Trials@uspto.gov Paper No. 53
`571-272-7822 Entered: June 25, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`VEEAM SOFTWARE CORPORATION
`Petitioner,
`
`v.
`
`SYMANTEC CORPORATION
`Patent Owner.
`____________
`
`Case IPR2013-00141, Patent 6,931,558
`Case IPR2013-00142, Patent 6,931,558
`Case IPR2013-00143, Patent 7,191,299
`Case IPR2013-00150, Patent 7,093,086
`____________
`
`Held: May 5, 2014
`____________
`
`
`
`Before: FRANCISCO C. PRATS, MEREDITH C. PETRAVICK,
`THOMAS L. GIANNETTI, and TRENTON A. WARD,
`Administrative Patent Judges.
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`APPEARANCES:
`ON BEHALF OF THE PETITIONER:
`
`
`LORI A. GORDON
`
`
`BYRON L. PICKARD
`
`
`Directors
`
`
`Sterne, Kessler, Goldstein & Fox
`
`
`1100 New York Avenue, NW
`
`
`Washington, DC 20005
`
`
`571-272-7822 Entered: June 25, 2014
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`VEEAM SOFTWARE CORPORATION
`Petitioner,
`
`v.
`
`SYMANTEC CORPORATION
`Patent Owner.
`____________
`
`Case IPR2013-00141, Patent 6,931,558
`Case IPR2013-00142, Patent 6,931,558
`Case IPR2013-00143, Patent 7,191,299
`Case IPR2013-00150, Patent 7,093,086
`____________
`
`Held: May 5, 2014
`____________
`
`
`
`Before: FRANCISCO C. PRATS, MEREDITH C. PETRAVICK,
`THOMAS L. GIANNETTI, and TRENTON A. WARD,
`Administrative Patent Judges.
`
`APPEARANCES:
`ON BEHALF OF THE PETITIONER:
`
`
`LORI A. GORDON
`
`
`BYRON L. PICKARD
`
`
`Directors
`
`
`Sterne, Kessler, Goldstein & Fox
`
`
`1100 New York Avenue, NW
`
`
`Washington, DC 20005
`
`
`
`Case Nos. IPR2013-00141/142/143/150
`Patent Nos. 6,931,558/6,931,558/7,191,299/7,093,086
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`
`
`
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`ON BEHALF OF PATENT OWNER:
`
`
`JOSEPH J. RICHETTI, ESQUIRE
`
`
`Bryan Cave
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`
`1290 Avenue of the Americas
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`New York, New York 10104-3300
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`and
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`DANIEL A. CROWE, ESQUIRE
`Bryan Cave
`One Metropolitan Square
`211 North Broadway, Suite 3600
`St. Louis, Missouri 63102-2750
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`
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`The above-entitled matter came on for hearing on Monday,
`May 5, 2014, commencing at 1:00 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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` P R O C E E D I N G S
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`- - - - -
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`JUDGE GIANNETTI: So, good afternoon, everyone. We
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`are here today for a final hearing in a series of four IPRs in which
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`Veeam Software Corporation is the Petitioner and Symantec
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`Corporation is the Patent Owner.
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`Case Nos. IPR2013-00141/142/143/150
`Patent Nos. 6,931,558/6,931,558/7,191,299/7,093,086
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`For the record these are cases IPR2013-00141, 00142,
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`00143 and 00150. Your panel today is from left to right, Judge Ward,
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`Judge Petravick, myself, Judge Giannetti and Judge Prats.
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`Let's get -- counsel, we will -- we have three hours for the
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`hearing today. We will take a break at around 3:00, a short break, and
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`then we'll come back and finish the hearing.
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`Do we have -- let's get the appearances of counsel. Who do
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`we have today for Petitioner?
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`MS. GORDON: Yes. For Petitioner we have Lori Gordon
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`from the law firm of Stern Kessler Goldstein & Fox. Arguing with
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`me today is Byron Pickard also from the law firm of Stern Kessler.
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`JUDGE GIANNETTI: Okay. What was that last name?
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`MR. PICKARD: Pickard.
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`JUDGE GIANNETTI: Pickard. And for the Patent Owner?
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`MR. RICHETTI: Good afternoon, Your Honors. This is
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`Joseph Richetti from Bryan Cave representing Patent Owner,
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`Symantec Corporation. Here with me is my partner, Dan Crowe, also
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`representing Symantec.
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`JUDGE GIANNETTI: Okay. And that was Crowe?
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`MR. RICHETTI: Crowe.
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`JUDGE GIANNETTI: C R O W E?
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`MR. RICHETTI: Correct.
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`JUDGE GIANNETTI: Mr. Pickard, are you admitted pro
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`hac for this proceeding?
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`Case Nos. IPR2013-00141/142/143/150
`Patent Nos. 6,931,558/6,931,558/7,191,299/7,093,086
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`MR. PICKARD: No, Your Honor. I have a registration
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`number.
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`JUDGE GIANNETTI: You have a registration number?
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`MR. PICKARD: Yes.
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`JUDGE GIANNETTI: Okay. All right. So now we have
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`appearances. Have -- I'll address this to counsel. Have you had an
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`opportunity to talk about the format and the timing of the hearing?
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`MS. GORDON: Yes, Your Honor. We have discussed it.
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`Our plan was for Petitioner to present its case in chief on all four IPRs
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`and we'd like to reserve 30 minutes for rebuttal and then Patent Owner
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`will present its case in chief on its four patents and provide rebuttal of
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`our case and then we would go last.
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`JUDGE GIANETTI: Case in chief on its motion to amend.
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`MS. GORDON: To amend.
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`JUDGE GIANNETTI: Okay. So do you want to proceed
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`first with the patentability issues?
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`MS. GORDON: Correct.
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`JUDGE GIANETTI: Okay. And so you will reserve time
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`for rebuttal on that, right?
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`MS. GORDON: Correct.
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`JUDGE GIANNETTI: Okay. And then you will proceed
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`on -- Mr. Richetti, you will proceed on the motion to amend, right?
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`MR. RICHETTI: As well as the opposition to their petition,
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`Your Honor. I think that was our understanding.
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`Case Nos. IPR2013-00141/142/143/150
`Patent Nos. 6,931,558/6,931,558/7,191,299/7,093,086
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`JUDGE GIANNETTI: No. I thought that you were going
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`to do the patentability first and then go on to the motion to amend.
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`MS. GORDON: Yeah, I guess our understanding is that we
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`would present patentability, then Patent Owner would rebut
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`patentability and present their motion to amend and then we would
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`rebut the motion to amend.
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`JUDGE GIANETTI: Okay. And then you have reply --
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`MR. RICHETTI: On the motion to amend, exactly.
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`JUDGE GIANNETTI: Okay. And you want to do this for
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`all patents?
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`MS. GORDON: Yes.
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`JUDGE GIANNETTI: All at once? Okay. And so what
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`we'll do is we'll give each of you an hour and a half to do that. At
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`3:00 we'll stop and take a break and I'll try to let you know when
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`you're running low on time, but you'll have to watch your time
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`yourselves. We won't be able to give you warnings, because you're
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`not going patent by patent. All right?
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`So, Ms. Gordon, I guess you are first. All right. And you
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`have an hour and a half and I'll let you know when you have -- I guess
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`you will just proceed until you stop and then Mr. Richetti will be up.
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`We won't be keeping time or giving a warning. Understood?
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`now?
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`MS. GORDON: Yes, understood.
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`JUDGE GIANNETTI: Okay. Do you want to reserve time
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`Case Nos. IPR2013-00141/142/143/150
`Patent Nos. 6,931,558/6,931,558/7,191,299/7,093,086
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`MS. GORDON: Yes. So we'd like to reserve 30 minutes
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`for rebuttal.
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`JUDGE GIANETTI: Are you going to move from one
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`patent to the next or are you just going to go through it?
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`MS. GORDON: Yes. How we would like to handle it is
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`we'd like to start with the 150 case, the '086 patent, and then turn to
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`the 143 case. Then I'll hand it over to Mr. Pickard to argue that IPR,
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`which is the '299 patent, and then we'd like to finish with the two IPRs
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`related to the '588 patent, which are on IPR 141 and 142.
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`JUDGE GIANETTI: Okay. All right.
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`MS. GORDON: Your Honor, the parties did have one
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`question before we start related to how you would like to handle any
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`objections if they arise during the course of the hearing.
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`JUDGE GIANETTI: We haven't had an objection in any of
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`the hearings I've been to.
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`MS. GORDON: Okay.
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`JUDGE GIANNETTI: But if you do find it necessary to
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`make objections, I hope that you will keep it to an absolute minimum
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`and we'll just deal with it. Like I say, we've had quite a few hearings
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`and to my knowledge nobody's made an objection.
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`MS. GORDON: Okay.
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`JUDGE GIANNETTI: So you have an hour and 30 minutes
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`and you may proceed when you're ready,
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`Ms. Gordon.
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`MS. GORDON: Okay. Thank you.
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`Case Nos. IPR2013-00141/142/143/150
`Patent Nos. 6,931,558/6,931,558/7,191,299/7,093,086
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`So we would like to start with IPR2013-00150, which is
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`related to the '086 patent. There are two fatal errors in Patent Owner's
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`position that we'd like to discuss today with the Board.
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`First, Patent Owner's arguments are premised on five
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`improper claim constructions, three related to the independent claims
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`and two related to the dependent claims. Patent Owner's constructions
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`ignore explicit language in the claims and they also selectively import
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`limitations from the specification, which is improper.
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`Now, regarding the independent claims, Patent Owner first
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`argues that the term "state" should be construed to require
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`configuration information. This is a construction that is substantially
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`narrower than the construction that Patent Owner argued was
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`reasonable to the District Court.
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`Second, Patent Owner is asking the Board to construe the
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`claims as requiring continual execution of the virtual machine during
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`the capture step. As we will show today, nowhere do the claims
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`require execution of the virtual machine during the capture step, let
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`alone continual execution of the virtual machine throughout the entire
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`capture step.
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`Third, the Patent Owner is urging the Board to find that the
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`claims require a backup program. Not only a backup program, but
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`one that is operating separately from the virtual machine kernel.
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`Again, nowhere do the claims use the term "backup," let alone require
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`a backup program separate from the virtual machine kernel.
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`Case Nos. IPR2013-00141/142/143/150
`Patent Nos. 6,931,558/6,931,558/7,191,299/7,093,086
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`Now, regarding Dependent Claims 11 and 22, Patent Owner
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`is asking the Board to construe the term "a new log of uncommitted
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`updates" as actually being -- requiring two logs of uncommitted
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`updates. Again, the claims don't recite a plurality of uncommitted
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`update logs or a first log and a second log. They merely recite a new
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`log of uncommitted updates.
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`And, finally, Patent Owner is seeking a narrow construction
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`of the term "memory area" in the dependent claims as a specific
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`structure of memory copy-on-write or memory COW. However, like
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`state Patent Owner's construction is significantly narrower than the
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`broad construction they're putting forth in the District Court to prove
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`infringement.
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`Patent Owner's second fatal error in this case is Patent
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`Owner's fundamental misunderstandings of the technical teachings of
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`the references, particularly as it relates to the copying step of the
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`claims for ESX getting started guide reference and also a
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`misunderstanding of how Suzaki works in relation to the capture step.
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`So we'd like to start with the construction of state. In this
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`proceeding the Board construed the term "state" as information
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`regarding the virtual machine to permit the virtual machine to resume
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`execution of the application at the point in time the state was captured.
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`JUDGE GIANNETTI: Just a second, Ms. Gordon. It might
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`be helpful for the record if you -- when you put a slide up, if you'd just
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`tell us what slide number.
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`Case Nos. IPR2013-00141/142/143/150
`Patent Nos. 6,931,558/6,931,558/7,191,299/7,093,086
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`MS. GORDON: Oh, sure. So this is slide number 6. Okay.
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`The Board's construction is what the District Court had also construed
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`this term. In this proceeding Patent Owner disagreed, arguing first
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`that nothing in the claims limits state to information needed to resume
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`execution of an application. However, if we look at the explicit
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`language of the claims that can be found on slide 2, we see that that's
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`not the case.
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`What we see in the claims is that the system captures the
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`state of the virtual machine and it tells us exactly what that virtual
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`machine is in this claim. It's one virtual disk storing at least one file
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`used by at least one application executing in the first virtual machine,
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`that is as claimed, this claim requires an executing application in the
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`virtual machine. Therefore, the Board's construction is consistent
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`with the claims contrary to Patent Owner's position and is also
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`consistent with how the term is used throughout the specification.
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`Patent Owner further asked the Board going back to slide 6
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`to construe the construction of state to require configuration
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`information, such that the virtual machine can resume execution on
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`any computer. Well, as an initial matter, nothing in the claims require
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`state to have configuration information.
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`And if you look at the spec, there's nothing in the spec that
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`says that state always has to have configuration information. In fact,
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`the specification handles state very broadly and this was recognized
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`by the Patent Owner in District Court when they said to the District
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`Court that the patent specification uses the term "state" broadly to
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`Patent Nos. 6,931,558/6,931,558/7,191,299/7,093,086
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`potentially include any of a variety of information regarding the
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`virtual machine and the construction should reflect this usage, that is
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`Patent Owner in the District Court said, based on the specification of
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`the '086, this is a reasonable construction for the term "state."
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`Now faced with a reasonable likelihood that their claims are
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`invalid under four separate references, they're retreating to a narrow
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`definition and Patent Owner can't have it both ways. This is the broad
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`construction they felt was reasonable.
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`Now, as Petitioner established in its papers, each of the
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`references captures the state of the virtual machine as properly
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`construed by the Board. For example, the ESX reference capture state
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`in two files, the .STD file, which is the state file, and in redo logs, the
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`.REDO logs. In getting started guide captures state in a similar way.
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`Now, the Lim reference actually captures state under both
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`the Board's construction and the narrow construction urged by the
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`Patent Owner. And if we turn to slide 8 in the demonstratives, we
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`provide the citation from Lim where they describe what the state is
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`that they capture.
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`Lim is very clear. Lim captures the total machine state and
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`they describe this as the entire collection of all information that is
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`necessary and sufficient to uniquely determine the status of all
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`hardware and software and Lim cannot be any clearer, I capture
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`everything about this system.
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`Now, Petitioner's expert explained that the total machine
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`state would necessarily include the configuration settings referred to
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`by the Patent Owner. And why is this? Because Lim captures --
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`determines the status of all hardware and software and determines
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`status, you have to know what hardware and software is running in the
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`system. Therefore, Lim necessarily has configuration settings.
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`And turning to slide 9, on cross examination Patent Owner's
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`experts agreed. During cross examination Patent Owner's expert
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`conceded that configuration information would include the type of
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`hardware that was running in the system. And then when asked
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`whether the type of hardware was part of the state of the Lim patent,
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`Patent Owner's expert said, I believe so. It's part of the hardware of
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`every component of the system, that is Lim not only captures the total
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`machine state, but that total machine state includes configuration
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`information.
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`Turning to the next issue, whether the claims require
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`continual execution of the virtual machine during the capture step.
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`This would be slide 7 of Petitioner's demonstratives. Patent Owner
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`argues that the Board should construe the claims as requiring
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`continual execution of the VM during capture, but you can see from
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`the explicit language of the claims that's not the case.
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`If we look at just the highlighted part here, we have copy at
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`least a portion of the state to a destination separate from a storage
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`device to which the first virtual machine is suspendable, wherein
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`suspending the first virtual machine is performed responsive to a
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`suspend command. The claims recite the word "suspend" not once,
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`not twice, but three times. In each independent claim the word
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`"suspend" is used.
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`Now, the Patent Owner is asking the Board, you know, just
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`ignore that whole paragraph that says suspend. We're continually
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`executing. That's not proper. The Patent Owner drafted these claims.
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`They used this language and they must be held to the language they
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`selected. The virtual machine is suspended in the independent claims.
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`JUDGE WARD: Ms. Gordon, how do you respond to
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`Patent Owner's arguments with respect to the first clause of the claim
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`that says capture a state of a first virtual machine executing, Jarenberg
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`(phonetic) executing. They're defining the first virtual machine.
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`MS. GORDON: Right. So I think that doesn't mean that
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`the virtual machine is continually executing. That means that virtual
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`machine is executing at least until the point that the capture is
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`occurring. And if you look at the specification, particularly related to
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`the embodiments that discuss the suspend command, they use this
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`exact same language. They talk about the virtual machine executing,
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`then it gets a suspend command and then the state is captured.
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`So this is consistent with how the specification describes all
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`the embodiments, including the suspend and the embodiments where
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`it's not suspended, and this is stressed. If you look at Claim 10, and
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`Claim 10 depends from Claim 1 and what it says is wherein step (i)
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`the capture state comprises suspending the first virtual machine.
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`Therefore, the Patent Owner recognized that the capture step must be
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`broadly construed as being capable of being suspended -- the virtual
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`machine is suspended during the capture step. Patent Owner's own
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`claim supports the notion that the virtual machine is suspended during
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`the capture step.
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`Now, turning to the Patent Owner's next argument that the
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`claims should be construed as requiring a backup program, not only a
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`backup program, but one that's separate from the VM kernel. It's
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`important to understand what's described in that '086 patent and the
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`'086 patent describes two concepts, the first being backup and the
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`second being disaster recovery.
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`And we see in the claim that you capture the state and copy
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`at least a portion of the state to a destination. Well, in backup the
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`destination for the captured state is a backup storage medium, whereas
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`in disaster recovery the destination for the captured state is another
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`computer system, and that's an important distinction that's covered
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`within the '086 patent. Because if you have a failure during backup,
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`you have to load the computer from the storage medium from the disk
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`or the tape back on the computer in order to resume. Whereas in
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`disaster recovery, you can just walk over to the other computer and
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`you're restored in backup and operation.
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`And it's clear that the claims were drafted broadly enough
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`to cover both backup and disaster recovery, and that's supported when
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`we look at the Dependent Claim 2. Dependent Claim 2 makes it clear
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`wherein the destination is a backup medium. Dependent Claim 2 is
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`directed to the backup embodiment. Claim 1, therefore, must be
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`construed broadly to cover both backup and disaster recovery contrary
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`to the position taken by the Patent Owner.
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`In addition, Patent Owner is arguing that the claims -- the
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`backup program is separate from the virtual machine kernel. Well,
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`this is just inconsistent with the teachings of the specification. We see
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`here in the specification of the '086 patent that the backup program
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`may be implemented as part of the virtual machine kernel, that is the
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`'086 patent doesn't require a separate backup program.
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`Now, we would like to turn to the dependent claims, Claims
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`11 and 22, which are reproduced on our slide number 4. As an initial
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`matter, it's important to note that the final phrase in these claims such
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`that the first virtual machine can continue executing during step 2,
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`which is the copy step, and it's important to note here that the Patent
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`Owner drafted this permissively. It's not saying that the virtual
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`machine has to or is required to continue executing. It just says the
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`virtual machine can continue to execute. It's a permissive limitation
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`and that's important to keep in mind for the purposes of determining
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`patentability.
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`Now, these claims also recite a new log of uncommitted
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`updates. Now, regarding particularly the ESX and the getting started
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`guide reference, Patent Owner argues that, well, you should read this
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`limitation as requiring really two logs of uncommitted updates, the
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`redo log that ESX and GSG creates, and another log of uncommitted
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`updates.
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`Well, that's just incorrect. The claims don't require two logs
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`of uncommitted updates and I think the parties agree that both ESX
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`and getting started guide use the redo logs, which are logs of
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`uncommitted updates. And as Petitioner's expert explained, these
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`redo logs are new in various circumstances. For example, every time
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`a virtual machine is booted, a new redo log is created. Anytime
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`changes are committed, a new redo log is created to store changes,
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`that is both ESX and getting started guide create a new log of
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`uncommitted updates and that is all that the claims require.
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`The next argument that Patent Owner has made is related to
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`the memory area and they asked the Board in Claims 11 and 22 to
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`construe the term "memory area" in these claims as a very specific
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`structure, a memory copy-on-write structure. However, you note that
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`the claims don't require this. There's nothing in the claims that restrict
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`the memory area to a copy-on-write structure.
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`Furthermore, if you look at slide 10, this is in direct
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`contradiction to what the Patent Owner is putting forth in the District
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`Court to prove infringement. In the District Court the Patent Owner is
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`saying that VMware creates a memory area to capture writes to a
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`memory of the first virtual machine, such that the first virtual machine
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`can continue executing during (ii), which is a copy step. The
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`allocation of memory is a requirement for a running machine.
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`So the Patent Owner in District Court litigation to prove
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`infringement is saying a reasonable construction of this term is a
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`memory allocation that occurs in any running machine. So Patent
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`Owner is asking the District Court to find infringement on this very
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`broad construction.
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`Now, in this proceeding they're saying that's not the case.
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`You need to really narrowly construe this claim. Well, again, Patent
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`Owner can't have it both ways. They can't take a broad construction
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`for infringement and then say for invalidity purposes you need to look
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`at it narrowly. They must be consistent and held to their positions.
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`Now, Petitioner has established for the references that they
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`disclose creating a new log of uncommitted updates in a memory area
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`under this broad construction. However, Petitioner also wants to
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`describe on slide 11 how Lim meets this construction, even under the
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`Patent Owner's very narrow construction.
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`So as we can see, what Lim discloses is the creation or
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`capture of a state vector. That includes the elements that represent the
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`total machine state. And what Lim does is says, once you get that
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`state vector as zero, only updates to the state vectors need to be stored,
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`that is using copy-on-write techniques. I only need to record what has
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`changed. So now we know that Lim has a COW in its updates in a
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`state vector.
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`Lim then explains that the state vector includes memory.
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`Therefore, if there's a change to memory, you would have a COW for
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`memory. So you have a memory COW. So right here in Lim these
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`memory updates are equivalent to the memory COW.
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`Now, Lim further explains that these changes in the state
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`vector are stored in a dedicated memory partition. So now we have a
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`memory area, a memory partition that is created to store the memory
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`COW of Lim. So even under Patent Owner's narrow construction,
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`Lim discloses the elements of Claims 11 and 12.
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`JUDGE WARD: Ms. Gordon, let me interrupt you there.
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`On that particular point how do we know that that dedicated memory
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`partition is a new memory partition and not simply just the area
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`previously designated for the original state vector?
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`MS. GORDON: Right. Because prior to the generation of
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`the updates, that memory partition did not exist. Therefore, it was
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`created specifically when updates were happening in Lim.
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`JUDGE WARD: So you're telling me that originally -- talk
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`to me about the original state vector that is captured. Obviously there
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`has to be memory area designated to capture that state vector, correct?
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`MS. GORDON: Correct.
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`JUDGE WARD: Why can't that simply be the same
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`dedicated memory portion to which the memory updates go?
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`MS. GORDON: Would you mind if I -- one minute.
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`JUDGE WARD: Sure.
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`MS. GORDON: Okay. Would it be all right if my
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`colleague helps answer this question or --
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`JUDGE WARD: Is your colleague counsel of record?
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`MS. GORDON: He is in this case.
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`JUDGE WARD: Sure.
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`MR. BLOCK: Yeah, Your Honor, so one of the issues --
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`JUDGE WARD: First, state your name.
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`MR. BLOCK: Yeah, my name's Daniel Block. And, Your
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`Honor, so one of the things that you have to deal with when you're
`
`operating under this technique is the size of the state vector, because
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`the state vector may be different sizes for different types of state that
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`it's capturing.
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`JUDGE WARD: Sure.
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`MR. BLOCK: So the issue is the dedicated memory
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`partition. You actually don't know the size of it until you know the
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`size of the state vector. So when you create the dedicated memory
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`partition, you have to allocate it for the size of the state vector. So
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`that happens every time you need to store it in a state vector.
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`JUDGE WARD: So you're telling me because I'm
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`dynamically allocating the amount of space that needs to be -- that's
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`required to save that particular state vector, it has to be a new memory
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`space each time?
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`MR. BLOCK: That's how dynamic memory allocation
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`operates on computers. There's a big pool of memory and it grabs it
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`out of that when it needs to allocate the memory.
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`JUDGE WARD: Where and when does it tell me it's doing
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`that?
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`MR. BLOCK: A person of ordinary skill in the art would
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`understand when you're looking at this idea of dedicated memory out,
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`the dedicated memory partition, as well as the idea that the state
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`vectors are being stored in there, that, like you said, you would have
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`to use dynamic memory allocation and then that would create a
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`memory area.
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`JUDGE WARD: But you do agree that there is a dedicated
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`memory partition for the original state vector.
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`MR. BLOCK: That's correct, as well as any subsequent
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`state vectors as well.
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`JUDGE WARD: And your argument is that there's a newly
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`designated dedicated memory partition for each of those subsequent
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`vectors.
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`MR. BLOCK: Right. Like you said, during dynamic
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`memory allocation, right, you're allocating memory on the fly and
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`then each time you're doing that that's creating a new memory area.
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`JUDGE WARD: Okay.
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`MS. GORDON: Thank you. So we'd like to turn to Patent
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`Owner's position related to the copying of state for ESX and getting
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`started guide. And, again, we'd like to go back to the language of
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`Independent Claims 1 and 12. And I think it's, again, important to
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`note that Independent Claim 1 recites capturing a state of the first
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`virtual machine, but step 2 is copying at least a portion of the state.
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`That means you capture the state, but you're only required to copy at
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`21
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`least a portion of that state.
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`22
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`And there's no dispute between the parties that ESX
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`23
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`captures both the state file, the .STD file and the redo log and ESX
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`24
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`explains that the state file contains the entire state of the virtual
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`machine and the redo log contains the uncommitted updates, and
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`Petitioner has explained that ESX can copy the redo log. And as
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`explained in ESX on page 106, which is reproduced on page 14 of
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`Petitioner's exhibits, there's a process that allows a user to export a
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`copy of the redo log to the console operating system using an export
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`raw command.
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`So what we have here is that we have a virtual machine, a
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`redo log is copied to the console and at that point ESX explains that
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`the redo log can then be transported to a remote site, can be copied.
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`So we see here that then it can be copied to a remote site. So this is
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`the copying that Petitioner is referring to and Petitioner's expert
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`explained that that copy step can occur when the virtual machine is
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`executing. Because as you see, the redo log has already been exported
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`to the console operating system, which is always running. Therefore,
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`at that stage the virtual machine can resume execution and this copy
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`step from the console operating system to the remote site can occur,
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`that is ESX discloses copying state.
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`JUDGE WARD: Ms. Gordon, where does it tell us that the
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`console operating system is always running in the ESX reference?
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`MS. GORDON: We'll get that cite for you. I'll continue
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`and we'll get the cite for you.
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`JUDGE WARD: Sure.
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`MS. GORDON: Similarly, the getting started guide also
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`23
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`discloses copying state and, as Petitioner's expert explains, in the
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`getting started guide version of VMware, when you're writing to a
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`25
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`redo log, the nature of the architecture is that VMware runs on --
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`requires the redo log to first be written to memory, that is it's captured
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`in memory and then it's copied to anoth
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