Filed on behalf of Veeam Software Corporation
`Lori A. Gordon
`By: (cid:9)
`Michael Q. Lee
`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
`
`Case 1PR2013-00150
`Patent 7,093,086
`
`VEEAM’S OBSERVATIONS ON CROSS EXAMINATION OF
`SYMANTEC’S REPLY WITNESS DR. GREEN
`
`
`Lori A. Gordon
`By: (cid:9)
`Michael Q. Lee
`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
`
`Case 1PR2013-00150
`Patent 7,093,086
`
`VEEAM’S OBSERVATIONS ON CROSS EXAMINATION OF
`SYMANTEC’S REPLY WITNESS DR. GREEN
`
`
`
`Petitioner Veeam Software Corporation hereby submits observations on the
`
`cross-examination of Dr. Matthew Green, whose Supplemental Declaration
`
`(Symantec 2019) was submitted by Patent Owner with the Reply to the Opposition
`
`to the Motion to Amend, filed March 17, 2014, (Paper No. 35) and whose cross-
`
`examination was conducted by deposition on March 28, 2014. Exhibit Veeam 1032
`
`is a transcript of that deposition, and is used as the basis for the observations
`
`below. Petitioner notes that the Board expunged Symantec 2019 and provided the
`
`Patent Owner with an opportunity to revise the Declaration and resubmit. Because
`
`the date to resubmit is concurrent with the due date of this motion, Petitioner’s
`
`observations refer to the originally filed Symantec 2019. Petitioner plans to seek
`
`authorization to update the declaration citations if Patent Owner submits a
`
`replacement declaration.
`
`1. In Exhibit 1032, on page 36, lines 11 to page 37, line 10, the witness
`
`testified that paragraph 54 of his Declaration in Support of Patent Owner’s
`
`Motions to Amend ("First Motion to Amend Declaration"), specifically the cites to
`
`4:53-6 1 and 6:40-61 of the ’086 patent, provides written description support for the
`
`subject matter of claim 31. Exhibit 1032 on page 37, line 11 to page 40, line 1
`
`confirms that this portion of the ’086 Patent describes capturing state while the
`
`virtual machine is suspended. This testimony is relevant because it contradicts the
`
`witness’s testimony in his Supplemental Declaration that because Lim "requires
`
`-1-
`
`
`
`that the virtual machine execution be interrupted prior to capturing the state, and
`
`only when the state has been captured does the virtual machine resume," Lim does
`
`not render claim 31 unpatentable. (Ex. 2019, ¶28.) In addition, the testimony is
`
`relevant because it further contradicts the witness’s testimony in his Supplemental
`
`Declaration that claim 31 is limited to the embodiment of Figure 6 of the patent.
`
`(Ex. 2019, ¶ 29-30.) If claim 31 must capture state while the virtual machine is
`
`executing as argued by the witness, claim 31 cannot be supported by subject matter
`
`recited in 4:53-61 and 6:40-61 of the ’086 patent describing capturing state while
`
`the virtual machine is suspended.
`
`2. In Exhibit 1032, on page 41, lines 2-21, the witness testified that programs
`
`that permitted backups of certain portions of the virtual machine’s state existed
`
`prior to the March 28, 2002 filing date. This testimony is relevant because the
`
`witness has testified that he has "not identified any art that anticipates or renders
`
`obvious claim 311. (Ex. 2019, ¶31.) However, nowhere does Patent Owner or the
`
`witness explain why substitute claim 31 would not have been obvious to a person
`
`of ordinary skill in the art given the teachings of known backup programs alone or
`
`combined with other references known to the Patent Owner.
`
`Substitute claim 31 amends the preamble of claim 1 by adding a "backup
`
`program" that "interfaces with a separately executing virtual machine kernel."
`
`-2-
`
`
`
`3. In Exhibit 1032, at page 83, line 4 to page 84, line 4, the witness testified
`
`that creating an interface to a virtual machine (VM) kernel would also have been
`
`well-known to those having ordinary skill in the art. This testimony is relevant
`
`because the witness also testified that he had "not identified any art that anticipates
`
`or renders obvious claim 31" and which recites "a backup program" that
`
`"interfaces with a separately executing virtual machine kernel." (Ex. 2019, ¶31.)
`
`However, nowhere does Patent Owner or the witness explain why substitute claim
`
`31 would not have been obvious to a person of ordinary skill in the art given the
`
`witness’s testimony that creating an interface for use with the VM kernel and
`
`backup programs for virtual machines were well-known to those having ordinary
`
`skill in the art.
`
`4. In Exhibit 1032, on page 52, line 22 to page 53, line 6 and page 54, line
`
`15 to page 55, line 6, the witness testified that he could not identify any explicit
`
`support for capturing "configuration settings" in the ’086 patent. This testimony is
`
`relevant because it contradicts the witness’s testimony in his First Motion to
`
`Amend Declaration, which states that "copying the machine state" must include
`
`"transferring configuration files." (Ex. 2015, ¶J 149-150.) Further, this testimony is
`
`relevant because each of the substitute claims include a step of "copying at least a
`
`portion of the state," but Dr. Green could not identify any explicit description
`
`-3-
`
`
`
`within the ’086 patent that described copying "configuration files" or
`
`"configuration settings."
`
`5. In Exhibit 1032, on page 70, lines 3-12, the witness testified that Lim’s
`
`GUI comprises a series of instructions that initiates checkpoints. Further, in Exhibit
`
`1032, on page 85, lines 9-22 and on page 90, lines 6-21, the witness testified that
`
`Lim can be interpreted such that in one embodiment when a checkpoint is initiated,
`
`the state vectors are transmitted to a second virtual machine. This testimony is
`
`relevant because it contradicts the witness’s testimony in his Supplemental
`
`Declaration, which states that Lim does not describe "that the GUI is used to
`
`transfer the state vector to a remote virtual machine." (Ex. 2019, ¶ 27.) The
`
`witness now testifies that under at least one interpretation, Lim describes
`
`transferring state as part of the checkpointing process, which can be initiated by the
`
`GUI.
`
`6. In Exhibit 1032, on page 112, line 1 to page 113, line 18, the witness
`
`testified that his interpretation of substitute claim 33 does not include claim 21’s
`
`requirement that the virtual machine is suspended during the capturing step. This
`
`testimony is relevant because it contradicts the witness’s testimony in his
`
`Supplemental Declaration, which states that the substitute claims require that "the
`
`state of the virtual machine can be captured . . . without suspending the virtual
`
`-4-
`
`
`
`machine or interrupting it for non-standard operations and durations." (Ex. 2019, ¶
`
`17.) If claim 21 requires the virtual machine be suspended during capture, then
`
`substitute claim 33 must too include the capability to be suspended during capture.
`
`Further, this testimony is relevant because it shows the witness’s fundamental
`
`misunderstanding of how claims are interpreted.
`
`7. In Exhibit 1032, on page 142, line 16 to page 143, line 4, the witness
`
`testified that he was "confused" by whether the rejection of claim 32 was an
`
`obviousness or anticipation rejection. This testimony is relevant because it
`
`undermines the witness’s testimony in his Supplemental Declaration, which states
`
`"Petitioner and Dr. Shenoy argue that Claim 32 is anticipated by the prior art,
`
`Lim." (Ex. 2019, ¶ 78.) In addition, this testimony is relevant because it shows that
`
`the witness, by his own admission, did not have a proper understanding of the
`
`differences between anticipation and obviousness, and thus could not have
`
`rendered a proper opinion with respect to the patentability of claim 32.
`
`2 Veeam proposed a rejection of claim 32 under 35 U.S.C. 103(a) as being
`
`rendered obvious over Lim in view of Li in its Opposition to the Motion to Amend
`
`(Paper No. 32., p. 9.)
`
`-5-
`
`
`
`Respectfully submitted,
`
`STERNE, KESSLER, GOLDSTEIN & Fox P.L.L.C.
`
`J 6ork
`
`Registration No. 50,633
`Attorney for Petitioner
`
`Date: April 14, 2014
`
`1100 New York Avenue, N. W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`
`
`Case 1PR2013-00 150
`U.S. Patent No. 7,093,086
`
`UPDATED EXHIBIT LIST
`
`DESCRIPTION
`
`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
`accurate
`"Integrating Checkpointing with Transaction Processing" by
`Wang
`U.S. Patent No. 6,917,963 to Hipp ("Hipp")
`WebArchive Capture from VMware website 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
`
`1001
`1002
`1003
`1004
`
`1005
`1006
`1007
`1008
`
`1009
`
`1010
`
`1011
`1012
`
`1013
`1014
`
`1015
`1016
`1017
`1018
`1019
`1020
`1021
`
`
`
`Veeam Software
`Corporation
`
`DESCRIPTION
`
`Case 1PR2013-00150
`U.S. Patent No. 7,093,086
`
`1022
`1023
`1024
`1025
`1026
`1027
`1028
`1029
`
`1030
`
`1031
`
`1032
`
`Butler Affidavit of July 15, 2013
`VMware Products Webpage
`VMware Desktop Products Webpage
`VMware Server Products Webpage
`Deposition Transcript of Dr. Green (2/14/2014)
`Symantec’s Opening Claim Construction Brief
`Symantec’s Substitute Exhibit C to Green Dec.
`Concurrent (cid:9) Checkpointing (cid:9)
`"Low-Latency, (cid:9)
`Programs" 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
`Deposition Transcript of Dr. Green (3/28/2014)
`
`Parallel
`
`for (cid:9)
`
`
`
`Case 1PR2013-00150
`U.S. Patent No. 7,093,086
`
`CERTIFICATION OF SERVICE
`
`The undersigned hereby certifies that on this 14th day of April, 2014, "Veeam’s
`
`Observations on Cross Examination of Symantec’s Reply Witness Dr. Green" was served
`
`electronically via e-mail upon the following counsel for Patent Owner, Symantec, 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.
`
`Date: April 14, 2014
`
`1100 New York Avenue, N.W.
`Washington, D.C.20005-3934
`(202) 371-2600
`
`Lori A. Gordon
`Attorney for Petitioner
`Registration No. 50,633
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