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
`
`DECLARATION OF MATTHEW D. GREEN IN SUPPORT OF PATENT
`OWNER’S RESPONSE PURSUANT TO 37 C.F.R. § 42.120
`
`Symantec Exhibit 2016
`Veeam v. Symantec
`IPR2013-00150
`
`
`
`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
`
`DECLARATION OF MATTHEW D. GREEN IN SUPPORT OF PATENT
`OWNER’S RESPONSE PURSUANT TO 37 C.F.R. § 42.120
`
`Symantec Exhibit 2016
`Veeam v. Symantec
`IPR2013-00150
`
`
`
`Case IPR2013-00150
`U.S. Patent No. 7,093,086
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`I, Matthew D. Green, declare as follows:
`
`I.
`
`Background and Qualifications
`
`1.
`
`I am submitting this report on behalf of Symantec Corporation. I have
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`been retained as a technical expert in connection with the above-captioned action
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`to study and provide my opinions on certain issues related to U.S. Patent No.
`
`7,093,086 (“the ‘086 patent”). I have been asked to provide my opinions regarding
`
`the validity of the claims 1, 11, 12 and 22 of the ‘086 patent. My opinions are set
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`forth in detail in this report and in the accompanying Exhibits.
`
`2.
`
`Between now and such time that I may be asked to testify, I expect to
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`continue my review, evaluation, and analysis of evidence presented before and/or
`
`at the hearing. I expect to review further reports submitted by Veeam’s expert(s).
`
`I reserve the right to amend or supplement this report, as appropriate, after
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`considering the opinions set forth in Veeam’s expert report(s). In the event that
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`additional relevant information becomes available to me, I also reserve the right to
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`review and consider that information in further developing or refining my
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`opinions. I further reserve the right to supplement this report as necessary. I also
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`reserve the right to develop materials and exhibits as appropriate for use in helping
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`to demonstrate and explain my opinions in the event that I am asked to testify at
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`trial.
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`U.S. Patent No. 7,093,086
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`3.
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`My compensation as an expert is in no way dependent upon the results
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`of any investigations I undertake, the substance of any opinion I express, or the
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`ultimate outcome of this case. Barr Group bills Patent Owner for my time by the
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`hour, plus reimbursement for travel and other out-of-pocket expenses incurred
`
`during my work on this matter. Barr Group and I are each compensated regardless
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`of the facts I know or discover and/or the conclusions or opinions I reach. I have
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`no personal or financial stake or interest in the outcome of this matter.
`
`4.
`
`Attached as Exhibit A to this report is my up-to-date curriculum vitae,
`
`which includes a complete list of my publications and past testimony as an expert.
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`The following paragraphs briefly summarize my relevant expertise.
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`5.
`
`I hold a Ph. D. in Computer Science from Johns Hopkins University, a
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`Master of Science degree in Computer Science from Johns Hopkins University and
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`a Bachelor of Arts in Computer Science from Oberlin College. I have authored a
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`number of research papers in top Computer Science journals and conferences,
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`including journals and conferences of the Institute of Electrical and Electronics
`
`Engineers (IEEE) and the Association for Computing Machinery (ACM).
`
`6.
`
`At present I hold an Assistant Research Professorship at Johns
`
`Hopkins University in Baltimore, MD. My professional responsibilities in these
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`positions include: advising graduate students, teaching, and conducting research
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`supported by grants. I am supported as a co-Principal Investigator on National
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`Case IPR2013-00150
`U.S. Patent No. 7,093,086
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`Science Foundation grant NSF CNS-1010928 as well as grants from DARPA and
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`ONC/HHS. A complete list of my research publications, patents, and grant support
`
`is included in Appendix A.
`
`7.
`
`Prior to accepting a university position, I worked for a number of
`
`years as a software developer and technology consultant. From 1999-2004 I held
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`the position of Senior Technical Staff Member at AT&T Laboratories in Florham
`
`Park, NJ, where my responsibilities included developing software for desktop and
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`mobile devices, development of a secure text messaging system for mobile
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`devices, and development work on AT&T’s Interactive Voice Response (IVR)
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`system. The latter system was deployed to millions of AT&T customers. From
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`2005-2011, I served as Principal Analyst and CTO of Independent Security
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`Evaluators, a custom security evaluation and design consultancy. In that position I
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`worked with several clients to develop security solutions for virtual machine based
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`systems such as anti-virus detection systems.
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`8.
`
`I have used my education and my years of experience working in the
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`field of software design, and my understanding of the knowledge, creativity, and
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`experience of a person of ordinary skill in the art in forming the opinions expressed
`
`in this report.
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`U.S. Patent No. 7,093,086
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`II.
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`Information Relied Upon
`
`9.
`
`I understand that this Inter Partes Review proceeding involves U.S.
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`Patent No. 7,093,086 filed on March 28, 2002 and entitled “Disaster Recovery and
`
`Backup using Virtual Machines”.
`
`10.
`
`This declaration is intended to provide information and opinions
`
`concerning the disclosure in certain prior art references in relation to the ‘086
`
`patent and some of its claims.
`
`11.
`
`In preparation for this declaration, I have reviewed and am now
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`familiar with materials from the proceeding, including:
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`11a. The ‘086 patent including the specification and claims;
`11b. The ‘086 patent’s prosecution history;
`11c. Petition for Inter Partes Review of the ‘086 patent dated
`February 14, 2013;
`11d. Declaration of Dr. Prashant Shenoy in Support of Petition for
`Inter Partes Review of the ‘086 patent;
`11e. U.S. Patent 6,795,966;
`11f. VMware ESX Server 1.0: User Manual;
`11g. Getting Started Guide: VMware 2.0 for Linux;
`11h. Suzaki, Checkpoint for Network Transferable Computer;
`11i. Wang et al., Integrating Checkpointing with Transaction
`Processing;
`11j. Claim Construction Order dated March 3, 2013 (Case 3:12-cv-
`00700-SI, Document 105);
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`11k. Patent Owner Preliminary Response dated May 20, 2013;
`11l. Decision regarding the Institution of Inter Partes Review dated
`August 7, 2013;
`11m. Patent Owner Request for Rehearing dated August 21, 2013;
`11n. Decision dated October 8, 2013 regarding Patent Owner’s
`Request for Rehearing;
`11o. VMware KB: Best practices for virtual machine snapshots in
`the VMware environment (1025279);
`11p. VMware KB: Cloning and converting virtual machine disks
`with vmkfstools (1028042); and
`11q. Transcript of November 8, 2013 deposition of Dr. Prashant
`Shenoy in connection with Inter Partes Review of the ‘086
`patent
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`III. Ordinary Level of Skill in the Art
`
`12.
`
`In my opinion, a person of ordinary skill in the art of the subject
`
`matter of the ‘086 patent would have been a person having an undergraduate
`
`degree in computer science and approximately two years of industry experience in
`
`software industry development (or the equivalent).
`
`13. As used above, the phrase “or the equivalent” is intended to mean that
`
`the required levels of educational and industry experience are on a sliding scale
`
`relative to each other. For example, a person of ordinary skill could potentially
`
`have no undergraduate educational degree but more than two years of industry
`
`experience or, conversely, could have a more advanced educational degree with
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`little industry experience. Also, similar degrees, such as electrical or computer
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`engineering could be substituted for the computer science degree.
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`14.
`
`I understand that the person of ordinary skill in the art is viewed at the
`
`time of the invention.
`
`IV. Applicable Legal Standards
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`15.
`
`I am not an attorney and do not expect to offer any opinions regarding
`
`the law. However, I have been informed of certain legal principles relating to
`
`patent claim construction and validity that I relied upon in reaching opinions set
`
`forth in this report.
`
`Claim Language
`
`16.
`
`I understand that, in Inter Partes Review proceedings, claim terms are to be
`
`given the broadest reasonable construction in light of the specification as would be read
`
`by a person of ordinary skill in the relevant art.
`
`17. As the result of my education and experience, I believe that I understand
`
`how the asserted claims of the ‘086 patent would be understood by a person of ordinary
`
`skill in the art applying the above standard. I have applied this understanding to the
`
`following terms.
`
`18.
`
`The following constructions have been set forth in this proceeding.
`
`
`
`Symantec Corporation argues that the claims require a “backup
`
`program.” I believe that one of ordinary skill in the art reading the claim
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`language and the specification would conclude that this construction is
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`appropriate. ‘086 patent, claims 1, 6, 12 and 17; Abstract; FIGS. 1, 2, 6 and
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`7; col. 1:28-30; col. 2:53-col. 3:26, col. 4:42-61; col. 5:58-col. 7:32; col.
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`11:14-col. 13:32.
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`
`
`Symantec Corporation has advanced the following construction
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`for the term “a state of [first] virtual machine:” “a state of [first] virtual
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`machine’ as ‘information regarding the [first] virtual machine to permit the
`
`virtual machine to resume execution of the application at the point in time
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`the state was captured.” I have also reviewed the Patent Trial and Appeal
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`Board’s construction for this term and am of the opinion that Symantec
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`Corporation’s construction is more appropriate. This is because, I believe
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`that one of ordinary skill in the art reading the claim language and the
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`specification would conclude that the state information required by the
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`claims should include sufficient information to: 1) resume the virtual
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`machine, and not merely an application; and 2) resume execution on any
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`computer, whether that computer is the same physical computer or a totally
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`different one. ‘086 patent claims 1, 8, 12 and 19; Abstract; col. 1:12-67, col.
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`3:7-65; col. 4:19-28; col. 13, ll. 20-25.
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`
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`The Patent Trial and Appeal Board has construed the term
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`“copy[ing] at least a portion of the state to a destination separate from a
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`storage device to which the first virtual machine is suspendable” as meaning
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`“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
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`the first virtual machine is suspended.” I have no objection to this
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`construction.
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`Anticipation
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`19.
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`It is my understanding that a claim is anticipated only if each and every
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`element as set forth in the claim is found, either expressly or inherently described in a
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`single prior art reference. In this regard, the identical invention must be shown in as
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`complete detail as is contained in the claim such that there is no difference between the
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`claimed invention and the reference disclosure, as viewed by a person of ordinary skill in
`
`the art.
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`Obviousness
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`20.
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`It is my understanding that obviousness is determined from the vantage point
`
`of a person of ordinary skill in the art at the time the invention was made. In order to be
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`considered invalid under this ground, the claimed invention as a whole must have been
`
`obvious at that time to that person. Obviousness requires that the asserted references
`
`teach or suggest each and every claim feature.
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`21. My understanding is that one cannot use impermissible hindsight in
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`assessing whether a claimed invention is invalid for being obvious. For example,
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`an invention should not be considered in view of what persons of ordinary skill
`
`would know today, nor can it be reconstructed after the fact by reading into the
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`prior art the teachings of the invention at issue.
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`22.
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`It is my understanding that obviousness cannot be proven by mere
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`conclusory statements or by merely showing that an invention is a combination of
`
`elements that were already previously known in the prior art. Rather, a patent
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`challenger in an Inter Partes Review proceeding must further establish by a
`
`preponderance of the evidence that there was an apparent reason with some
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`rational underpinnings that would have promoted a person of ordinary skill at the
`
`time of the invention to have combined these known elements in the claimed
`
`fashion. Such reasons might include, for example, teachings, suggestions, or
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`motivations to combine that would have been apparent to a person of ordinary skill
`
`in the art.
`
`V.
`
`Technology Overview
`
`Virtual Machines
`
`23.
`
`The ‘086 patent is directed towards the field of virtualized computing.
`
`A “Virtual Machine”(VM) is a software/hardware construct designed to simulate
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`the environment of one computer system within the greater environment of a
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`second, physical computer. Virtual machines have numerous applications in the
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`field of computer science. They may be used to “co-locate” multiple distinct
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`simulated computers on a single piece of physical hardware. They may also be
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`used to execute programs designed for one computer processor architecture (e.g., a
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`MIPS or PowerPC processor) on a physical machine with a different processor
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`architecture.
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`24.
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`The primary component of a Virtual Machine-based system is a piece
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`of software and/or hardware known as a Virtual Machine Kernel (or “Virtual
`
`Machine Monitor”) that is responsible for simulating and managing the Virtual
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`Machine. The VM Kernel incorporates a set of rules for emulating the underlying
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`hardware and maintains a set of values in physical memory that correspond to
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`memory areas on the simulated computer. These memory areas “simulate”
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`processor registers, cache, and Random Access Memory (RAM) storage for the
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`virtual machine. The VM Kernel will often simulate the presence of one or more
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`virtual hardware peripherals, such as mass storage devices (e.g., hard disk drives),
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`computer network hardware and input/output devices such as keyboards and video
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`monitors. This description of a given virtual machine is collectively referred to as
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`“VM Configuration” and is often stored in a separate file such as a configuration
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`file.
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`25. While there are many types of Virtual Machines, the most common
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`Virtual Machine software packages are designed to emulate a complete physical
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`computer system. This means that from the ‘point of view’ of the software running
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`on the VM, the virtualized environment is indistinguishable from that of a real
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`physical computer. A significant advantage of this design is that the underlying
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`software need not be modified for execution on the Virtual Machine. Indeed, a key
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`selling point of VM software such as VMware, Xen, and Parallels is the ability to
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`deploy Virtual Machines that run commodity operating system and application
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`software. The simulated computer runs software that may include a Basic
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`Input/Output System (BIOS), Operating System (OS), and other application
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`software.
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`State, Suspension and Resumption
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`26.
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`Like all classical computers, Virtual Machines exist in a single “state”
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`at any given time. This state can be described by a variety of factors, including: the
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`configuration of the machine; the current image of all files on any virtual storage
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`devices connected to the machine (including any software); the state of the
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`simulated hardware, including processor registers and local cache; and the current
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`memory image. The Virtual Machine state comprises all of the state associated
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`with a given virtual machine: it is effectively the information needed to continue or
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`resume execution of the machine at any given point in time. The state of the
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`Virtual Machine executed by the VM Kernel can be captured and recorded in
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`various ways.
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`27. A common feature of commercial Virtual Machine Kernel software
`
`products is the ability to “suspend” Virtual Machines by pausing execution and
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`recording the current Virtual Machine state to a mass storage device such as a hard
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`disk. This “state” includes the current values used in executing the Virtual
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`Machine, such as processor registers and memory image, as well as a current
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`snapshot of the file system on any emulated mass storage devices. Suspension
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`differs markedly from “shutdown” in that it does not require the Virtual Machine
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`to terminate any ongoing software processes. More importantly, as the VM Kernel
`
`normally handles the Suspend function, the software running on the VM itself need
`
`not be modified to support the suspend capability. The resulting suspended image
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`is “complete” in the sense that it comprises the state of the operating system and all
`
`running applications, even where the applications are interoperating amongst each
`
`other.
`
`28.
`
`Suspension has many applications. For example, a user might
`
`configure one or more Virtual Machines in a prepared state, so that a machine can
`
`be activated quickly when specific functionality is required. This removes the need
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`to run each machine continuously, or to execute a time-consuming “boot” process.
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`Suspension may also provide a means to halt a machine (thus reducing its CPU and
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`power consumption) without completely shutting it down.
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`29. A challenge in suspending a machine is the need to obtain an
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`instantaneous snapshot of the computer at a specific point in time. Some earlier
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`‘hibernation’ technologies suspended machines by terminating one application at a
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`time. This “non-instantaneous” suspension can create a situation where the
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`suspended image captures the computer state over a period of time. The resulting
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`snapshot may contain inconsistencies or “blurring”, analogous to the effect that
`
`occurs in a long-exposure photograph. For example, when multiple applications
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`communicate on the same machine, it may be the case that a message is recorded
`
`as arriving at one application before it has been dispatched from a second
`
`application.
`
`30. Many commercial VM software products available at the time of
`
`filing of the ‘086 patent provided advanced features to be used in combination with
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`Suspension. For example, the ‘086 patent cites VMware, Inc.’s “ESX”, which
`
`supports a “non-persistent” mode in which the user may activate a Suspended
`
`machine from a first state, then “discards” any changes to this first state at the
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`conclusion of the usage session. When a Virtual Machine is in this state, the VM
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`Kernel stores ongoing disk and memory writes to a separate area. These changes
`
`may be retained or discarded at the conclusion of the session.
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`31. One application of the “non-persistent” mode is to create “known
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`good” machine configurations that cannot be altered through user choice or error.
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`Each time these machines are restarted, any modifications are discarded. Products
`
`such as VMware ESX 1.0 extends this functionality with variants such as
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`“Append” mode, in which the user may optionally retain (commit) or discard any
`
`changes to the machine at the conclusion of each session.
`
`32.
`
`The non-persistent and Append modes in VMware are not intended
`
`for backup purposes. These modes are generally intended to facilitate the usage
`
`and deployment of virtual machines in specific states. For example, a Virtual
`
`Machine server may be configured with specific software and placed into a state
`
`where it is ready to serve requests. By running the server in a non-persistent
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`storage mode, the server can operate continuously and then be “reset” when it is
`
`rebooted, ensuring that the configuration is still appropriate for serving requests.
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`Similarly, the “Append” mode allows system administrators to update the server
`
`with new software while retaining the option to roll back any errors along the way.
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`Backup of Virtual Machines
`
`33.
`
`The ‘086 patent describes a process whereby Virtual Machines are
`
`backed up automatically by a software process. This involves capturing the Virtual
`
`Machine’s state – which includes all elements necessary to resume execution of the
`
`virtual machine – and copying this information to a separate location in case of
`
`failure. ‘086 patent, claims 1, 6, 12 and 17; Abstract; FIGS. 1, 2, 6 and 7; col. 1:28-
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`30; col. 2:53-col. 3:26, col. 4:42-61; col. 5:58-col. 7:32; col. 11:14-col. 13:32.
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`34. An important component of any backup system is the ability to copy
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`the backup data to a location other than the normal location on which the data
`
`resides. This requires both a separate location (e.g., storage device or networked
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`computer) and a mechanism for copying the data to the separate location. This
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`mechanism may include software components designed to automatically transfer
`
`data to a removable disk drive and/or transmission via a network communication
`
`link to a remote computer.
`
`35. A longstanding challenge in constructing Backup and Disaster
`
`Recovery systems is the difficulty of resuming normal operations when computer
`
`hardware has been damaged or rendered unavailable. For example, a natural
`
`disaster may destroy a computing site along with irreplaceable hardware or
`
`network configurations. A replacement configuration may be incompatible with
`
`backed up software and data.1 Restoring following a disaster can be time
`
`consuming and expensive, since even small differences in the machines’ physical
`
`operating characteristics can lead to incorrect operation of the recovered systems.
`
`1 For example, subtle hardware differences between the original and replacement
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`computing hardware can lead to malfunctions. It is quite common for new
`
`machines to include different peripheral makes and models, rendering previous
`
`versions of “device drivers” incompatible.
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`36. An additional feature of backup software is the capability to
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`automatically back up files, possibly on a periodic schedule. This also
`
`differentiates backup software from manual operations that users have historically
`
`always been able to undertake – e.g., copying files manually.
`
`37.
`
`The ‘086 patent teaches an invention that backs up one or more
`
`Virtual Machines and provides for recovery on any computer hardware. The
`
`decision to back up and recover machines at the VM level can mitigate concerns
`
`about hardware and configuration incompatibility issues: the VM Kernel software
`
`acts as an interface layer between the physical hardware and the software running
`
`on the VM.
`
`38.
`
`The use of Virtual Machines for Backup and Disaster Recovery
`
`should be distinguished from other applications of Virtual Machine technology.
`
`For example, it is quite common to deploy or “clone” copies of suspended Virtual
`
`Machines to remote hardware when deploying new software into production
`
`systems.
`
`39. An important difference between Backup/Disaster Recovery and
`
`Deployment is that Backup is designed to allow the Virtual Machine to continue to
`
`operate, whereas deploying virtual machines is frequently a terminal process. That
`
`is, once an image has been appropriately configured, the local copy can be
`
`suspended indefinitely or terminated. Hence most deployment systems are not
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`intended to consider executing VMs as the source. As Dr. Shenoy testifies, adding
`
`this capability in a scenario where the virtual machine does not need to be
`
`suspended requires “additional functionality [in the backup program], so it would
`
`be more challenging or more complex” to implement (Shenoy Deposition 66:1-5).
`
`40.
`
`Finally, it should be noted that backing up a virtual machine requires
`
`the backup software to capture a full picture of the machine’s state. This includes
`
`the machine configuration files; processor registers; memory; and disk state. All of
`
`these components are needed in order to recover and resume a virtual machine on
`
`any computer. Anything less than this complete state, e.g., partial file updates, will
`
`not permit such recovery.
`
`VI. Overview of the ‘086 Patent
`
`41.
`
`The ‘086 patent describes an invention designed for the purposes of
`
`backing up Virtual Machine-based systems. The ‘086 patent focuses on a specific
`
`technological capability: the ability to back up running Virtual Machines without
`
`halting, suspending or otherwise interrupting them. This allows users to run virtual
`
`machines continuously without halting use in order to conduct the backup. Such
`
`backups are particularly critical for production environments where critical data is
`
`continuously being gathered and/or processed by a computer – and hence the
`
`system must be routinely backed up – but terminating or interrupting the machine’s
`
`execution represents an unacceptable cost. By making backup a routine
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`background process, the invention facilitates continuous backup and allows for
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`disaster recovery with minimal loss of data.
`
`42.
`
`The ‘086 patent describes a computer system, including Operating
`
`System (OS) and application software, runs as a Virtual Machine inside of a VM
`
`Kernel that simulates the computer hardware. The ‘086 patent discloses that the
`
`VM Kernel provides the following important capabilities to the Virtual Machine: a
`
`simulation of computer memory (RAM) and a simulation of one or more hard
`
`disks.
`
`43.
`
`In addition to the VM Kernel and Virtual Machine, the ‘086 patent
`
`discloses a “backup program” that can periodically store the contents of the
`
`machine state for backup purposes. This program may be capable of
`
`programmatically performing backups without requiring the user to manually
`
`initiate said backups. It may also perform backups while the VM is executing:
`
`automatically performing the steps of capturing machine state, then subsequently
`
`copying the state to a second location such as a remote computer system or hard
`
`drive.
`
`44.
`
`In practice, the VM Kernel mediates the Virtual Computer’s
`
`interaction with the underlying RAM and hard disks in several ways. Two
`
`examples of this mediation are crucial to the disclosed invention. First, the use of a
`
`virtual machine allows for backup on suspend, wherein the machine is interrupted
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`U.S. Patent No. 7,093,086
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`and the current memory, processor and file system state can be captured from the
`
`VM and sent to a separate location.
`
`45. Additionally, the backup program disclosed in the ‘086 patent
`
`cooperates with the VM Kernel so as to allow the machine to be backed up while
`
`the VM continues to execute, which is not an easy task. One technique for
`
`achieving this involves the creation of a special memory area and transactional
`
`disk log or log of uncommitted updates, wherein changes to the VM memory and
`
`disk are written to these new areas rather than being written to the original image.
`
`While these components generically existed in VM Kernel software, the ‘086
`
`patent discloses a new usage of these files that allows a backup program to perform
`
`a backup of Virtual Machines without terminating or suspending them. This is a
`
`core innovation of the ‘086 patent.
`
`46.
`
`Portions of this functionality are described in Figure 6 of the ‘086
`
`patent as reproduced below. The patent describes creating a memory area
`
`(“Memory COW 112”) separate from the original memory area of the virtual
`
`machine. When software on the VM writes to the machine’s memory, the updates
`
`are written into the new area so as to avoid changing existing memory pages. As a
`
`result, the original memory does not change while being backed up by the backup
`
`software. Similarly, the ‘086 patent discloses a “New COW file 74” that serves a
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`19
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`Case IPR2013-00150
`U.S. Patent No. 7,093,086
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`similar purpose for file writes – storing updates to disk files in a separate area
`
`where they do not risk overwriting existing information.
`
`47. Note that these modifications to the VM Kernel are proposed for the
`
`specific purpose of allowing the VM to continue to execute while backup is
`
`ongoing. Indeed, Claims 11 and 22 set forth additional structure for performing
`
`these modifications. This new design is a non-trivial extension over the state of the
`
`art. Indeed, Dr. Shenoy confirms that this invention (i.e., allowing backup while
`
`the machine is running) is significantly more “complex” and “challenging”
`
`(Shenoy Deposition 66:1-5).
`
`48.
`
`The ‘086 patent claims (e.g., Claim 1, Claim 12) break the backup
`
`process into two main steps. In the first step (i), the state of the Virtual Machine is
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`20
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`U.S. Patent No. 7,093,086
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`captured at a point in time. In some instances this information may be written to
`
`disk – for example, the capturing of state involving files on disk, or as a result of
`
`an image data request. In the second step (ii), “a plurality of instructions
`
`comprising instructions which, when executed… copy at least a portion of the state
`
`to device separate from the device to which the machine is suspendable”. As
`
`explored in the specification, this process represents a machine-initiated and
`
`controlled backup process that stores data to a separate storage device.
`
`49. Having a backup program perform these steps automatically enables
`
`the backing up of one or more virtual machines periodically without needing user
`
`intervention. The ability to have the virtual machine continue to execute during
`
`this process maintains accessibility to the virtual machine and avoids the need to
`
`continually interrupt the virtual machine as some of the prior art does, which again,
`
`is especially helpful when the backup is intended to be performed often and
`
`periodically for several virtual machines.
`
`VII. The Cited References
`
`50. Veeam has identified a series of prior art references in their Petition.
`
`In this section we will briefly summarize the references that remain in this
`
`proceeding.
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`VMware ESX Server 1.0: User Manual (VMware ESX)
`
`51. VMware ESX discusses an ESX product which provides a Virtual
`
`Machine Monitor or VM Kernel software that is cited by the ‘086 patent. In fact,
`
`the ‘086 patent explicitly references VMware, Inc.’s ESX server in a number of
`
`places. ‘086 patent, col. 6:1-2, col. 6:60-62.
`
`Getting Starting Guide: VMware 2.0 for Linux (VMware GSG)
`
`52. VMware GSG describes a second variant of the VMware, Inc. product
`
`family, namely VMware 2.0 for Linux. VMware for Linux is similar to VMware
`
`ESX Server, but is intended for, e.g., desktop use.
`
`US Patent 6,795,966 (Lim)
`
`53.
`
`Lim, another VMware, Inc. reference, teaches a mechanism in which
`
`a Virtual Machine Monitor stores multiple ‘checkpoints’ of a running Virtual
`
`Machine. Checkpointing actually serves a somewhat different purpose than
`
`backup. Whereas backup systems are designed to store a running Virtual
`
`Machine’s state at a second storage system – for recovery in the event that the
`
`main Virtual Machine computer fails or ceases to function – checkpointing is
`
`primarily aimed at ‘rewinding’ virtual machine state to an earlier point.
`
`K. Suzaki, “Checkpoint for Network Transferable Computer” (Suzaki)
`
`54. A translated research paper by K. Suzaki describes a method that
`
`performs Virtual Machine checkpointing using software installed onto the Virtual
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`Machine itself. This differs from the invention disclosed in the ‘086 patent in that
`
`the capture of Virtual Machine state is not performed by the VM Kernel, but is
`
`rather performed by modified portions of the operating system installed on the
`
`Virtual Machine itself.
`
`K. Wang, Chung, Huang and Elnozahy, “Integrating Checkpointing with
`
`Transaction Processing” (Wang et al.)
`
`55. Veeam and Dr. Shenoy also cite a combination of the Suzaki paper
`
`with a second research paper by Wang et al. Wang et al. describes a transactional
`
`processing system that can be included inside of applications in order to assist in
`
`application-level checkpointing.
`
`56.
`
`In the next section, I will discuss each of these references in more
`
`detail and address the difference between these references and the ‘086 patent.
`
`VIII. VMware ESX
`
`57. Veeam and Dr. Shenoy rely on VMware ESX, a reference to the ESX
`
`server product by VMware, Inc. The ESX product is one of several VM
`
`management software packages cited by the ‘086 patent. In this section, I will
`
`discuss a number of specific problems with the arguments made that the VMware
`
`ESX anticipates the ‘086 patent claims. It is my opinion that VMware ESX is
`
`mis
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