Trials@uspto.gov
`Tel: 571-272-7822
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`Paper 10
`Entered: August 7, 2013
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_______________
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`VEEAM SOFTWARE CORPORATION
`Petitioner
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`v.
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`SYMANTEC CORPORATION
`Patent Owner
`_______________
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`Case IPR2013-00150
`Patent 7,093,086
`_______________
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`
`Before THOMAS L. GIANNETTI, SCOTT E. KAMHOLZ, and
`TRENTON A. WARD, Administrative Patent Judges.
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`
`WARD, Administrative Patent Judge.
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`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
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`IPR2013-00150
`Patent 7,093,086
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`I.
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`INTRODUCTION
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`A. Background
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`Veeam Software Corporation filed a petition to institute an inter partes
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`review of claims 1, 11, 12 and 22 of U.S. Patent 7,093,086 (the “ ’086 patent”).
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`Paper 2 (“Pet.”). Patent Owner Symantec Corporation filed a preliminary
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`response. Paper 9 (“Prelim. Resp.”). The standard for instituting an inter partes
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`review is set forth in 35 U.S.C. § 314(a), which provides as follows:
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`THRESHOLD -- The Director may not authorize an inter
`partes review to be instituted unless the Director
`determines that the information presented in the petition
`filed under section 311 and any response filed under
`section 313 shows that there is a reasonable likelihood
`that the petitioner would prevail with respect to at least
`1 of the claims challenged in the petition.
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`Petitioner contends that the challenged claims are unpatentable under
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`35 U.S.C. §§ 102 and/or 103 on the following specific grounds (Pet. 10-58):1
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`Reference(s)
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`Basis
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`Claims challenged
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`Lim
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`§ 102
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`1, 11, 12, and 22
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`VMware ESX
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`§ 102
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`1, 11, 12, and 22
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`VMware GSG
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`§ 102
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`1, 11, 12, and 22
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`1 The references relied upon are: US 6,795,966 (Ex. 1004) (“Lim”), VMware ESX
`Server: User Manual (Ex. 1005) (“VMware ESX”), Getting Started Guide:
`VMware 2.0 for Linux (Ex. 1006) (“VMware GSG”), “Checkpoint for Network
`Transferable Computer” by Suzaki (Exs. 1007-1009) (“Suzaki”), and “Integrating
`Checkpointing with Transaction Processing” by Wang (Ex. 1010) (“Wang”); and
`US 6,917,963 (Ex. 1011) (“Hipp”). Additionally, Petitioner supports its challenge
`with a declaration by Dr. Prashant Shenoy (Ex. 1002) (“Shenoy Decl.”).
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`IPR2013-00150
`Patent 7,093,086
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`Reference(s)
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`Basis
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`Claims challenged
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`Suzaki
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`§ 102
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`1 and 12
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`Suzaki and Wang
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`§ 103
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`11 and 22
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`Suzaki and Hipp
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`§ 103
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`11 and 22
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`Hipp
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`§ 102
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`1, 11, 12, and 22
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`For the reasons given below, we institute an inter partes review of claims 1,
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`11, 12, and 22.
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`B. Additional Proceedings
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`In addition to this petition, Petitioner has filed petitions challenging the
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`patentability of certain claims of Patent Owner’s U.S. Patents 6,931,558 (IPR2013-
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`00141, IPR2013-00142), 7,254,682 (IPR2013-00144, IPR2013-00145), and
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`7,191,299 (IPR2013-00143, IPR2013-00151).
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`C. The Invention
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`The ’086 patent is titled “Disaster Recovery and Backup Using Virtual
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`Machines” and generally relates to computer systems and methods for backing up
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`virtual machines. ’086 patent, col. 2, ll. 1-2. The patent describes a computer
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`system that executes one or more virtual machines, having multiple applications,
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`and to create a backup; the computer system may capture a state of each virtual
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`machine and backup the state. Id. at col. 2, ll. 53-56. The state may include the
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`information in a virtual image created in response to a suspension of the virtual
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`machine. Id. at col. 2, ll. 60-62. Figure 1 of ’086 patent is reproduced below:
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`’086 patent, Figure 1
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`As illustrated above in Figure 1, the ’086 patent discloses that multiple virtual
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`machines, 16A-C, can be controlled by Virtual Machine (“VM”) Kernel 18, which
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`comprise software and/or data structures executed on the underlying hardware 20
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`of the computer system 10. ’086 patent, col. 3, ll. 30-37. Figure 1 further
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`illustrates that the computer system 10 can include a storage device 22 and backup
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`medium 24. ’086 patent, col. 3, ll. 40-42. Claim 1 illustrates the claimed subject
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`matter and is reproduced below:
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`1. A computer readable medium storing a plurality of
`instructions comprising instructions which, when
`executed:
`(i) capture a state of a first virtual machine executing on a
`first computer system, the state of the first virtual
`machine corresponding to a point in time in the
`execution of the first virtual machine, wherein the first
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`virtual machine comprises at least one virtual disk
`storing at least one file used by at least one
`application executing in the first virtual machine, and
`wherein
`the state of
`the first virtual machine
`comprises the at least one file; and
`(ii) copy at least a portion of the state to a destination
`separate from a storage device to which the first
`virtual machine is suspendable, wherein suspending
`the first virtual machine is performed responsive to a
`suspend command.
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`D. Claim Construction
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`Consistent with the statute and the legislative history of the AIA, the Board
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`will interpret claims of an unexpired patent using the broadest reasonable
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`construction in light of the specification of the patent. See Office Patent Trial
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`Practice Guide, 77 Fed. Reg. 48756, 48766 (Aug. 14, 2012); 37 CFR
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`§ 42.100(b). There is a “heavy presumption” that a claim term carries its ordinary
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`and customary meaning. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359,
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`1366 (Fed. Cir. 2002).
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`1. “state of a virtual machine”
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`Patent Owner alleges that the term “a state of [a] virtual machine” means
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`“information regarding [the] virtual machine, including virtual disk(s), to permit
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`the virtual machine to resume execution.” Prelim. Resp. 14. The ’086 patent
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`states that “the virtual machine state includes all of the state used by the
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`application (operating system and its configuration settings, the application and its
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`configuration settings, etc.).” ’086 patent, col. 3, ll. 22-25. In the related litigation
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`involving the ’086 patent in the District Court for the Northern District of
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`California (“District Court”), the Court determined that the “the specification does
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`not explicitly address what data a ‘state’ must contain, providing only examples,
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`such as: ‘all the state needed to restart the application on the second computer
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`system (e.g., the operating system and its configuration settings, the application
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`and its configuration settings, etc.).’” Symantec Corp. v. Veeam Software Corp.,
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`Case No. 12-cv-00700-SI, March 8, 2013 Claim Construction Order, 9 (Ex. 2005)
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`(“Claim Construction Order”) (quoting the ’086 patent, col. 2, ll. 60-62). The
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`District Court ultimately found that “the specification clearly indicates that a ‘state’
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`is recorded to permit the virtual machine to resume the interrupted application to
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`the point in time the state was recorded.” Claim Construction Order 10.
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`Accordingly, the District Court construed “‘a state of [first] virtual machine’ as
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`‘information regarding the [first] virtual machine to permit the virtual machine to
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`resume execution of the application at the point in time the state was captured.”
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`Claim Construction Order 10 (brackets in original). On the record presented, we
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`find this reasonable and, therefore, adopt the District Court’s construction.
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`2. “copy[ing] at least a portion of the state to a destination separate
`from a storage device to which the first virtual machine is
`suspendable”
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`Patent Owner argues that the claimed phrase “copy[ing] at least a portion of
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`the state to a destination separate from a storage device to which the first virtual
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`machine is suspendable” should be construed as the following:
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`(1) if a previous copy of the virtual disk(s) resides on a destination
`that is separate from a storage device on which the state of the first
`virtual machine is stored when the first virtual machine is suspended,
`storing changes to the state at the separate destination, or
`(2) if a previous copy of the virtual disk(s) does not reside on the separate
`destination, storing the captured state at the separate destination.
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`Prelim. Resp. 17. In the related litigation involving the ’086 patent, the parties
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`agreed that “a destination separate from a storage device to which the
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`first virtual machine is suspendable” means “a destination separate from a storage
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`device on which the state of the first virtual machine is stored when the first virtual
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`machine is suspended.” Claim Construction Order 3. Patent Owner argues that in
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`one embodiment described in the ’086 patent, if a previous copy of the state
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`information being newly captured already resides on a separate destination, then
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`only the information regarding changes in state would be copied to the separate
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`destination. Prelim. Resp. 20 (citing ’086 patent, col. 6, ll. 52-63, col. 7, ll. 10-15,
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`col. 13, ll. 20-25). Patent Owner further argues that in another embodiment
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`described in the ’086 patent, if a previous copy of the virtual disks does not reside
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`on the separate destination, then all of the state captured is copied. Prelim. Resp.
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`20 (citing ’086 patent, col. 2, ll. 55 – col. 3, l. 7, col. 13, ll. 20-21). Patent Owner’s
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`proposed claim construction attempts to import into the claims language from these
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`two embodiments in the specification by attempting to insert multiple conditions
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`about when and what to copy into the claim language “copy at least a portion.”
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`This is not permissible. See Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir.
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`2005)(en banc)(“[A]lthough the specification often describes very specific
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`embodiments of the invention, we have repeatedly warned against confining the
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`claims to those embodiments.”).
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`On the record presented, we conclude that the broadest reasonable
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`interpretation of the phrase “copy[ing] at least a portion of the state to a destination
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`separate from a storage device to which the first virtual machine is suspendable”
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`consistent with the specification is “copy[ing] at least a portion of the state to a
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`destination separate from a storage device on which the state of the first virtual
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`machine is stored when the first virtual machine is suspended.”
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`E. Other Matters
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`Patent Owner contends that there is insufficient evidence that the VMware
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`ESX is a printed publication. Prelim. Resp. 7. Patent Owner provides a similar
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`challenge alleging insufficient evidence of publication for VMware GSG and
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`Suzaki. Prelim. Resp. 7-9. At this stage of the proceedings, in light of the indicia
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`of publication exhibited on these documents and in the absence of any compelling
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`evidence to the contrary, we choose to consider VMware ESX, VMware GSG, and
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`Suzaki for the purpose of this decision.
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`
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`II. ANALYSIS
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`A. Overview
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`Petitioner contends that the claims of the ’086 patent combine two well-
`
`known computing concepts: (1) copying data to a separate destination, and (2)
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`virtual machines. Pet. 3. To support this position, Patent Owner provides
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`testimony of Dr. Prashant Shenoy, who states that he has more than two decades of
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`experience in distributed/operating systems, networking, and data management,
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`and is familiar with the technology disclosed in the ’086 patent. Shenoy
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`Decl. ¶¶ 1-4.
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`B. Anticipation by Lim of claims 1, 11, 12, and 22
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`1. Overview of Lim
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`Lim is titled “mechanism for restoring, porting, replicating, and
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`checkpointing computer systems using state extraction” and discloses a virtual
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`machine monitor on which multiple virtual computer systems are installed whose
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`states can be checkpointed under control of the virtual machine monitor. Lim,
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`Abstr. The checkpointed virtual machine may be restored into the system at a later
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`time. Id. Figure 2 of Lim is reproduced below:
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`Lim, Figure 2
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`As shown above in Figure 2, Lim discloses a virtual machine (“VM1”) 200,
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`including a virtual operation system (“VOS”) 202, a virtual processor (“VPROC”)
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`204, a virtual disk that is virtual memory (“VMEM”) 206, and virtual peripheral
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`devices 208, “all of which are implemented in software to emulate the
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`corresponding components of an actual computer.” Lim, col. 14, ll. 27-32.
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`Additionally, as shown in Figure 2, Lim discloses a virtual machine monitor 250 in
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`between the virtual machines 200 to 200n and the system hardware. Lim, col. 15,
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`ll. 26-31. To enable computer system restoration, Lim discloses capturing the
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`“total machine state” of a computer system, which is “the entire collection of all
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`information that is necessary and sufficient to uniquely determine the status of all
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`hardware and software components at the completion of any given processor
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`instruction.” Lim, col. 10, ll. 26-30. Therefore, if the processor’s execution is
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`interrupted, the “total machine state is then the set of data that, when loaded at any
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`time into the appropriate memory positions (both internal and external to the
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`processor), will cause the processor, and all connected hardware and software
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`components, to continue executing in exactly the same way as if there had been no
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`interruption at all.” Lim, col. 10, ll. 32-38.
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`2. Analysis
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`a. Claims 1 and 12
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`Claims 1 and 12 require that capturing the “state of a first virtual machine,”
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`where the virtual machine comprises “at least one virtual disk storing at least one
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`file used by at least one application executing in the first virtual machine.” Patent
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`Owner argues that the “state of the first virtual machine” must include at least one
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`“file” used by at least one application executing on the virtual machine. Prelim.
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`Resp. 24. Patent Owner contends that Lim fails to teach capturing a file by an
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`application because it teaches that the state is represented and stored as a vector,
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`and the vector is a list or data structure of all of the parameters, register values, I/O,
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`and other peripheral device settings. Prelim. Resp. 24. We disagree, as Patent
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`Owner’s arguments are not consistent with the disclosures in Lim.
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`Lim discloses that “[d]efined broadly, this invention encapsulates the entire
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`computer system by enumerating and storing its total machine state using software
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`(or dedicated hardware).” Lim, col. 10, ll. 62-64 (emphasis added). Furthermore,
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`Lim discloses that encapsulating the entire computer system includes “data that is
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`in application buffers or in the disk cache of the operating system, as well as the
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`data that is on the disk, is included in the transaction.” Lim, col. 11, ll. 2-5
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`(emphasis added). Accordingly, as noted by Dr. Shenoy, Lim discloses capturing
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`the “total machine state” of a computer system, which is “‘the entire collection of
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`all information that is necessary and sufficient to uniquely determine the status of
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`all hardware and software components at the completion of any given processor
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`instruction.’” Shenoy Decl. ¶ 15 (quoting Lim, col. 10, ll. 27-30). Therefore, Lim
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`discloses that in addition to representing the machine state in a “list or data
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`structure” such as a “state vector,” all associated data, including files, are captured.
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`See Lim, col. 11, ll. 2-5.
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`Patent Owner further argues that Lim discloses only capturing vectors, and
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`contends that “a vector is a data structure that merely includes a list of elements
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`according to Lim.” Prelim. Resp. 25. Additionally, Patent Owner argues that
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`nowhere does Lim teach or suggest that the elements of the state vector are files.
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`Prelim. Resp. 26. We do not agree. Patent Owner’s argument that Lim discloses
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`merely storing a “list of elements” is not consistent with the disclosure in Lim that
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`the system captures “the entire collection of all information that is necessary and
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`sufficient to uniquely determine the status of all hardware and software
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`components,” including “data in application buffers or in the disk cache of the
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`operating system, as well as the data that is on the disk.” Lim, col. 10, ll. 27-30;
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`col. 11, ll. 2-4. By disclosing the capture of all information including the data on
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`the disk, Lim discloses the capture of files. Accordingly, we are not persuaded that
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`Lim fails to disclose capturing files used by applications executing on the virtual
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`machine.
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`For these reasons, Petitioner has demonstrated that there is a reasonable
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`likelihood that it will prevail with respect to claims 1 and 12 based on the ground
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`that these claims are anticipated by Lim.
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`b. Claims 11 and 22
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`We have reviewed Petitioner’s analysis in relation to dependent claims 11
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`and 22. Patent Owner does not argue claims 11 and 22 separately from claims 1
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`and 12. We find Petitioner’s arguments reasonable with respect to claims 11 and
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`22. Therefore, we determine that Petitioner has demonstrated that there is a
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`reasonable likelihood that it will prevail with respect to claims 11 and 22 based on
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`the ground that this claim is anticipated by Lim.
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`C. Anticipation by VMware ESX of claims 1, 11, 12, and 22
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`1. Overview of VMware ESX
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`VMware ESX provides a user’s manual for installing and configuring the
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`VMware ESX Server, including how to create and provision virtual machines and
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`how to manage virtual machines. VMware ESX 18. VMware ESX discloses that
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`a virtual machine can be suspended at any desired point in its operation and then
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`later resumed at that same state. VMware ESX 97. In order to capture the state of
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`a virtual machine, VMware ESX discloses storing information in two files: (1) an
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`.std file, which “contains the entire state of the virtual machine,” and (2) a redo-log
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`file (.redo file) used to save changes while the virtual machine is operation.
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`VMware ESX 58, 97-98, 149. Furthermore, VMware ESX describes that the .std
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`file and the .redo file can be stored locally or remotely. See VMware ESX 97, 106.
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`VMware ESX discloses the creation of a redo log (.redo file), which
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`“contains the incremental changes to the disk image.” VMware ESX 106.
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`Furthermore, VMware ESX discloses that the ESX server captures changes during
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`a working session in redo log and “continually adds changes to the redo log until
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`you remove the redo-log file or commit the changes using the commit command.”
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`VMware ESX 39.
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`2. Analysis
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`a. Claims 1 and 12
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`Claims 1 and 12 require “copy[ing] at least a portion of the state to a
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`destination separate from a storage device to which the first virtual machine is
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`suspendable.” Petitioner argues that VMware ESX describes copying to a separate
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`storage device by “disclosing that the .redo file can be copied to a remote location:
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`‘The redo log can . . . be transported to a remote site and copied to the SCSI disk’
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`of the remote site.” Pet. 19 (quoting VMware ESX 106). Patent Owner generally
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`argues, however, that while VMware ESX discusses the possibility of suspending
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`the virtual machine and saving its state to different possible storage devices,
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`VMware ESX fails to disclose copying at least a portion of the captured state
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`destination separate from a storage device on which the state is stored when the
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`virtual machine is suspended. Prelim. Resp. 31. Specifically, Patent Owner makes
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`two arguments with respect to the required claim limitation of copying to a
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`“destination separate.”
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`First, Patent Owner argues that VMware ESX fails to provide disclosure
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`matching Patent Owner’s proposed construction for the claimed phrase “copy[ing]
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`at least a portion of the state to a destination separate from a storage device to
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`which the first virtual machine is suspendable.” Prelim. Resp. 31. As stated
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`above, we do not adopt Patent Owner’s proposed claim construction, and we
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`determine that the phrase “copy[ing] at least a portion of the state to a destination
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`separate from a storage device to which the first virtual machine is suspendable”
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`means “copy[ing] at least a portion of the state to a destination separate from a
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`storage device on which the state of the first virtual machine is stored when the
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`first virtual machine is suspended.” Accordingly, VMware ESX need not disclose
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`choosing a destination for copying based on where the previous copy of the virtual
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`disk resides, as argued by Patent Owner, but VMware ESX must merely disclose
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`copying a portion of the state to a destination separate from the suspend storage
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`device.
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`Second, Patent Owner argues that VMware ESX fails to disclose copying to
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`a “destination separate from a storage device” but discloses that the captured state
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`is stored at the location where it is suspended. Prelim. Resp. 31-32. We are not
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`persuaded by Patent Owner’s argument. VMware ESX discloses that at least a
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`portion of the state can be stored in a variety of locations, including locations
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`separate from the device storing the suspended virtual machine. See VMware ESX
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`97, 106. For example, VMware ESX discloses that the .redo file containing the
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`changes to the disk image can be “transported to a ‘remote site.’” VMware ESX
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`106. Accordingly, we are not persuaded by Patent Owner’s argument that
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`VMware ESX fails to disclose copying “at least a portion of the state to a
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`destination separate from a storage device to which the first virtual machine is
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`suspendable,” as required by claims 1 and 12.
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`Patent Owner further contends that the “remote site” disclosed in VMware
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`ESX is not remote at all. Prelim. Resp. 34. However, Patent Owner fails to
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`provide any citations to VMware ESX that indicate that the disclosure there of a
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`“remote site” is anything other than remote or, in other words, distant from the
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`local device onto which the virtual machine is suspended.
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`For these reasons, Petitioner has demonstrated that there is a reasonable
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`likelihood that it will prevail with respect to claims 1 and 12 based on the ground
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`that these claims are anticipated by VMware ESX.
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`b. Claims 11 and 22
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`We have reviewed Petitioner’s analysis in relation to dependent claims 11
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`and 22. Patent Owner does not argue claims 11 and 22 separately. We find
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`Petitioner’s arguments reasonable with respect to claims 11 and 22. Therefore, we
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`determine that Petitioner has demonstrated that there is a reasonable likelihood that
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`it will prevail with respect to claims 11 and 22 based on the ground that this claim
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`is anticipated by VMware ESX.
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`D. Anticipation by VMware GSG of claims 1, 11, 12, and 22
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`1. Overview of VMware GSG
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`Like VMware ESX, VMware GSG provides a user guide related to the
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`VMware software for implementing virtual machines. VMware GSG 1-1.
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`VMware GSG is titled “Getting Started Guide – Vmware 2.0 for Linux” and
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`describes how to install, configure, and manage VMware 2.0 on computer systems
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`executing the Linux operating system. VMware GSG 1-1. Similar to VMware
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`ESX described above, VMware GSG discloses the ability to suspend and store
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`virtual machines. VMware GSG 2-5 (“[u]sing Suspend and Instant Restore . . .
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`[y]ou can save the current state of your virtual machine.”). Specifically, VMware
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`GSG discloses that “[s]uspend to disk allows you to save the current state of a
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`virtual machine across reboots of your host operating system” so that without
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`having to wait for the virtual machine to boot “you can quickly pick up work right
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`where you stopped, with all the applications and documents you were working on
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`open and ready for use.” VMware GSG 3-25.
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`VMware GSG further discloses that the “state of a virtual machine can be
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`saved to disk or memory.” VMware GSG 3-25. “If you suspend to memory, the
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`saved state of the virtual machine is available as long as the virtual machine is
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`powered on,” and “[i]f you suspend a virtual machine to disk, you may power off
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`after suspending.” VMware GSG 3- 25.
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`2. Analysis
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`Patent Owner does not argue against Petitioner’s challenge of anticipation
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`based VMware GSG separately from the challenge based on VMware ESX, but
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`rather argues them jointly. See Prelim. Resp. 27-38. Accordingly, Patent Owner
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`argues that VMware GSG does not anticipate independent claims 1 and 12 for the
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`same reasons as VMware ESX, namely, that VMware GSG fails to disclose
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`copying at least a portion of the captured state to a destination separate from a
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`storage device on which the state is stored when the virtual machine is suspended.
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`Prelim. Resp. 27-28, 34-35. We are not persuaded by Patent Owner’s arguments.
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`As does VMware ESX, VMware GSG discloses that a .redo log file is created to
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`save changes while the virtual machine is in operation. Pet. 24 (citing VMware
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`GSG 3-9 (“Writes to the disk are logged [] in a redo log file. While the VMware
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`session is running, disk blocks that have been modified and written to the redo log
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`are read from there instead of the disk.”)). Furthermore, VMware GSG discloses
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`that “[t]he redo log file is placed in the same directory as the disk file by default.
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`However, the location of the redo log file can be changed in the Configuration
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`Editor under Misc.” VMware GSG 3-9 (emphasis added). Accordingly, we are
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`not persuaded by Patent Owner’s argument, and determine that VMware GSG
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`discloses that the .redo file (“at least a portion of the state”) can be stored at a
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`destination separate from a storage device on which the state is stored when the
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`virtual machine is suspended, as required by independent claims 1 and 12.2
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`For the reasons above, we determine that Petitioner has demonstrated that
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`there is a reasonable likelihood that it will prevail with respect to claims 1, 11, 12,
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`and 22 based on the ground that these claims are anticipated by VMware GSG.
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`E. Anticipation by Suzaki of claims 1, 11, 12, and 22
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`1. Overview of Suzaki
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`Suzaki is titled “Checkpoint for Network Transferable Computer,” and it
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`describes a system, which enables the transfer of the running OS image (Snapshot)
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`2 Patent Owner does not argue dependent claims 11 and 22 separately.
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`to another machine through the use of a virtual machine. Suzaki 1. Suzaki
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`discloses that the prior art had to stop the virtual machine to get the snapshot
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`because the snapshot was taken in hibernation, but the “new version enables the
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`taking of the snapshot without stopping the virtual machine.” Suzaki 1. Suzaki
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`discloses that “‘Network transferable computer’ [1] is a system that makes it
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`possible to continue working at home without physically bringing a computer from
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`your office.” Suzaki 2. Figure 1 of Suzaki is reproduced below:
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`Suzaki Figure 1
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`Suzaki discloses taking a “snapshot” of “your office computer and recreating what
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`you were doing on it on your home computer based on the executable image.”
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`Suzaki 2. For example, Suzaki discloses that “[i]t is possible to pause a
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`QuickTime movie on an X Window machine and continue to play it on another
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`machine.” Suzaki 2. An example of movie playback process is illustrated in
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`Figure 3 of Suzaki reproduced below:
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`Suzaki Figure 3
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`Suzaki discloses that its system makes it “possible to pause a QuickTime movie
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`played by XAnim on a desktop computer, transfer the execution image via network
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`or a PC card to a notebook computer, and resume the movie (FIG. 3).” Suzaki 5.
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`Additionally, Suzaki discloses that the “[c]heckpoint function makes it
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`possible to save current state information without stopping the execution of the
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`process.” Suzaki 5. Furthermore, Suzaki discloses that the “‘[n]etwork
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`transferable computer’ not only transfers a disk image but can also recreate the
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`same OS environment on another computer.” Suzaki 3.
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`2. Analysis
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`Petitioner argues that Suzaki’s process of checkpointing and transferring the
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`state of a virtual machine discloses the claimed steps of capturing state information
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`of a virtual machine and copying the state information to a separate destination.
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`Pet. 30. Petitioner additionally argues that Suzaki describes the required capturing
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`state corresponding to a point in time of execution by disclosing that it is possible
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`to capture the virtual machine during playback of a movie, transfer the state of the
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`virtual machine, and continue to play the movie on another machine. Pet. 30
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`(citing Suzaki 2 (“’[i]t is possible to pause a QuickTime movie on an X Window
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`machine and continue to play it on another machine.’”).
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`Patent Owner argues that Suzaki discloses that its Software Suspend
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`(“SWSUP”) patch, cited by Petitioner as capturing the state of the virtual machine,
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`does not capture the state at a “point in time in time of the execution of the first
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`virtual machine,” as required by claims 1 and 12. Prelim. Resp. 39. Patent Owner
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`argues that the SWSUP patch in Suzaki “kills” processes one at a time during
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`capture, and thus the state of second process would be captured at a different point
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`in time than the state of a first process. Prelim. Resp. 40.
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`We are not persuaded by Patent Owner’s argument that Suzaki discloses
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`such an incremental capture process. Patent Owner specifically argues that the
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`“[t]he SWSUSP patch ‘consists of a Linux kernel patch,’ which enables a
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`shutdown process to ‘kill’ processes as the state information for each process is
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`captured.” Prelim. Resp. 39 (citing Suzaki 4). Contrary to Patent Owner’s
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`arguments, the cited portions of Suzaki do not disclose “killing” processes one-by-
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`one to capture their state. Suzaki discloses that a Checkpoint is created when the
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`SWSUP patch “[m]oves all the state information to nonvolatile memory such as
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`hard disks and turns off a computer.” Suzaki 4. Suzaki discloses that the
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`Checkpoint “enables another virtual computer to resume the operation from the
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`point at which Checkpoint was executed.” Suzaki 5 (emphasis added).
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`Accordingly, we are not persuaded that Suzaki fails to disclose capture of the state
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`of the virtual machine at a particular point in time.
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`For these reasons, Petitioner has demonstrated that there is a reasonable
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`likelihood that it will prevail with respect to claims 1 and 12 based on the ground
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`that these claims are anticipated by Suzaki.
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`F. Obviousness of claims 11and 22 over Suzaki and Wang
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`1. Overview of Wang
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`Wang is titled “Integrating Checkpointing with Transaction Processing” and
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`discloses a transactional Unix-file manager. Wang 304. Wang discloses that its
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`Unix-file manager is enabled to “implement per-application transactional file
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`updates” and provides a “transactional critical-memory manager” for
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`checkpointing memory. Wang. 304, 306. Wang further discloses that its process
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`of checkpointing involves “recording critical memory and file state at a given point
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`of program execution on stable storage.” Wang 304.
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`As part of the transactional file update process, Wang discloses that an
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`“UNDO log” is created. Wang 306. Specifically, Wang discloses that “[e]very
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`file update operation is intercepted by libfcp_RM, and an idempotent undo
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`operation is added to the UNDO log.” Wang 306.
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`2. Analysis
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`Petitioner argues that dependent claims 11 and 22 are obvious in view of
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`Suzaki and Wang. Petitioner concedes that Suzaki fails to disclose “creating a new
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`log of uncommitted updates,” as required by claim 11, but relies upon the
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`combination of Wang as teaching or suggesting this claim limitation. Pet. 33-34.
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`More particularly, Petitioner argues that the claim is made obvious by Wang’s
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`teaching of the creation of an UNDO log. Pet. 35. Petitioner argues that “[e]ach of
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`the operations in the UNDO log corresponds to u