Filed on behalf of Symantec Corporation
`
`Case IPR2013-00150
`U.S. Patent No. 7,093,086
`
`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
`U.S. Patent No. 7,093,086
`
`SYMANTEC CORPORATION’S OPPOSITION TO VEEAM SOFTWARE
`CORPORATION’S MOTION TO COMPEL THE DEPOSITION
`OF VMWARE ON THE PUBLIC AVAILABILITY OF EXHIBIT 1005
`
`
`
`Case IPR2013-00150
`U.S. Patent No. 7,093,086
`
`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
`U.S. Patent No. 7,093,086
`
`SYMANTEC CORPORATION’S OPPOSITION TO VEEAM SOFTWARE
`CORPORATION’S MOTION TO COMPEL THE DEPOSITION
`OF VMWARE ON THE PUBLIC AVAILABILITY OF EXHIBIT 1005
`
`
`
`TABLE OF CONTENTS
`
`Case IPR2013-00150
`U.S. Patent No. 7,093,086
`
`I.
`
`PETITIONER HAS FAILED TO SHOW THAT THE ESX MANUAL
`WAS PUBLICLY ACCESSIBLE PRIOR TO THE ‘086 PATENT..............2
`
`A.
`
`B.
`
`C.
`
`Veeam’s Petition ...................................................................................3
`
`Veeam’s Supplemental Evidence..........................................................5
`
`The Evidence Suggests That The VMware ESX 1.0 Manual Was Not
`Publicly Accessible Prior To The ‘086 Patent......................................8
`
`II.
`
`THE VMWARE ESX 1.0 MANUAL IS CUMULATIVE OF THE
`VMWARE GSG REFERENCE ..................................................................11
`
`III.
`
`THE GARMIN FACTORS .........................................................................13
`
`IV. CONCLUSION..............................................................................................15
`
`i
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`Case IPR2013-00150
`U.S. Patent No. 7,093,086
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`TABLE OF AUTHORITIES
`
`CASES
`
`CNET Networks, Inc. v. Etilize, Inc.,
`584 F. Supp. 2d 1260 (N.D. Cal. 2008).................................................................3
`
`Garmin Int’l, Inc. et al. v. Cuozzo Speed Tech. LLC,
`IPR2012-00001, No. 26 (Mar. 5, 2013)...............................................................13
`
`In re Lister,
`583 F.3d 1307 (Fed. Cir. 2009)..............................................................................4
`
`Mannesmann Demag Corp. v. Engineered Metal Products Co., Inc.,
`605 F. Supp. 1362, 1366-67 (D. Del. 1985),
`aff’d, 793 F.2d 1279 (Fed. Cir. 1986).....................................................................3
`
`Neutrino Dev ‘t Corp. v. Sonosite Inc.,
`337 F. Supp. 2d 942, 947 (S.D. Tex. 2004), aft d, 210 Fed. Appx. 991
`(Fed. Cir. 2006) ......................................................................................................3
`
`STATUTES AND RULES
`
`35 U.S.C.A. § 311(b) (West) .................................................................................2, 4
`
`35 U.S.C.A. § 316(a)(5) (West)...............................................................................13
`
`ii
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`Case IPR2013-00150
`U.S. Patent No. 7,093,086
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`LIST OF EXHIBITS
`
`Symantec
`Exhibit No.
`
`Document Description
`
`Symantec 2001
`
`Office Action, dated April 11, 2005
`
`Symantec 2002
`
`Appeal Brief, dated July 19, 2005
`
`Symantec 2003
`
`Response to Office Action, dated November 14, 2005
`
`Symantec 2004
`
`Supplemental Notice of Allowability, dated July 6, 2016
`
`Symantec 2005
`
`Symantec Corp. v. Veeam Software Corp., Civil Action No.
`3:12cv700 (Dkt. 105), Claim Construction Order, dated
`March 8, 2013
`
`Currently Filed
`
`Symantec 2006
`
`Patent Owner’s Objections to Petitioner’s Evidence Pursuant
`to 37 C.F.R. § 42.64(b)(1)
`
`Symantec 2007
`
`Declaration of Daniel Block, dated September 5, 2013
`
`Symantec 2008
`
`Symantec 2009
`
`Symantec 2010
`
`Symantec 2011
`
`Symantec 2012
`
`Patent Owner’s Objections to Petitioner’s Supplemental
`Evidence Pursuant to 37 C.F.R. § 42.64(b)(1)
`
`Email requesting permission to file motion to amend, dated
`October 21, 2013
`
`Internet Archive webpage titled “Download VMware
`Products” captured from VMware website, dated June 23,
`2001
`
`Internet Archive webpage titled “Download VMware
`Products” captured from VMware website, dated June 23,
`2001
`
`Internet Archive webpage titled “VMware Server Products
`Ordering Information” captured from VMware website, dated
`October 7, 2001
`
`iii
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`U.S. Patent No. 7,093,086
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`Symantec 2013
`
`Symantec 2014
`
`Internet Archive webpage titled “Evaluate VMware ESX
`Servicer” captured from VMware website, dated June 8, 2001
`
`Garmin Int’l, Inc. et al. v. Cuozzo Speed Tech. LLC, IPR2012-
`00001, No. 26 (Mar. 5, 2013), Decision
`
`iv
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`Case IPR2013-00150
`U.S. Patent No. 7,093,086
`Petitioner’s Motion to Compel falls far short of meeting the heightened
`
`standard applicable in this inter partes review proceeding. Petitioner’s requested
`
`discovery centers around the parties’ dispute as to whether Petitioner has shown
`
`that a software user manual relied upon in the Petition, namely: VMware’s ESX
`
`Server User’s Manual Version 1.0 (VEEAM 1005, “VMware ESX 1.0 Manual”)
`
`was publicly accessible prior to the date of invention of U.S. Patent No. 7,093,086
`
`(“the ‘086 Patent”). Patent Owner first raised this issue in its Preliminary
`
`Response, filed on May 20, 2013. (Paper No. 9 at p. 7-9). Despite having more
`
`than 5 months and ample opportunities to cure this deficiency, Petitioner has
`
`failed to provide sufficient evidence that this manual was disseminated to the
`
`public. In fact, as discussed below, the evidence that has been provided by
`
`Petitioner to date actually supports the opposite conclusion.
`
`Moreover, as recognized by the Board, and even Petitioner’s own expert
`
`witness, the relevant teachings of the VMware ESX 1.0 Manual are substantially
`
`similar to those of another VMware user manual, the VMware Getting Started
`
`Guide For Linux (VEEAM 1006, “VMware Guide”), which is also relied upon
`
`by the Petitioner in this proceeding. Petitioner argues, however, that the
`
`VMware Guide is not substantially similar to VMware ESX 1.0 Manual even
`
`though trial has been instituted for all of the challenged claims (claims 1, 12, 14,
`
`15) based on this VMware Guide on the same grounds that Petitioner is seeking
`
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`Case IPR2013-00150
`U.S. Patent No. 7,093,086
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`to advance using the VMware ESX 1.0 Manual. Thus, even if successful, the
`
`requested discovery would merely result in Petitioner relying on another
`
`cumulative and redundant VMware document.
`
`Furthermore, Petitioner’s cursory discussion of the Garmin Factors is
`
`unpersuasive and, as discussed below, at least two of these factors weigh against
`
`granting the requested discovery. Thus, for at least these reasons, the Board
`
`should deny Petitioner’s Motion. Additionally, unless the Board rules, based on
`
`these papers, that the VMware ESX 1.0 Manual be removed from the proceeding,
`
`Symantec respectfully requests permission to file a motion to exclude.1
`
`I.
`
`PETITIONER HAS FAILED TO SHOW THAT THE ESX MANUAL
`WAS PUBLICLY ACCESSIBLE PRIOR TO THE ‘086 PATENT
`An inter partes review may be requested “only on the basis of prior art
`
`consisting of patents or printed publications.” 35 U.S.C. § 311(b). In particular,
`
`for references relied on as printed publications, Petitioner must show, among other
`
`things, that they were published or otherwise disseminated to the public. With
`
`respect to the VMware ESX 1.0 Manual, Petitioner has failed to do so.
`
`1 While the second section of Petitioner’s Motion is titled “Background Facts,” this
`
`section makes up more than half of the 14-page motion and presents numerous
`
`arguments and assertions. For the sake of clarity, however, Patent Owner does not
`
`admit any such “facts” unless expressly indicated otherwise in this Opposition.
`
`2
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`U.S. Patent No. 7,093,086
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`A.
`
`Veeam’s Petition
`
`In its Petition, Veeam relied on the 2001 copyright date which appears on
`
`only page 2 of the VMware ESX 1.0 Manual in an attempt to support its
`
`conclusion that this document is a printed publication and, therefore, qualifies as
`
`prior art under §102(a). Paper No. 2, “Petition” at 6. It is well settled, however,
`
`that a party cannot rely on a date included on a document to demonstrate that it
`
`was accessible to the relevant public. See, e.g., Mannesmann Demag Corp. v.
`
`Engineered Metal Products Co., Inc., 605 F. Supp. 1362, 1366-67 (D. Del. 1985),
`
`aff’d, 793 F.2d 1279 (Fed. Cir. 1986) (“[a]bsent more, the mere fact that the Demag
`
`brochure was dated, `6.77,’ is hardly evidence that the brochure was actually
`
`disseminated to the relevant public as of that date.”); Neutrino Dev ‘t Corp. v.
`
`Sonosite Inc., 337 F. Supp. 2d 942, 947 (S.D. Tex. 2004), aft d, 210 Fed. Appx. 991
`
`(Fed. Cir. 2006). Moreover, merely pointing to the word (or symbol for)
`
`“copyright” does not cure this deficiency. See, e.g., CNET Networks, Inc. v.
`
`Etilize, Inc., 584 F. Supp. 2d 1260, 1273-74 (N.D. Cal. 2008) (“find[ing] that a
`
`2001 copyright date does not prove the Liaison CE User Guide was publicly
`
`accessible prior to April 10, 2001”). Petitioner has provided no evidence that this
`
`VMware ESX 1.0 Manual was ever registered at the Copyright Office.
`
`Importantly, however, even if the ESX Manual were registered, this would
`
`not be sufficient to show that it was publicly accessible and, therefore, qualifies as
`
`3
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`U.S. Patent No. 7,093,086
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`a printed publication. See, e.g., In re Lister, 583 F.3d 1307, 1316-17 (2009)
`
`(finding that a manuscript registered with the Copyright Office was not prior art
`
`because there was insufficient evidence to show that the manuscript was publicly
`
`accessible prior to the critical date).
`
`Petitioner also cited to a web page purportedly captured by the Internet
`
`Archive WayBack Machine (VEEAM 1012) to argue that a VMware ESX product
`
`was available for purchase as of June 23, 2001. This argument is a red herring for
`
`at least two reasons. First, while the manual corresponds to version 1.0, this web
`
`page references version 1.01 of the ESX software product. As a result, even if the
`
`web page showed that version 1.01 of the ESX software product was available (as
`
`discussed below, it does not), it still would fail to show that the VMware ESX
`
`Manual 1.0 was also available, or even included with, this software product.
`
`Second, whether a product was offered for sale is irrelevant to an inter partes
`
`proceeding because these proceedings are limited solely to “patents and printed
`
`publications.” 35 U.S.C. § 311(b). Thus, the web page in VEEAM 1012 provides
`
`no proof that the specific VMware ESX 1.0 Manual in VEEAM 1005 was made
`
`available, or otherwise disseminated to the public.
`
`Accordingly, the Petition fails to show that the VMware ESX Manual 1.0
`
`qualifies as a printed publication.
`
`4
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`U.S. Patent No. 7,093,086
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`B.
`
`Veeam’s Supplemental Evidence
`
`Patent Owner initially raised the deficiency with the VMware ESX 1.0
`
`Manual in its Preliminary Response on May 20, 2013. On August 7, 2013, the
`
`Board instituted trial on certain grounds, including anticipation of each challenged
`
`claim based on (i) the VMware ESX 1.0 Manual; (ii) the VMware GSG guide; and
`
`(iii) Lim, a patent that was assigned to VMware.
`
`As provided for in the rules, on August 21, 2013, Patent Owner served its
`
`Objections to Evidence on Petitioner, objecting to the admissibility of each of the
`
`references in the trial on various ground. (Symantec Exh. 2006). In particular,
`
`Patent Owner re-raised its objection with respect to Petitioner’s failure to show
`
`that the VMware ESX 1.0 Manual qualifies as prior art, as well as the irrelevance
`
`of the Internet Archive web page (VEEAM 1012).
`
`In response, Petitioner provided supplemental evidence to Patent Owner on
`
`September 5, 2013, which included (i) a declaration from Petitioner’s back-up
`
`counsel in this IPR, Daniel Block, regarding two software “media kits” he
`
`purportedly reviewed during a visit to VMware (Symantec Exh. 2007); and (ii)
`
`declarations from Christopher Butler, an employee at Internet Archive, regarding
`
`certain web pages captured through the WayBack machine, including the web
`
`page in VEEAM 1012. (VEEAM 1021, 1022).
`
`5
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`On September 12, 2013, Patent Owner objected to Petitioner’s supplemental
`
`evidence as being irrelevant to, and/or insufficient to show, the public accessibility
`
`of the VMware ESX 1.0 Manual 1.0. (Symantec Exh. 2008). Patent Owner also
`
`objected to a number of unsupported factual statements in Mr. Block’s declaration
`
`related to VMware’s business practices and software products. In a subsequent
`
`meet-and-confer, Petitioner acknowledged that Mr. Block’s declaration was only
`
`intended to catalog materials he reviewed during his trip to VMware and, on
`
`October 4, 2013, Petitioner served a replacement Block declaration removing
`
`these paragraphs. (VEEAM 1017).
`
`Over the course of several weeks, Patent Owner worked in good faith with
`
`Petitioner in an attempt to resolve the evidentiary objections. Indeed, through a
`
`number of meet-and-confers, and Petitioner’s provision of various additional
`
`evidence regarding other references in the trial, the parties were able to resolve
`
`these objections for all of the other references without the Board’s intervention.
`
`With respect to the VMware ESX 1.0 Manual, however, Petitioner maintained its
`
`position that the evidence it provided as of September 5, 2013 was sufficient to
`
`show that this document was publicly accessible prior to the date of the ‘086
`
`Patent, and that it would not be providing any additional evidence.
`
`Accordingly, in a meet-and-confer on October 28, 2013, Patent Owner
`
`informed Petitioner that it believed the parties had exhausted all reasonable efforts
`
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`to resolve this dispute and, therefore, Patent Owner intended to request the
`
`Board’s permission to file a motion to exclude this document from the trial. (See
`
`also email, dated October 21, 2013, Symantec Exh. 2009). Only then, did
`
`Petitioner indicate that it would need to request additional discovery from the
`
`Board to show the public accessibility of the VMware ESX 1.0 Manual.
`
`In particular, Patent Owner explained that Petitioner’s supplemental
`
`evidence was insufficient to show that the VMware ESX 1.0 Manual was publicly
`
`accessible prior to the date of invention of the ‘086 Patent. For example, Mr.
`
`Block’s declaration merely alleges that one of the “media kits” he reviewed
`
`(VEEAM 1018) included a copy of this manual. Even assuming this were true,
`
`however, Petitioner provided no evidence to indicate when, if ever, this media kit
`
`was distributed to anyone, let alone disseminated to the relevant public.
`
`Moreover, the additional Internet Archive web pages included with the
`
`Butler declarations merely refer to version 1.01 of the ESX software product.
`
`Thus, like the web page in VEEAM 1012, these archived web pages, do nothing to
`
`demonstrate that the VMware ESX 1.0 Manual itself was accessible to anyone.
`
`Additionally, while these archived web pages included two documents that appear
`
`to be different versions of the ESX user manual, both documents correspond to
`
`web pages that were captured long after the filing date of invention of the ‘086
`
`Patent, namely: December 15, 2003 and April 3, 2005.
`
`7
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`Accordingly, Petitioner’s supplemental evidence (like the Petition) also fails
`
`to show that the VMware ESX Manual 1.0 qualifies as a printed publication.
`
`C.
`
`The Evidence Suggests That The VMware ESX 1.0 Manual
`Was Not Publicly Accessible Prior To The ‘086 Patent
`
`Not only is Petitioner’s evidence insufficient to meet its burden of showing
`
`that the particular VMware ESX 1.0 Manual (i.e., VEEAM 1005) was publicly
`
`available as of the filing date of the ‘086 Patent (i.e., June 23, 2001), this very
`
`same evidence (as well as related evidence previously provided by Patent Owner)
`
`actually supports the opposite conclusion. In fact, the evidence suggests that even
`
`a later version, 1.0.1, of the ESX software product, was not publicly available by
`
`that date.
`
`For example, VEEAM 1012, as well as various other Internet Archive web
`
`pages included with Petitioner’s supplemental evidence, show that various other
`
`VMware software products (including the software product associated with the
`
`VMware GSG guide)could presumably be purchased and downloaded directly
`
`through a “download” link included on these web pages. (VEEAM 1021-1025;
`
`see also Symantec 2010, 2011). In contrast, as acknowledged in Petitioner’s
`
`Motion, no such “download” link appears next to the “VMware ESX Server
`
`1.0.1” software product listed on these same web pages. Id.; see also Motion to
`
`Compel (“Motion”) at 5. In other words, unlike these other VMware products,
`
`8
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`U.S. Patent No. 7,093,086
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`version 1.0.1 of the ESX software product was not appear to have been
`
`downloadable or even purchasable through the specific www.vmware.com
`
`webpages allegedly captured through the WayBack Machine.
`
`Moreover, other archived webpages from vmware.com associated with
`
`those proffered by Petitioner (which were similarly acquired by Patent Owner
`
`through the Internet Archive WayBack Machine) further support this conclusion.
`
`In particular, the only two links shown as corresponding to the VMware ESX
`
`Server 1.0.1 product referred to in the webpages provided by Petitioner, are
`
`“Buy” and “Request Evaluation.” Importantly, both options linked to webpages
`
`instructing users to contact VMware to discuss an “evaluation copy” or “trial
`
`version” of the VMware ESX 1.0.1 software. (Symantec 2010-2013). Indeed,
`
`Petitioner admits this fact in its Motion. (See Motion at 5). Thus, these web
`
`pages suggest that a presumably later version of this ESX software product (i.e.,
`
`1.0.1) potentially required further configuration, customization, and/or evaluation
`
`and testing before it could have even been used by VMware’s customers. See
`
`also Symantec 2013 (stating that VMWare, Inc. “will contact you to develop a
`
`system configuration and test plan.”).
`
`Similarly, while Petitioner asserts that one of the archived web pages
`
`referring to the ESX software product has a link that is titled “documentation,”
`
`which allegedly “shows the availability of documentation for ESX Server v.1.01.”
`
`9
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`Petition at 5-6; see also VEEAM 1022). This, however, is not true. As
`
`acknowledged by Petitioner, this web page refers to version 1.01 of the software
`
`product and, more importantly, information corresponding to the
`
`“documentation” link was not captured by the WayBack Machine because, as
`
`stated on the webpage, this link was “password protected.” Id. Thus, there is
`
`nothing to indicate what “documentation,” if any, would have even been provided
`
`to a user in response to selecting this link, let alone that it would have been the
`
`particular VMware ESX 1.0 Manual. Moreover, given that this link was
`
`“password protected,” Petitioner’s argument that it shows that any such
`
`documentation was publicly accessible is unreasonable. Once again, this is in
`
`direct contrast with various other VMware software products shown on the
`
`archived vmware.com webpages (including the software associated with VMware
`
`GSG), for which the “documentation” links did not require any password and
`
`appear to have linked directly to a page showing the document itself. (VEEAM
`
`1021, 1022).
`
`In addition, as can be seen from similar archived vmware.com webpages
`
`that were captured by the WayBack Machine after the filing date of the ‘086
`
`Patent, certain versions of the ESX software product referred to on these later
`
`webpages included a “download” link that presumably allowed users to directly
`
`download the software itself. (VEEAM 1021, 1022). These later webpages
`
`10
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`included a “documentation” link that was not password protected and appears to
`
`have allowed users to access a version of the ESX user manual. Id.
`
`Accordingly, these archived vmware.com webpages suggest that neither
`
`the VMware ESX 1.0 Manual, nor even later versions of the ESX Server software
`
`product, were accessible to the public as of the filing date of the ‘086 Patent.
`
`II.
`
`THE VMWARE ESX 1.0 MANUAL IS CUMULATIVE OF THE
`VMWARE GSG REFERENCE
`
`The VMware ESX 1.0 Manual and the VMware GSG reference are both by
`
`VMware, describe the same material features in VMware’s software products, and
`
`are applied by Petitioner, its expert, and the Board, in a virtually identical manner
`
`against the challenged claims of the ‘086 Patent. (Petition at 15-28; VEEAM
`
`1002 at 16; Paper No. 10 at 15). Petitioner is also relying on both of these
`
`VMware manuals on the same ground (i.e., anticipation) for the same claims.
`
`Nevertheless, Petitioner now asserts that VMware GSG is “insufficient,” and
`
`seeks additional discovery in order to rely on another redundant VMware manual.
`
`Importantly, the alleged distinctions between these two VMware documents
`
`advanced by Petitioner are irrelevant to the challenged claims. While some
`
`differences may exist between the software products described in these references,
`
`they are not pertinent to any of the arguments raised by Petitioner with respect to
`
`11
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`the challenged claims. 2 For example, the independent claims of the ‘086 Patent
`
`generally require two steps: (i) capturing a state of a virtual machine, and (ii)
`
`copying at least a portion of the state to a separate destination. ‘086 Patent, claims
`
`1 and 12. As to the first step, Petitioner relies on the same disclosure in both
`
`references to capture the state of a virtual machine, including through a redo log.
`
`Petition at 17, 22-23; VEEAM 1002 at 13-15. Petitioner does not advance any
`
`argument to the contrary in its Motion.
`
`With respect to the second step, Petitioner relies on similar disclosures in
`
`both references pertaining to the location where the redo log is saved. Petition at
`
`17, 22-23; VEEAM 1002 at 13-15. Petitioner attempts to marshal a ‘material’
`
`distinction by overstating the difference in wording used to describe where the
`
`redo log is stored. See Motion at 12-13. Importantly, Petitioner characterized
`
`both disclosures as showing a different destination, one being a “remote location”
`
`and the other being “a disk,” yet Petitioner equates them by claiming that they are
`
`both destinations for the redo log that are separate from the memory where the
`
`2 The main difference identified by Petitioner as “pertinent” is essentially: one
`
`reference (ESX Manual) describes a server product while the other (GSG)
`
`describes a desktop product. Motion at 6-8. Notably, Veeam is completely silent
`
`as to how this distinction has any bearing on the ‘086 Patent claims.
`
`12
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`virtual machine is suspendable. Petition at 19, 26. This does not render the
`
`disclosures meaningfully different. Both teachings pertain to the location where
`
`the same redo log is saved and, as Petitioner acknowledges, are applied in a
`
`similar manner against the same element of claims 1 and 12. Motion at 6.
`
`The foregoing demonstrates that the relevant teachings of the VMware ESX
`
`1.0 Manual and the VMware GSG reference are cumulative and redundant.
`
`Indeed, the portions of the VMware ESX 1.0 Manual that are relied on by
`
`Petitioner are repetitive of VMware GSG, and do not add any information that is
`
`relevant to any of the challenged claims. Thus, for this reason alone, the Board
`
`should deny Petitioner’s Motion and exclude the VMware ESX 1.0 Manual.
`
`III. THE GARMIN FACTORS
`
`Veeam has failed to meet its burden of showing that the additional
`
`discovery it is seeking satisfies the stringent standard of being “necessary in the
`
`interests of justice.” 35 U.S.C. § 316(a)(5); see also Garmin Int’l, Inc. et al. v.
`
`Cuozzo Speed Tech. LLC, IPR2012-00001, No. 26 (Mar. 5, 2013). The Board
`
`considers five factors to determine if the standard is met. See Garmin at 5
`
`(Symantec 2014). Two essential factors the Board should consider are whether
`
`Veeam has had the ability to generate equivalent information by other means and
`
`whether there is more than a possibility and mere allegation that something
`
`“useful” will be found. Id. Veeam fails both requirements.
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`As discussed above, Symantec has complied with the rules and procedures
`
`set forth for objecting to evidence in an inter partes review proceeding. In
`
`particular, Symantec raised its objection at the first opportunity (i.e., its
`
`Preliminary Response) and followed-up in its Objections served within 10 days
`
`after institution of the trial. Accordingly, as set forth in the rules, the proper
`
`procedure at this stage is for Symantec to move to exclude.
`
`Moreover, even after Veeam served its Supplemental Evidence, Symantec
`
`gave Veeam multiple opportunities to remedy the deficiencies with the VMware
`
`ESX 1.0 Manual. Veeam has consistently maintained that the evidence it has
`
`already provided is sufficient. In fact, Veeam continues to take this position in its
`
`Motion. Motion at 3-4, 10 (“The evidence of record shows public availability.”).
`
`Thus, Veeam’s conclusory assertion that it has not had the “ability to generate
`
`equivalent information by other means’” is untenable. Motion at 10.
`
`In addition, Veeam’s assertion that it has “already produced evidence
`
`showing ‘more than a possibility and mere allegation’ that the [requested]
`
`deposition will result in finding something useful,” is contradicted by the fact that
`
`it is unaware whether anyone at VMware will be able to provide the information
`
`necessary to show that the VMware ESX 1.0 Manual was publicly accessible
`
`before the date it is asserting. For example, Veeam merely states that it “expects
`
`VMware’s testimony to corroborate” the date on the document, and that “VMware
`
`14
`
`
`
`Case IPR2013-00150
`U.S. Patent No. 7,093,086
`
`should be able to testify that it made its ESX Manual available to the public in
`
`2001.” Motion at 1, 2 (emphasis added). However, Veeam’s speculation, without
`
`more is precisely the type of discovery the rules intended to exclude. Moreover,
`
`while Veeam identifies a particular individual at VMware (i.e., Dan Scales) for the
`
`requested deposition, Veeam states that this is “[s]ubject to VMware proffering a
`
`more knowledgeable witness.” Motion at 1, fn. 1.
`
`Accordingly, Veeam’s ample opportunities to cure the deficiencies in its
`
`evidence and its mere “expectations” regarding what someone at VMware “should
`
`be able” to say militate against granting the requested additional discovery or that
`
`it is “necessary in the interests of justice.”
`
`IV. CONCLUSION
`
`In view of the foregoing, Symantec respectfully requests that the Board
`
`deny Veeam’s motion and exclude the VMware ESX 1.0 Manual.
`
`Date: November 8, 2013
`
`Respectfully submitted,
`By: /Joseph J. Richetti, Reg. No. 47024/
`Joseph J. Richetti, Reg. No. 47,024
`Lawrence G. Kurland, Reg. No. 24,895
`BRYAN CAVE LLP
`1290 Avenue of the Americas
`New York, NY 10104
`General Tel: (212) 541-2000
`Direct Tel: (212) 541-1092
`Fax: (212) 541-4630
`Email: joe.richetti@bryancave.com
`Attorneys for Patent Owner – Symantec Corporation
`
`15
`
`
`
`Case IPR2013-00150
`U.S. Patent No. 7,093,086
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that the foregoing SYMANTEC
`
`CORPORATION’S OPPOSITION TO VEEAM SOFTWARE CORPORATION’S
`
`MOTION TO COMPEL THE DEPOSITION OF VMWARE ON THE PUBLIC
`
`AVAILABILITY OF EXHIBIT 1005 was served electronically via e-mail on
`
`November 8, 2013, in its entirety on the following:
`
`Lori A. Gordon
`STERNE, KESSLER, GOLDSTEIN
`& FOX P.L.L.C
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3932
`lgordon-PTAB@skgf.com
`
`Michael Q. Lee
`STERNE, KESSLER, GOLDSTEIN
`& FOX P.L.L.C
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3932
`mlee-PTAB@skgf.com
`
`Respectfully submitted,
`
`By: /Joseph J. Richetti, Reg. No. 47024/
`Joseph J. Richetti
`Lead Attorney for Patent Owner
`Reg. No. 47,024
`BRYAN CAVE LLP
`1290 Avenue of the Americas
`New York, NY 10104
`General Tel: (212) 541-2000
`Direct Tel: (212) 541-1092
`Fax: (212) 541-4630
`Email: joe.richetti@bryancave.com
`
`Attorneys for Patent Owner – Symantec
`Corporation
`
`Date: November 8, 2013
`
`
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