Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper 17
`Entered: October 8, 2013
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`VEEAM SOFTWARE CORPORATION
`Petitioner
`
`v.
`
`SYMANTEC CORPORATION
`Patent Owner
`_______________
`Case IPR2013-00150
`Patent 7,093,086
`_______________
`
`Before THOMAS L. GIANNETTI, SCOTT E. KAMHOLZ, and
`TRENTON A. WARD, Administrative Patent Judges.
`
`
`WARD, Administrative Patent Judge.
`
`
`
`DECISION
`Patent Owner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`Tel: 571-272-7822
`
`
`Paper 17
`Entered: October 8, 2013
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`VEEAM SOFTWARE CORPORATION
`Petitioner
`
`v.
`
`SYMANTEC CORPORATION
`Patent Owner
`_______________
`Case IPR2013-00150
`Patent 7,093,086
`_______________
`
`Before THOMAS L. GIANNETTI, SCOTT E. KAMHOLZ, and
`TRENTON A. WARD, Administrative Patent Judges.
`
`
`WARD, Administrative Patent Judge.
`
`
`
`DECISION
`Patent Owner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`I.
`
`IPR2013-00150
`Patent 7,093,086
`
`INTRODUCTION
`Patent Owner Symantec Corporation filed a request for rehearing (Paper 12)
`of the Board’s decision, dated Aug. 7, 2013 (Paper 10), which instituted inter
`partes review of claims 1, 11, 12, and 22 of U.S. Patent 7,093,086. Patent Owner
`contends that the Board should not have instituted review of claims 11 and 22 as
`obvious over “Checkpoint for Network Transferable Computer” by Suzaki (Exs.
`1007-1009) (“Suzaki”) and “Integrating Checkpointing with Transaction
`Processing” by Wang (Ex. 1010) (“Wang”). Req. Reh’g. 2. For the reasons stated
`below, Patent Owner’s request is denied.
`
`II. STANDARD OF REVIEW
`Under 37 C.F.R. § 42.71(c), “[w]hen rehearing a decision on petition, a
`panel will review the decision for an abuse of discretion.” An abuse of discretion
`occurs when a “decision was based on an erroneous conclusion of law or clearly
`erroneous factual findings, or . . . a clear error of judgment.” PPG Indus. Inc. v.
`Celanese Polymer Specialties Co. Inc., 840 F.2d 1565, 1567 (Fed. Cir. 1988)
`(citations omitted). The request must identify, specifically, all matters the party
`believes the Board misapprehended or overlooked. 37 C.F.R. § 42.71(d).
`
`III. DISCUSSION
`Patent Owner argues that the Board overlooked Patent Owner’s argument in
`the Preliminary Response contesting Petitioner’s challenge based on Suzaki and
`Wang. Req. Reh’g. 2. More particularly, Patent Owner argued: (1) that the
`combination of Suzaki and Wang failed to teach each and every limitation in
`claims 11 and 22 and (2) that the alleged combination was improper. Prelim. Resp.
`46-48; Req. Reh’g. 4. The Board agrees that it overlooked Patent
`
`
` 2
`
`
`
`
`
`
`
`IPR2013-00150
`Patent 7,093,086
`
`Owner’s arguments regarding the combination of Suzaki and Wang and addresses
`these arguments below. In sum, we nonetheless conclude that the overlooked
`arguments do not cause us to reach a different conclusion as to the adequacy of the
`Petitioner’s challenges at issue here.
`First, Patent Owner argues that the combination of Suzaki and Wang does
`not satisfy all of the limitations of challenged claims 11 and 22 because it fails to
`teach or suggest “creating a new log of uncommitted updates.” Prelim. Resp. 47;
`Req. Reh’g. 7. Specifically, Patent Owner argues that the UNDO logs in Wang do
`not capture updates as required by the claims and instead store prior disk data for
`the purpose of rolling back to a previous version. Id.
`We are not persuaded by Patent Owner’s argument. Wang discloses that its
`process of checkpointing involves “recording critical memory and file state at a
`given point of program execution on stable storage.” Dec. 20 (quoting Wang 304).
`Furthermore, Wang discloses that an UNDO log is created as part of the
`transactional file update process. Id. (citing Wang 306). Thus, the UNDO log is a
`log of updates. See Id. Accordingly, we are not persuaded by Patent Owner’s
`argument that Suzaki in combination with Wang fails to teach or suggest “creating
`a new log of uncommitted updates,” as recited in claims 11 and 22.
`Second, Patent Owner argues that Suzaki and Wang are not properly
`combinable because Suzaki relies upon the operating system to capture the state of
`a virtual machine, while Wang relies upon an application to capture state
`information. Prelim. Resp. 46; Req. Reh’g. 5-6. Furthermore, Patent Owner
`argues that Wang teaches that files updated by an application are not shared by
`another application and Suzaki’s system requires a sharing of resources. Prelim.
`Resp. 46; Req. Reh’g. 6.
`
` 3
`
`
`
`
`
`
`
`IPR2013-00150
`Patent 7,093,086
`
`We are, again, not persuaded by Patent Owner’s arguments. Petitioner relies
`upon Wang for the limited teaching of creating an UNDO log as part of the
`checkpointing process (Pet. 35 (citing Wang 304, 306)); that Wang happens to
`disclose the UNDO log in the context of an application rather than an operating
`system is of no moment. Petitioner’s argument that it would have been obvious to
`combine Suzaki and Wang is reasonable and supported by record evidence (see
`Dec. 20-21), and Patent Owner’s arguments fails to persuade us otherwise.
`Patent Owner has not demonstrated an abuse of discretion in instituting an
`inter partes review of claims 11 and 22 on the ground of obviousness in view of
`Suzaki and Wang.
`
`IV. CONCLUSION
`The Board denies the relief requested in the request for rehearing.
`
`V. ORDER
`Accordingly, it is hereby
`ORDERED that Patent Owner’s request for rehearing is denied.
`
`
`
`
`
`
` 4
`
`
`
`
`
`
`
`IPR2013-00150
`Patent 7,093,086
`
`For PETITIONER:
`Lori A. Gordon
`Michael Q. Lee
`Byron L. Pickard
`STERNE, KESSLER, GOLDSTEIN
`& FOX PLLC
`lgordon-PTAB@skgf.com
`mlee-PTAB@skgf.com
`bpickard-ptab@skgf.com
`
`
`
`
`
`For PATENT OWNER:
`
`Joseph J. Richetti
`Lawrence G. Kurland
`BRYAN CAVE LLP
`joe.richetti@bryancave.com
`lgkurland@bryancave.com
`
`
` 5
`
`
`
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
