claim language neither recites nor requires
`
`that these two steps be performed by a single backup program. The absence of the
`
`term "backup" compels the conclusion that the Patent Owner did not limit claims 1
`
`and 12 to only backup embodiments. The specification supports that conclusion
`
`because it states that the two recited steps can be performed in various contexts
`
`other than backup. (See e.g., ’086 patent, Fig. 3 (depicting a disaster recovery em-
`
`bodiment)(provided at VEEAM 1001).) Thus, the specification directly contradicts
`
`-2-
`
`
`
`Patent Owner’s argument.
`
`Further, dependent claims 2 and 13 narrow independent claims 1 and 12 by
`
`adding the limitation that "the destination is a backup medium coupled to the first
`
`computer system and used to backup data from the first computer system." (em-
`
`phasis added.) Under the doctrine of claim differentiation, these claims show that
`
`claims 1 and 12 should be construed more broadly than just backup. See e.g., AK
`
`Steel Corp. v. Sollac & Ugine, 344 F.3d 1234, 1242 (Fed. Cir. 2003) ("Under the
`
`doctrine of claim differentiation, dependent claims are presumed to be of narrower
`
`scope than the independent claims from which they depend."); see also Liebel-
`
`Flarsheim Company v. Medrad, Inc., 358 F.3d 898, 910 (Fed. Cir. 2004).
`
`Finally, Patent Owner’s expert, Dr. Green, confirmed that claims 1 and 12
`
`are not explicitly limited to backup. After being confronted with the explicit lan-
`
`guage of claims 1 and 12, Dr. Green testified that copying only an unspecified por-
`
`tion of the state is not always sufficient for backup, (i.e., to backup the virtual ma-
`
`chine). (See Green Tr., 249:22-251:9 (provided at VEEAM 1026).)
`
`b) The claims are not limited to a single backup program.
`
`Not content with improperly importing a "backup" limitation into the inde-
`
`pendent claims, Patent Owner further incorrectly argues that claims 1 and 12 are
`
`restricted to a single "program." (Response, p. 20.) That limitation does not appear
`
`in the claims and is directly contradicted by the specification. The ’086 patent con-
`
`-3-
`
`
`
`firms that the actions recited in claims 1 and 12 do not need to be performed by the
`
`same program: "the backup program. . . (or portions thereof) may be implemented
`
`as part of the VM kernel." (’086 patent, 14:11-14.)
`
`2. The Board correctly construed "state of a virtual machine"
`
`The Board adopted the same construction for the term "state of a virtual ma-
`
`chine" as the District Court’s: "information regarding the [first] virtual machine to
`
`permit the virtual machine to resume execution of the application at the point in
`
`time the state was captured." (Decision, pp. 5-6.) The Board’s construction, based
`
`solely on the teachings of the specification, reflects the broadest reasonable inter-
`
`pretation consistent with the specification.
`
`Patent Owner now argues for a narrow construction, but in the District Court
`
`litigation suggested a far broader construction arguing that "[t]he patent specifica-
`
`tion uses the term ’state’ broadly to potentially include any of a variety of infor-
`
`mation regarding the virtual machine, and the construction should reflect this us-
`
`age." (Symantec Opening Claim Construction Brief, p. 6 (provided at VEEAM
`
`1027).) Now, faced with the reasonable likelihood that its claims are invalid in
`
`light of five separate grounds of rejection, Patent Owner retreats from the broad
`
`interpretation it proffered in the litigation to a narrow interpretation, arguing that
`
`state should be construed as "all of the state information needed" to "resume exe-
`
`cution of [the] virtual machine on any computer" and further requiring that specific
`
`KAM
`
`
`
`information(cid:151)virtual machine configuration(cid:151)must always be present in state. (Re-
`
`sponse, p. 17 (emphasis added).) Patent Owner is incorrect.
`
`To support its overly narrow construction, Patent Owner incorrectly argues
`
`that the challenged claims are directed solely to back up and restoration, and, as
`
`such, the information captured as part of state must be sufficient to backup and re-
`
`sume execution of the virtual machine and must include configuration information
`
`and the contents of memory and processor state. (Response, pp. 15-17.) First, as
`
`shown in the previous section, the claims are not limited to backup. Second, the
`
`claims do not require that "all of the state information" be copied to a destination.
`
`To the contrary, the claims recite explicitly that "at least a portion of the captured
`
`state is copied." (’086 patent, claims 1, 12.) Patent Owner’s expert, Dr. Green con-
`
`firmed the fact that enough information may not be copied to allow resuming exe-
`
`cution of the virtual machine, testifying that because claims 1 and 12 require only
`
`"at least a portion" of the state to be copied, the copied portion may not always
`
`permit the virtual machine to resume. (Green Tr., 249:22-251:9.)
`
`3. The claims do not require the virtual machine to be executing dur-
`ing the "capturing" step (i).
`
`Patent Owner incorrectly argues that claims 1 and 12 require the virtual ma-
`
`chine to continue executing (i.e., not be suspended) during the capturing step (i) of
`
`each claim. (Response, p. 12.) Patent Owner’s construction is contrary to the ex-
`
`plicit language of the claims, which does not require the virtual machine to contin-
`
`- 5-
`
`
`
`ue to execute during the capture step (i). Further, the presence of the clause
`
`"wherein suspending the first virtual machine is performed responsive to a suspend
`
`command" in both claims compels only one possible reasonable conclusion - that
`
`the claims cover an embodiment where the virtual machine is suspended during at
`
`least the capture step.
`
`This conclusion is required when dependent claims 10 and 21 are consid-
`
`ered, which recite "wherein (i) comprises suspending the first virtual machine, and
`
`wherein the instructions, when executed, resume the first virtual machine on the
`
`first computer system subsequent to (ii)." Applying the doctrine of claim differen-
`
`tiation, the independent claims must be interpreted broadly enough to encompass
`
`embodiments where the virtual machine is suspended during capture.
`
`Intamin Ltd.
`
`v. Magnetar Techs., Corp., 483 F.3d 1328, 1335 (Fed. Cir. 2007) ("An independent
`
`claim impliedly embraces more subject matter than its narrower dependent claim.")
`
`Finally, challenged claims 11 and 22 explicitly require that the virtual ma-
`
`chine "continue executing during (ii) [i.e. the copying step]." These claims do not
`
`contain a similar limitation that requires the virtual machine to continue executing
`
`during the "capturing" step (i).
`
`Petitioner’s expert, Dr. Shenoy, confirms the correctness of Petitioner’s in-
`
`terpretation that the capture step (i) should not be limited to a continuously execut-
`
`ing virtual machine (i.e., not suspended). Dr. Shenoy explains that to capture the
`
`
`
`state of a virtual machine effectively, the virtual machine must be suspended at
`
`least for a short period of time. (2nd Shenoy Dec., ¶ 10-14 (provided at \TEEAM
`
`1030).)
`
`B. Lim, ESX and GSG anticipate each of the challenged claims.
`
`The Board correctly found a reasonable likelihood exists that each chal-
`
`lenged claim is anticipated by Lim, ESX, and GSG. However, Patent Owner con-
`
`tends that none of the references disclose (1) a backup program; (2) capturing "the
`
`state of a virtual machine;" (3) capturing "the state of a virtual machine" while its
`
`executing; and (4) creating a "new log of uncommitted updates" and a "memory
`
`area" in claims 11 and 22. (See Response, p. 22-41.) Patent Owner adds a further
`
`argument that GSG fails to disclose copying to a separate destination. (See Re-
`
`sponse, pp. 42-44.) Because Patent Owner relies on improper claim constructions,
`
`each argument has no merit.
`
`1. Lim, ESX, and GSG disclose a "backup program."
`
`As discussed above, because the Patent Owner incorrectly argues that the
`
`challenged claims are directed to a "backup program," the Board should reject Pa-
`
`tent Owner’s argument. However, contrary to Patent Owner’s position, each of the
`
`three cited references actually discloses a "backup program."
`
`a) Lim discloses a backup program.
`
`First, Lim effectively discloses a "backup program" that operates in the
`
`same manner as the "backup program" described in the ’086 patent’s specification.
`
`-7-
`
`
`
`The ’086 patent explains that "the backup program . . . may be implemented as
`
`part of the VM kernel." (’086 patent, 14:11-14.) Patent Owner agrees that Lim’s
`
`"VM kernel can checkpoint the state of a virtual machine." (Response, p.
`
`25.) This
`
`checkpointing process captures the virtual machine state, which is then copied to
`
`another storage device. (2nd Shenoy Dec., ¶T 15-18.)
`
`Second, the system of Lim provides a "mechanism for restoring, porting,
`
`replicating and checkpointing computer systems using state extraction." (Lim, Ti-
`
`tie (emphasis added) (provided at VEEAM 1004.) Patent Owner’s expert acknowl-
`
`edged that replicating is a type of backup. (Green Tr., 26:19-21.)
`
`b) Both ESX and GSG disclose a backup program.
`
`Patent Owner argued that neither ESX nor GSG disclose a backup program
`
`separate from the VM Kernel. Patent Owner’s argument is contradicted by an em-
`
`bodiment in the ’086 patent that explains that the backup program 42 "may be im-
`
`plemented as part of the VM kernel." (’086 patent, 14:11-14.) Further, Patent
`
`Owner’s contention that ESX and GSG do not disclose a backup program because
`
`they may "require[] the user to manually perform commands," (Response, p. 23),
`
`is contradicted by the ’086 patent’s statement that "[v]arious operations have been
`
`assigned to the backup program . . . in other embodiments, various ones of these
`
`operations may be performed manually by a user." (’086 patent, 14:7-11.)
`
`
`
`2. Patent Owner’s argument that Lim, ESX, and GSG fail to disclose cap-
`turing "state of a virtual machine" is without merit.
`
`The Board should reject Patent Owner’s argument that Lim, ESX, and GSG
`
`do not disclose capturing "state of a virtual machine." This argument is premised
`
`on Patent Owner’s impermissibly narrow construction that "state" must include
`
`virtual machine configuration information and must also include information suffi-
`
`cient to allow the virtual machine to resume execution on any computer. Petitioner
`
`already has shown this construction is improper.
`
`Patent Owner is wrong for another reason: Lim discloses capturing "state of
`
`a virtual machine," which Lim identifies as "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 (emphasis added).)
`
`Patent Owner recognizes this teaching in Lim, but attempts to distinguish the
`
`reference by arguing that Lim’s "total machine state" does not include "configura-
`
`tion information." (Response, P. 29.) Patent Owner’s position is incorrect. The "to-
`
`tal machine state" of Lim includes configuration information and would allow a
`
`virtual machine to resume execution on any machine. (2nd Shenoy Dec., ¶J 16-17.)
`
`Patent Owner’s expert, Dr. Green, agreed with Petitioner’s statement when testify-
`
`ing at deposition that Lim describes capturing "the type of hardware" as part of its
`
`state, (Green Tr., 284:4-7) and that this information is configuration information of
`
`
`
`the virtual machine (Green Tr., 25 8:20-25.)
`
`Patent Owner also contends that even under the Board’s construction for
`
`"state," the information in redo logs of ESX and GSG does not "permit the virtual
`
`machine to resume execution of the application." (Response, pp. 27-28.) This ar-
`
`gument is plainly wrong because redo logs can contain such information. (2nd
`
`Shenoy Dec., ¶ 26.)
`
`3. Patent Owner’s argument that Lim, ESX, and GSG fail to disclose cap-
`turing "stale" while the virtual machine is executing is without merit.
`
`Patent Owner is wrong that Lim, ESX, and GSG do not disclose capturing
`
`"state of a virtual machine" while the virtual machine is executing. Patent Owner’s
`
`argument is based on its incorrect interpretation of the challenged claims. (Re-
`
`sponse, pp. 33-34.) Patent Owner’s arguments should be rejected because Petition-
`
`er already has shown this construction is improper. But, Patent Owner is wrong for
`
`the additional reason that both ESX and GSG describe capturing state in redo logs
`
`while the virtual machine is executing. (1st Shenoy Dec. ¶ 23-24, 30 (provided at
`
`VEEAM 1002).)
`
`4. Patent Owner’s argument that Lim, ESX and GSG fail to disclose "a new
`log of uncommitted updates" and a "memory area" is without merit.
`
`The Board should hold Patent Owner accountable for its litigation state-
`
`ments and disregard Patent Owner’s contradictory statements belatedly made sole-
`
`ly to overcome prior art references. Dependent claims 11 and 22 recite that a "new
`
`_10-
`
`
`
`log of uncommitted updates" and "a memory area" are created during the capture
`
`step. The creation of a log of uncommitted updates for each virtual disk and a
`
`memory area to capture writes to a memory has been a standard component of vir-
`
`tual machines such as ESX and VMware Workstation since prior to the filing date
`
`of the ’086 patent. (2nd Shenoy Dec., ¶ 25.) A log of uncommitted updates, when
`
`created, is necessarily a "new log of uncommitted updates." (2nd Shenoy Dec., ¶
`
`30.) Patent Owner already has represented these features are common and well-
`
`known when, in the co-pending district court litigation, to support its infringement
`
`contentions, Patent Owner stated that any virtual machine meets this limitation be-
`
`cause "[t]he allocation of memory is a requirement for a running machine." (In-
`
`fring. Contentions, p. 12 (provided at VEEAM 1013).)
`
`a) Lim discloses creation of "a new log of uncommitted updates"
`and a "memory area."
`
`Lim explicitly discloses creating a "new log of uncommitted updates" and a
`
`"memory area" in describing the use of copy-on-write techniques to capture the
`
`contents of memory and disk. (2nd Shenoy Dec., ¶J 19-22.) Patent Owner contends
`
`that Lim does not disclose either of these limitations based on Lim’s description of
`
`copy-on-write techniques as "conventional." (Response, p. 35.) Patent Owner’s
`
`reasoning is legally incorrect because these techniques are disclosed by Lim.
`
`Patent Owner further argues that Lim’ s disclosure of memory areas and logs
`
`of uncommitted updates does not mean that the "virtual machine can continue to
`
`- 11-
`
`
`
`execute during step (ii)" because the claims require that the virtual machines "exe-
`
`cute in an uninterrupted fashion." (Response, p. 41.) However, the plain language
`
`of claims 11 and 22 only requires that the "virtual machine can continue executing
`
`during" the copying step only. That is, the virtual machine does not have to exe-
`
`cute as Patent Owner contends, but instead only needs the ability to execute during
`
`the copying step only. (2nd Shenoy Dec., ¶ 23.) The virtual machine of Lim can
`
`continue executing during the copying step. (2nd Shenoy Dec., ¶ 24.)
`
`b) ESX and GSG disclose creating "a new log of uncommitted up-
`dates" and a "memory area."
`
`Both ESX and GSG explicitly disclose creating a "new log of uncommitted
`
`updates" and a "memory area" so that the virtual machine can execute during the
`
`copying step. (2nd Shenoy Dec., ¶ 25.) Patent Owner contends that the redo logs of
`
`ESX and GSG are not "new" logs because they are (1) not "specifically created to
`
`capture disk updates so that backup can be performed" and are (2) nothing more
`
`than a "conventional COW file." (Response, pp. 34-35, 38-39.) Patent Owner is
`
`incorrect. First, the ESX and GSG redo logs meet the limitations of the challenged
`
`claims. Second, because the claims are not limited to backup, the "log of uncom-
`
`mitted updates" need not be created to perform a backup
`
`(See supra, pp. 2-3.)
`
`In addition, Patent Owner appears to argue that the ’086 patent describes two
`
`types of logs of uncommitted updates. (Response, pp. 34-3 5.) Patent Owner is
`
`wrong, the claims only require one log of uncommitted updates and do not specify
`
`-12-
`
`
`
`the type. (2nd Shenoy Dec., ¶J 28-29.) Further, ESX and GSG disclose "creating a
`
`memory area" using Patent Owner’s own argument that any virtual machine cre-
`
`ates a memory area to capture writes because "[t]he allocation of memory is a re-
`
`quirement for a running machine." (Infring. Contentions, p. 12.)
`
`The Board’s Decision correctly recognized that ESX describes a tool re-
`
`ferred to as "vmkfstools" that permits the copying of state in the form of redo logs.
`
`(Board Decision, pp. 13-14.) Patent Owner contends that vmkfstools does not al-
`
`low the copying of state while the virtual machine is executing. (Response,
`
`p. 37.)
`
`Patent Owner is wrong because it cites to documentation from a different version
`
`of vmkfstools. (Response, p. 37; see also Green Dec., ¶J 77-85 (provided at Sy -
`
`mantec 2016); 2nd. Shenoy Dec., ¶ 31.) Second, even if vmkfstools requires the
`
`virtual machine not to be executing, ESX describes an additional copying step of
`
`transporting the redo logs to a remote destination, which can happen at any time,
`
`including when the virtual machine is executing. (2nd. Shenoy Dec., ¶ 32; 1st
`
`Shenoy Dec., ¶ 27; ESX, p. 106 (provided at VEEAM 1005).)
`
`5. Patent Owner’s argument that GSG fails to disclose "copying" is with-
`out merit.
`
`Patent Owner incorrectly argues that GSG does not disclose "copy[ing] at
`
`least a portion of the state to a separate destination" from which the virtual ma-
`
`chine is suspendable. (Response, pp. 42-44.) First, GSG describes that the virtual
`
`machine can be suspended to memory, which is a separate device from a disk that
`
`- 13-
`
`
`
`stores the redo logs. (GSG, p. 3-25.) Second, GSG discloses the capturing and
`
`copying as two separate steps. (2nd Shenoy Dec., ¶J 33-35.) GSG teaches that data
`
`must first be captured (i.e. placed in computer memory), and then transferred to the
`
`disk. (Id.)
`
`C. Suzaki alone or in combination renders claims 1, 11, 12 and 22 un-
`patentable.
`
`Patent Owner repeats its same erroneous arguments, arguing that Suzaki
`
`does not disclose a "backup program" or capturing state while the VM is execut-
`
`ing. First, Patent Owner’s continues to argue improper claim constructions. Se-
`
`cond, Suzaki directly contradicts Patent Owner’s argument because Suzaki dis-
`
`closes a backup program in the form of its "checkpoint function" that "makes it
`
`possible to take a snapshot of the state information without stopping the virtual
`
`computer." (Suzaki, p. 5 (emphasis added) (provided at VEEAM 1007); see also
`
`2nd Shenoy Dec., ¶ 37.) Patent Owner also argues that Suzaki does not capture
`
`state at a single point-in-time because it captures state on an application-by-
`
`application basis. (Response, pp. 47-48.) Patent Owner incorrectly assumes that
`
`Suzaki and the challenged claims require multiple applications. This is not the
`
`case. As acknowledged by Dr. Green, Suzaki can run only one application, and the
`
`claims only require at least one application. (Green Tr., 285:15-286:10.) When on-
`
`ly one application is executing in Suzaki, Suzaki captures state at single point-in-
`
`time, rendering Patent Owner’s argument moot. (2nd Shenoy Dec., ¶ 38.)
`
`-14-
`
`
`
`Patent Owner also argues that a person having ordinary skill in the art would
`
`not have combined Suzaki with Wang because Suzaki discloses enough implemen-
`
`tation details about its checkpointing mechanism that a person of ordinary skill in
`
`the art would not seek out Wang. (Response, p. 53.) The Supreme Court explicitly
`rejected Patent Owner’s suggested "rigid approach" in KSR. See KSR mt ’1 v. Tele-
`
`flex, 550 U.S. 398 (2007). Indeed, one of skill would combine these references
`
`because Suzaki and Wang both describes checkpointing and are concerned with the
`
`"consistency and recoverability of data." (1st Shenoy Dec., ¶ 37.) Incorporating
`
`Wang’s checkpoints for Suzaki’s checkpoints is nothing more than a "simple sub-
`
`stitution of one known element for another" with predictable results because each
`
`reference describes checkpointing a running application. KSR, 550 U.S. at 417;
`
`(see also 1st Shenoy Dec., ¶ 37.)
`
`D. Conclusion
`
`In view of the above, Petitioner respectfully requests that the Board issue a
`
`final decision invalidating claims 1, 11, 12, and 22 over the cited art. Petitioner
`
`does not acquiesce to any arguments raised by Patent Owner that are not addressed
`
`herein.
`
`Date: (cid:9)
`
`2’
`
`1100 New York Avenue, N. W.
`Washington, D.C. 20005-3934
`(202) 371-260
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & Fox P.L.L.C.
`
`LoA. Gordon
`Attorney for Petitioner
`
`- 15-
`
`
`
`UPDATED EXHIBIT LIST
`
`DESCRIPTION
`
`Veeam Software
`Corporation
`
`1001
`
`1002
`1003
`1004
`1005
`1006
`1007
`
`1008
`
`1009
`
`1010
`
`1011
`1012
`
`1013
`1014
`1015
`1016
`1017
`
`1018
`1019
`1020
`1021
`
`U.S. Patent No. 7,093,086
`Declaration of Dr. Prashant Shenoy
`Curriculum Vitae of Dr. Prashant Shenoy
`U.S. Patent No. 6,795,966 to Lim
`VMware ESX Server: User Manual
`Getting Started Guide: VMware 2.0 for Linux
`"Checkpoint for Network Transferable Computer" by Suzuki
`English Translation of "Checkpoint for Network Transferable
`Computer" by Suzaki
`Certification that the English Translation of "Checkpoint for
`Network Transferable Computer" by Suzaki is true and accu-
`rate
`"Integrating Checkpointing with Transaction Processing" by
`Wang
`U.S. Patent No. 6,917,963 to Hipp ("Hipp")
`WebArchive Capture from VMware web site dated June 23,
`2001
`Symantec’s Infringement Contentions, Exhibit C.
`PO’s Objections to Petitioner’s Evidence
`Email and CoS for Supplemental Evidence
`PO’s Objection to Supplemental Evidence
`Service Email and Replacement Block Declaration
`Exhibit A to Block Declaration
`Exhibit B to Block Declaration
`
`Directory of Exhibit F to Block Declaration
`
`Butler Affidavit of August 26, 2013
`
`
`
`Veeam Software
`Corporation
`
`1022
`1023
`
`1024
`1025
`1026
`1027
`1028
`1029
`_______________
`1030
`
`1031
`
`DESCRIPTION
`
`Butler Affidavit of July 15, 2013
`VMware Products Webpage
`VMware Desktop Products Webpage
`VMware Server Products Webpage
`Deposition Transcript of Dr. Green
`Symantec’s Opening Claim Construction Brief
`Symantec’s Substitute Exhibit C to Green Dec.
`"Low-Latency, Concurrent Checkpointing for Parallel Pro-
`grams" by Li et al.
`Declaration of Dr. Prashant Shenoy in Support of Petitioner’s
`Reply
`Declaration of Dr. Prashant Shenoy in Support of Petitioner’s
`Opposition to the Motion to Amend
`
`
`
`CERTIFICATION OF SERVICE
`
`The undersigned hereby certifies that on this 24th day of February, 2014,
`
`"Veeam’s Response to Patent Owner’s Response" and exhibits 1026-1031were
`
`served electronically via e-mail upon the following counsel for Patent Owner, Sy
`
`-
`
`mantec, Inc.:
`
`Joseph J. Richetti, Reg. No.
`47,024
`BRYAN CAVE LLP
`1290 Avenue of the Americas
`New York, NY 10104
`joe.richetti@bryancave.com
`
`Daniel Crowe, Reg. No. 39,644
`BRYAN CAVE LLP
`One Metropolitan Square
`211 North Broadway, Suite
`3600
`St. Louis, MO 63102-2750
`dacrowe@bryancave.com
`
`STERNE, KESSLER, GOLDSTEIN & Fox P.L.L.C.
`
`. Gordon
`Li-
`Attorney for Petitioner
`Registration No. 50,633
`
`Date: February 24, 2014
`1100 New York Avenue, N. W.
`Washington, D.C.20005-3 934
`(202) 371-2600
`
`
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