Filed on behalf of Symantec Corporation
`
`Case IPR 2013-00150
`U.S. Patent No. 7,093,086
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`VEEAM SOFTWARE CORPORATION
`Petitioner
`
`v.
`
`SYMANTEC CORPORATION
`Patent Owner
`
`Case IPR2013-00150
`U.S. Patent No. 7,093,086
`
`PATENT OWNER’S MOTION FOR OBSERVATIONS ON CROSS
`EXAMINATION OF DR. PRASHANT SHENOY
`
`
`
`Case IPR 2013-00150
`U.S. Patent No. 7,093,086
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`VEEAM SOFTWARE CORPORATION
`Petitioner
`
`v.
`
`SYMANTEC CORPORATION
`Patent Owner
`
`Case IPR2013-00150
`U.S. Patent No. 7,093,086
`
`PATENT OWNER’S MOTION FOR OBSERVATIONS ON CROSS
`EXAMINATION OF DR. PRASHANT SHENOY
`
`
`
`Case IPR 2013-00150
`U.S. Patent No. 7,093,086
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`III.
`
`IV.
`
`THE ‘086 PATENT CLAIMS.........................................................................1
`
`LIM ..................................................................................................................2
`
`ESX..................................................................................................................3
`
`SUZAKI...........................................................................................................5
`
`i
`
`
`
`Symantec
`Exhibit No.
`Symantec 2001
`Symantec 2002
`Symantec 2003
`Symantec 2004
`Symantec 2005
`
`Symantec 2006
`
`Symantec 2007
`Symantec 2008
`
`Symantec 2009
`
`Symantec 2010
`
`Symantec 2011
`
`Symantec 2012
`
`Symantec 2013
`
`Symantec 2014
`
`Case IPR 2013-00150
`U.S. Patent No. 7,093,086
`
`LIST OF EXHIBITS
`
`Document Description
`Office Action, dated April 11, 2005
`Appeal Brief, dated July 19, 2005
`Response to Office Action, dated November 14, 2005
`Supplemental Notice of Allowability, dated July 6, 2016
`Symantec Corp. v. Veeam Software Corp., Civil Action No.
`3:12cv700 (Dkt. 105), Claim Construction Order, dated
`March 8, 2013
`Patent Owner’s Objections to Petitioner’s Evidence Pursuant
`to 37 C.F.R. § 42.64(b)(1)
`Declaration of Daniel Block, dated September 5, 2013
`Patent Owner’s Objections to Petitioner’s Supplemental
`Evidence Pursuant to 37 C.F.R. § 42.64(b)(1)
`Email requesting permission to file motion to amend, dated
`October 21, 2013
`Internet Archive webpage titled “Download VMware
`Products” captured from VMware website, dated June 23,
`2001
`Internet Archive webpage titled “Download VMware
`Products” captured from VMware website, dated June 23,
`2001
`Internet Archive webpage titled “VMware Server Products
`Ordering Information” captured from VMware website, dated
`October 7, 2001
`Internet Archive webpage titled “Evaluate VMware ESX
`Servicer” captured from VMware website, dated June 8, 2001
`Garmin Int’l, Inc. et al. v. Cuozzo Speed Tech. LLC, IPR2012-
`00001, No. 26 (Mar. 5, 2013), Decision
`
`ii
`
`
`
`Symantec
`Exhibit No.
`Symantec 2015
`
`Symantec 2016
`
`Symantec 2017
`Symantec 2018
`
`Symantec 2019
`Symantec 2020
`
`Symantec 2021
`Symantec 2022
`Symantec 2023
`
`Symantec 2024
`
`Symantec 2025
`
`Symantec 2026
`Symantec 2027
`
`Symantec 2028
`
`Case IPR 2013-00150
`U.S. Patent No. 7,093,086
`
`Document Description
`Declaration of Matthew D. Green in Support of Patent
`Owner’s Motion to Amend
`Declaration of Matthew D. Green in Support of Patent
`Owner’s Response
`Cross-Examination Testimony of Prashant Shenoy
`Non-Provisional Patent Application Serial No. 10/109,186
`accorded a filing date of March 28, 2002 (original ‘086
`specification)
`(Expunged)
`Deposition Transcript of Prashant Shenoy, March 7, 2014
`(Shenoy 2nd Dep.)
`Suzaki, U.S. Patent 7,240,239
`CP Command Reference for general Users (“VM Dump”)
`Linux on IBM eserver zSeries and S/390: ISP/ASP Solutions
`(“Linux on IBM”)
`Preemptable Remote Execution Facilities for the V-System
`(“Theimer”)
`CM BrightStor VM:Backup Operator’s Guide (“CM
`BrightStor”)
`Patent Owner’s Objections to Evidence, March 2, 3013
`Deposition Transcript of Dr. Green, March 28, 2014
`
`Currently Filed
`Declaration of Matthew D. Green in Support of Patent
`Owner’s Reply to Petitioner’s Opposition (Green Rep.)
`
`iii
`
`
`
`Case IPR 2013-00150
`U.S. Patent No. 7,093,086
`
`TABLE OF ABBREVIATIONS
`
`Abbreviation
`Reply
`
`Shenoy Reply Dec.
`
`Description
`Petitioner’s Reply to Patent Owner’s Response (Paper No.
`33)
`Declaration of Dr. Shenoy in Support of Petitioner’s Reply
`(Veeam 1030)
`
`PO Resp.
`
`Patent Owner Response to Petition (Paper No. 28)
`
`Green Resp. Dec.
`
`Declaration of Matthew D. Green in Support of Patent
`Owner’s Response (Symantec 2016)
`
`iv
`
`
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`Case IPR 2013-00150
`U.S. Patent No. 7,093,086
`
`Patent Owner respectfully makes the following observations regarding the
`
`March 7, 2014 cross-examination testimony of Petitioner’s Reply declarant, Dr.
`
`Prashant Shenoy (Exhibit 2020):
`
`I.
`
`THE ‘086 PATENT CLAIMS
`
`1.
`
`In Dr. Shenoy’s deposition transcript, on p. 54, l. 10 – p. 55, l. 3, Dr.
`
`Shenoy testified, with respect to the ‘086 Patent claims, that “[i]f the state included
`
`at least one disk file and you wanted to capture that disk file… the capturing step
`
`may not require you to interrupt the processor always.” This testimony is relevant
`
`because for at least the Board’s construction of a state of virtual machine it
`
`contradicts Petitioner’s assertion that “to capture the state of a virtual machine
`
`effectively, the virtual machine must be suspended at least for a short period of
`
`time.” Reply, p. 5-6; Shenoy Reply Dec., ¶¶ 10-14.
`
`2.
`
`In Dr. Shenoy’s deposition transcript, on p. 84, l. 14 – p. 93, l. 6, Dr.
`
`Shenoy testified that the term ‘new log of uncommitted updates’ of claim 11 can
`
`cover the new COW file 74A and original COW file 74 in the specification of the
`
`‘086 Patent. Dr. Shenoy also acknowledges that claim 11 recites a ‘new log of
`
`uncommitted updates. Yet, Dr. Shenoy testified on p. 82, ll. 6-25 and p. 84, ll. 8-
`
`13 that the term ‘log of uncommitted updates’ of claim 9 covers the same COW
`
`files as the term ‘new log of uncommitted updates.’ This testimony undermines
`
`the statements in paragraphs 28 and 29 of the Shenoy Reply Dec. and supports
`
`
`
`Case IPR 2013-00150
`U.S. Patent No. 7,093,086
`
`Patent Owner’s argument that the prior art does not disclose the “new log of
`
`uncommitted updates” in claims 11 and 22. This testimony further supports Patent
`
`Owner’s position that what the “Petitioner and its expert refer to as allegedly
`
`meeting this ‘new log of uncommitted updates’ in claims 11 and 22 is therefore
`
`nothing more than a conventional COW file” disclosed in the ‘086 Patent. PO
`
`Resp., pp. 34-41; Green Resp. Dec., ¶¶ 73, 102-03.
`
`II.
`
`LIM
`
`3.
`
`In Dr. Shenoy’s deposition transcript, on p. 39, ll. 19-25, Dr. Shenoy
`
`testified that Lim discloses “two embodiments. In both cases, you need to interrupt
`
`the virtual processor.” This testimony is relevant because it supports Patent
`
`Owner’s argument that “Lim does not allow the virtual machine to continue
`
`executing when its alleged state is captured.” PO Resp., pp. 33-34; Green Resp.
`
`Dec., ¶¶ 108-115.
`
`4.
`
`In Dr. Shenoy’s deposition transcript, on p. 58, l. 19 – p. 61, l. 16,
`
`when asked about his statement in his declaration pertaining to the copying of state
`
`information during execution in the Lim reference, Dr. Shenoy testified that “Lim
`
`doesn’t say what happens after you store the state vector” and “Lim is silent on
`
`what is happening when the virtual machine state is being transferred.”
`
`Additionally, Dr. Shenoy testified that his “opinion is, basically, saying that, for
`
`someone skilled in the art, it would be understood that…. you could have resumed
`
`2
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`Case IPR 2013-00150
`U.S. Patent No. 7,093,086
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`the execution of the virtual machine and then you can make the copy while that’s
`
`happening.” See Shenoy Reply Dec., ¶ 24. This testimony is relevant to Patent
`
`Owner’s position that Lim does not disclose that the virtual machine continues to
`
`execute “during both capture and copy steps” and supports its position that Lim
`
`does not anticipate under 35 § U.S.C. 102. PO Resp., p. 41; Green Resp. Dec., ¶¶
`
`110-115.
`
`5.
`
`In Dr. Shenoy’s deposition transcript, on p. 47, l. 17 – p. 49, l. 5, when
`
`asked about the portions in Lim which Dr. Shenoy refers to in his declaration as
`
`providing the basis for his opinion that Lim discloses the claimed memory area,
`
`Dr. Shenoy testified “that paragraph in Column 19 talks about a more efficient way
`
`of capturing the state vectors so that the total storage space needed to store them is
`
`reduced.” See Shenoy Reply Dec., ¶ 22. This testimony is relevant to Patent
`
`Owner’s argument that Lim does not disclose the claimed memory area, and
`
`supports its position that “Lim (like ESX and GSG) discloses, at best, conventional
`
`COW files and memories” and not the structures that enable the virtual machine to
`
`continue executing as required by claims 11 and 22. PO Resp., pp. 40-41.
`
`III. ESX
`
`6.
`
`In Dr. Shenoy’s deposition transcript, on p. 93, l. 7 – p. 94, l. 24, when
`
`asked about the ESX reference’s explicit disclosure of the creation of a new log so
`
`that the virtual machine can capture state while executing, Dr. Shenoy testified that
`
`3
`
`
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`Case IPR 2013-00150
`U.S. Patent No. 7,093,086
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`while the term “new log of uncommitted updates” does not appear in the reference,
`
`his experience is that such a log might be created during operation of an ESX
`
`server “product.” Additionally, Dr. Shenoy testified on p. 68, l. 18 - p. 70, l. 18
`
`that the ESX reference “is a product manual for the ESX server,” and that his
`
`understanding is based on the ESX and other virtual machine “products.” See
`
`Shenoy Reply Dec., ¶¶ 27-30. This testimony is relevant to Patent Owner’s
`
`position that the ESX reference does not disclose the newly created structure set
`
`forth in claims 11 and 22, and supports its position that the ESX reference does not
`
`anticipate under 35 § U.S.C. 102. PO Resp., pp. 36-37; Green Resp. Dec., ¶ 73.
`
`7.
`
`In Dr. Shenoy’s deposition transcript, on p. 96, l. 21 – p. 98, l. 13, in
`
`discussing ESX, Dr. Shenoy testified that “later versions of the vmkfstools do
`
`require the virtual machine to be suspended or stopped because there are file
`
`lo[cks] associated with the disk state,” and that “locks, in general, are used for
`
`what is referred to as synchronization of mutual exclusion so that only one entity
`
`has access to a data structure or a data or an object for reasons of consistency.” Dr.
`
`Shenoy also testified on p. 98, l. 14 – p. 105, l. 17 that he did not search for or
`
`compare the disclosures of the vmkfstools technotes and the user manual for the
`
`corresponding ESX version. This testimony is relevant because, as a whole, it
`
`undermines Dr. Shenoy’s statement that because the “newer version explicitly
`
`describes the vmkfstools utility as not being able to copy while the virtual machine
`
`4
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`Case IPR 2013-00150
`U.S. Patent No. 7,093,086
`
`is executing, but the ESX 1.0 version does not, leads one to conclude that
`
`vmkfstools under ESX 1.0 could copy while the virtual machine is executing, not
`
`the opposite.” See Shenoy Reply Dec., ¶ 31. This testimony is also relevant
`
`because it supports Patent Owner’s argument and Dr. Green’s testimony that
`
`“vmfkstools requires stopping the execution of and shutting down, the virtual
`
`machine in order to perform the alleged copying of the redo log” and that file locks
`
`prevent vmkfstools from copying the .REDO log while the virtual machine is
`
`executing. PO Resp., pp. 37-38; Green Resp. Dec., ¶ 81.
`
`IV.
`
`SUZAKI
`
`8.
`
`In Dr. Shenoy’s deposition transcript, on p. 118, l. 4 – p. 121, l. 7, Dr.
`
`Shenoy testified that the SWSUSP process in Suzaki may use bd_flush as part of
`
`the checkpointing embodiment described in Section 3 of that reference. More
`
`specifically, at p. 120, ll. 12-22, when asked as to whether bd_flush “might also be
`
`relevant to the checkpoint embodiment in Section 3,” Dr. Shenoy stated that “you
`
`could use bdflush as an example of how checkpointing is done.” This testimony is
`
`relevant because it contradicts Dr. Shenoy’s statement that “the ‘bdflush’ process
`
`referenced by Dr. Green is only applicable to the hibernation embodiment
`
`described in Suzaki Section 2.2, not the checkpoint embodiment in Section 3.
`
`Shenoy Reply Dec., ¶ 37. This testimony is also relevant because it supports Patent
`
`Owner’s argument that “Suzaki teaches, at best, that the states of different
`
`5
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`Case IPR 2013-00150
`U.S. Patent No. 7,093,086
`
`applications or processes can be captured at different points in time” and Patent
`
`Owner’s position and Dr. Green’s opinion that the “process described by Suzaki
`
`results in a progressive capture of the Virtual Machine over a spectrum of time”
`
`and that “Suzaki appears to gradually suspend individual applications and then
`
`subsequently the operating system itself.” PO Resp., pp. 48, 50-51; Green Resp.
`
`Dec., ¶¶ 125-27.
`
`Date: April 14, 2014
`
`Respectfully submitted,
`
`By: /Joseph J. Richetti, Reg. No. 47024/
`Joseph J. Richetti, Reg. No. 47,024
`BRYAN CAVE LLP
`1290 Avenue of the Americas
`New York, NY 10104
`General Tel: (212) 541-2000
`Direct Tel: (212) 541-1092
`Fax: (212) 541-4630
`Email: joe.richetti@bryancave.com
`
`Attorneys for Patent Owner – Symantec
`Corporation
`
`6
`
`
`
`Case IPR 2013-00150
`U.S. Patent No. 7,093,086
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that the foregoing PATENT OWNER’S
`
`MOTION FOR OBSERVATIONS ON CROSS EXAMINATION OF DR.
`
`PRASHANT SHENOY, was served electronically via e-mail on April 14, 2014, in
`
`its entirety on the following:
`
`Lori A. Gordon
`STERNE, KESSLER, GOLDSTEIN
`& FOX P.L.L.C
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3932
`lgordon-PTAB@skgf.com
`
`Michael Q. Lee
`STERNE, KESSLER, GOLDSTEIN
`& FOX P.L.L.C
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3932
`mlee-PTAB@skgf.com
`
`Respectfully submitted,
`
`By: /Joseph J. Richetti, Reg. No. 47024/
`Joseph J. Richetti
`Lead Attorney for Patent Owner
`Reg. No. 47,024
`BRYAN CAVE LLP
`1290 Avenue of the Americas
`New York, NY 10104
`General Tel: (212) 541-2000
`Direct Tel: (212) 541-1092
`Fax: (212) 541-4630
`Email: joe.richetti@bryancave.com
`
`Attorneys for Patent Owner – Symantec
`Corporation
`
`Date: April 14, 2014
`
`
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