Filed on behalf of Veeam Software Corporation
`By:
`Lori A. Gordon
`
`Michael Q. Lee
`
`Sterne, Kessler, Goldstein & Fox PLLC
`
`1100 New York Avenue, NW
`
`
`Washington, D.C.
`
`
`Tel: (202) 371-2600
`
`Fax: (202) 371-2540
`
`
`
`
`
`
`
`IN THE 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
`Patent 7,093,086
`_____________________
`
`
`
`
`VEEAM’S RESPONSE TO SYMANTEC’S MOTION FOR
`OBSERVATIONS ON CROSS-EXAMINATION
`
`
`
`
`
`
`
`
`
`By:
`Lori A. Gordon
`
`Michael Q. Lee
`
`Sterne, Kessler, Goldstein & Fox PLLC
`
`1100 New York Avenue, NW
`
`
`Washington, D.C.
`
`
`Tel: (202) 371-2600
`
`Fax: (202) 371-2540
`
`
`
`
`
`
`
`IN THE 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
`Patent 7,093,086
`_____________________
`
`
`
`
`VEEAM’S RESPONSE TO SYMANTEC’S MOTION FOR
`OBSERVATIONS ON CROSS-EXAMINATION
`
`
`
`
`
`
`
`
`
`
`IPR2013-00150
`Patent 7,093,086
`
`
`Symantec, in its Motion for Observations for Cross-Examination, lists eight
`
`observations, many of which mischaracterize Dr. Shenoy’s testimony, as well as
`
`the positions advanced by Veeam in this proceeding. Further, regardless of the
`
`mischaracterizations, much of the testimony cited by Symantec is entirely
`
`irrelevant to the conclusions advanced by Symantec.
`
`I. The ’086 Patent Claims
`
`1. In paragraph 1, Symantec argues that Dr. Shenoy’s testimony contradicts
`
`Veeam’s assertion that “to capture the state of the virtual machine effectively, the
`
`virtual machine must be suspended at least for a short period of time” because Dr.
`
`Shenoy testified on cross-examination that “the capturing step may not require you
`
`to interrupt the processor always.” (Paper No. 44, p. 1.) Symantec, however,
`
`overlooks that Dr. Shenoy’s testimony on cross-examination was limited to: “[i]f
`
`you believe state only is required to be one file in the claims of the 086 patent.”
`
`(Ex. 2020, 54:10-14.) Yet, in the very same paragraphs in Dr. Shenoy’s declaration
`
`that Symantec cites to as contradictory, Dr. Shenoy explains that his opinion that
`
`“the virtual machine [] must be suspended to capture state, at least temporarily” is
`
`for a different case: “if the Board were to adopt” Symantec’s position that “state
`
`must include both contents of memory, hardware state . . . and configuration
`
`settings” (Ex. 1030, ¶ 10.)
`
`2. In paragraph 2, Symantec argues that Dr. Shenoy’s testimony that the
`
`
`
`
`- 1 -
`
`
`
`IPR2013-00150
`Patent 7,093,086
`“log of uncommitted updates” of claim 9 and the “new log of uncommitted
`
`updates” of claims 11 and 22 could “cover” either “COW file 74A” or “COW file
`
`74” is contradictory because of supposed differences between a “new log” and a
`
`“log”. (Paper No. 44, p. 1.) But, Symantec is wrong. Dr. Shenoy in the cited
`
`testimony by Symantec explains that “new” refers to when the COW file is first
`
`created, and either COW file can be considered “new” at different times: “[w]hen
`
`the virtual disk was, perhaps, created for the first time, that could also be a new log
`
`of uncommitted updates. What Claim 11 hasn't said is when the new log of
`
`uncommitted updates was created. It simply says it's new.” (Ex. 2020, 85:25-
`
`86:6.).
`
`II. LIM
`
`3. In paragraph 3, Symantec argues that Dr. Shenoy testified that Lim
`
`discloses “two embodiments. In both cases, you need to interrupt the virtual
`
`processor,” and that this testimony supports Patent Owner’s argument that Lim
`
`does not allow the virtual machine to continue executing during capture. (Paper
`
`No. 44, p. 3.) Symantec again mischaracterizes Dr. Shenoy’s testimony because
`
`Dr. Shenoy did not testify that those “two embodiments” are the only two
`
`embodiments disclosed in Lim. (Ex. 2020: 39:19-21.) Further, Mr. Richetti’s
`
`questions were under the guise of Dr. Shenoy’s “recollection” and “just sitting here
`
`right now” despite Dr. Shenoy’s insistence that he “would have to read” Lim to
`
`
`
`
`- 2 -
`
`
`
`IPR2013-00150
`Patent 7,093,086
`
`fully answer Mr. Richetti’s questions. (Ex. 2020: 39:4-25.)
`
`4. In paragraph 4, Symantec incorrectly argues that Dr. Shenoy’s testimony
`
`that Lim “doesn’t say what happens after your store the state vector” supports its
`
`arguments that “Lim does not anticipate.” (Paper No. 44, pp. 2-3.) In reality,
`
`Symantec’s short excerpts from Dr. Shenoy’s deposition conveniently leave out the
`
`rest of Dr. Shenoy’s answer where he states that Lim does disclose to a PHOSITA
`
`the transfer of the state vector while the virtual machine is executing:
`
`So it doesn't say what happens after you store the state
`vector. It does say that you can store the state vector to
`disk, where they can be stored indefinitely. So this
`opinion is, basically, saying that, for someone skilled in
`the art, it would be understood that if that state vector
`was stored on disk, where it persisted for an indefinite
`period of time, you could have resumed the execution of
`the virtual machine and then you can make the copy
`while that's happening because they're two independent
`things. (Ex. 2020, 59:8-19.)
`
`5. In paragraph 5, Symantec incorrectly argues that Dr. Shenoy’s testimony,
`
`which incidentally relates to a different portion of Lim then referenced in his
`
`Declaration, supports Symantec’s position that “Lim does not disclose the claimed
`
`memory area.” (Paper No. 44, p. 3) First, in paragraph 22 of his declaration, Dr.
`
`Shenoy cites to column 19:51-55 of Lim as support for Lim’s disclosure of storing
`
`
`
`
`- 3 -
`
`
`
`IPR2013-00150
`Patent 7,093,086
`state vectors in “a dedicated memory partition,” But, Dr. Shenoy’s testimony on
`
`cross-examination relates to a different embodiment that begins on line 55 with the
`
`phrase “the invention also provides a method for reducing the amount of storage.”
`
`(See Ex. 2020, 48:4-7; see also Lim, 19:55-62.) In other words, while column 19
`
`may discuss “reducing the amount of storage” it also discusses in a different
`
`embodiment storing state vectors in a “dedicated memory partition.” Second,
`
`whether or not Lim also discloses “a more efficient way of capturing the state
`
`vectors” does not support, and is not even relevant to Symantec’s position that
`
`“Lim . . . discloses, at best, conventional COW files and memories.”
`
`III. ESX
`
`
`
`6. In paragraph 6, Symantec incorrectly implies that Dr. Shenoy’s opinions
`
`regarding the claimed “new log of uncommitted updates” term relies on his use of
`
`the ESX product instead of how a person of ordinary skill in the art would
`
`understand the ESX manual. (Paper No. 44, pp.3- 4.) This is simply not true. In
`
`response to being asked what the ESX document describes, Dr. Shenoy testified:
`
`It certainly has a log of uncommitted updates as the new
`log. There's no question about it. I've explained scenarios
`in my analysis where the log is refreshed and becomes
`new, such as when you power up a virtual machine or set
`a disk to append mode. So, in my opinion, it still
`discloses, not only a log of uncommitted updates, but
`creating new logs of uncommitted updates when a new
`
`
`
`
`- 4 -
`
`
`
`IPR2013-00150
`Patent 7,093,086
`review log is created, for instance. (Ex. 2020, 93:24-
`94:13.)
`
`7. In paragraph 7, Symantec, yet again, attempts to imply that because later
`
`versions of vmkfstools, according to Symantec, cannot copy data while a virtual
`
`machine is executing that vmkfstools under ESX 1.0 cannot copy data while the
`
`virtual machine is executing. (Paper No. 44, p. 5.) The testimony cited by
`
`Symantec is irrelevant because the relevant inquiry is how a person of ordinary
`
`skill in the art would have understood the description of vmkfstools in the ESX 1.0
`
`user manual at the time of the invention, not at some point thereafter, as Symantec
`
`apparently hopes. See In re Baxter Travenol Labs, 952 F.2d 388, 390 (Fed. Cir.
`
`1991). At the very most, Dr. Shenoy’s testimony relates to how a PHOSITA may
`
`have interpreted a later version of vmkfstools, after the time of the invention, and
`
`thus is entirely irrelevant to an inquiry regarding how a PHOSITA would
`
`understand vmkfstools as described in the ESX 1.0 user manual at the time of the
`
`’086 invention.
`
`IV. Suzaki.
`
`8. In paragraph 8, Symantec contends that Dr. Shenoy’s testimony that
`
`bdflush may be used in an exemplary checkpoint implementation or that it may “be
`
`relevant to the checkpoint embodiment in Section 3” supports Symantec’s
`
`contention that Suzaki teaches capturing the state of applications “at different
`
`
`
`
`- 5 -
`
`
`
`IPR2013-00150
`Patent 7,093,086
`points in times.” (Paper No. 44., pp. 5-6.) Symantec is incorrect for two reasons.
`
`First, Dr. Shenoy’s testimony was limited to a component of the checkpointing
`
`process: “[y]ou do have to flush the dirty pages as part of taking the checkpoint”
`
`(Ex. 2020, p. 120:1-2 (emphasis added.) Thus, Dr. Shenoy’s testimony regarding
`
`bdflush does not imply that the checkpointing process, as a whole, may still not be
`
`capable of capturing state at a single point in time. Second, while Dr. Shenoy
`
`testified that bdflush could hypothetically be used in a checkpoint implementation,
`
`he also testified that “Suzaki doesn't actually provide details of how the checkpoint
`
`works in terms of flushing pages,” and that “based on the document . . . bdflush . .
`
`may or may not [be] use[d].” (Ex. 2020,120:8-121:7.) Therefore, because Dr.
`
`Shenoy’s testimony was limited to a single hypothetical implementation of
`
`checkpoints, it does not support Patent Owner’s contention that Suzaki as a whole
`
`teaches that applications “can be captured at different points in time.”
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`- 6 -
`
`
`
`IPR2013-00150
`Patent 7,093,086
`
`Respectfully submitted,
` STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Lori A. Gordon/
`
`
`
`Lori A. Gordon
`Registration No. 50,633
`Attorney for Petitioner
`
`
`
`
`Date: April 21, 2014
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`
`
`
`- 7 -
`
`
`
`CERTIFICATION OF SERVICE
`
`The undersigned hereby certifies that on this 21st day of April, 2014, “Veeam’s
`
`Response to Symantec’s Motion for Observations on Cross-Examination” 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.
`
`
`
` __/Lori A. Gordon/_________________
` Lori A. Gordon
`Date: April 21, 2014
` Attorney for Petitioner
`
`
`
`
`
`1100 New York Avenue, N.W. Registration No. 50,633
`Washington, D.C.20005-3934
`(202) 371-2600
`
`
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
