Trials@uspto.gov Paper 58
`571-272-7822
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`Date Entered: March 31, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ACTIFIO, INC.,
`Petitioner,
`
`v.
`
`DELPHIX CORP.,
`Patent Owner.
`____________
`
`Case IPR2015-00052
`Patent 8,548,944 B2
`____________
`
`Before HOWARD B. BLANKENSHIP, KARL D. EASTHOM, and
`MINN CHUNG, Administrative Patent Judges.
`
`BLANKENSHIP, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`571-272-7822
`
`Date Entered: March 31, 2016
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ACTIFIO, INC.,
`Petitioner,
`
`v.
`
`DELPHIX CORP.,
`Patent Owner.
`____________
`
`Case IPR2015-00052
`Patent 8,548,944 B2
`____________
`
`Before HOWARD B. BLANKENSHIP, KARL D. EASTHOM, and
`MINN CHUNG, Administrative Patent Judges.
`
`BLANKENSHIP, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`IPR2015-00052
`Patent 8,548,944 B2
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`I. BACKGROUND
`Petitioner, Actifio, Inc., filed a request for an inter partes review of
`
`claims 1, 8, 11, 14–16, 18, and 20 of U.S. Patent No. 8,548,944 B2 (Ex.
`1101, “the ’944 patent”) under 35 U.S.C. §§ 311–319. Paper 1 (“Petition”
`or “Pet.”). The Board instituted an inter partes review of claims 1, 8, 11,
`14–16, 18, and 20 on asserted grounds of unpatentability for obviousness.
`Paper 9 (“Dec. on Inst.”).
`Subsequent to institution, Patent Owner, Delphix Corp., filed a patent
`owner response. Paper 21 (“PO Resp.”). Petitioner filed a reply. Paper 25
`(“Pet. Reply”).
`Patent Owner filed a Motion to Exclude Evidence (Paper 38; “PO
`Mot. to Exclude”). Petitioner filed an Opposition to the Motion to Exclude
`(Paper 42; “Pet. Exclude Opp.”), and Patent Owner filed a Reply (Paper 44;
`“PO Exclude Reply”).
`An oral hearing concerning this case and several other inter partes
`reviews in which the parties are involved was held on January 14, 2016.
`The record contains a transcript of the hearing (Paper 56).
`The Board has jurisdiction under 35 U.S.C. § 6(c). This final written
`decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`For the reasons that follow, we determine that Petitioner has shown by
`a preponderance of the evidence that claims 1, 8, 11, 14–16, 18, and 20 of
`the ’944 patent are unpatentable.
`
`
`A. Related Proceedings
`According to Petitioner, the ’944 patent is involved in the lawsuit
`Delphix Corp. v. Actifio, Inc., No. 5:13-cv-04613-BLF (N.D. Cal.). Pet. 2.
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`The ’944 patent is also the subject of Case IPR2015-00050 (PTAB Oct. 8,
`2014).
`
`B. The ’944 Patent
`The ’944 patent relates to backing up and restoring file systems. File
`system backups are performed by copying information describing changes in
`the file system since a previous point in time. To restore data, a virtual
`restored file system (VRFS) structure is created corresponding to a snapshot
`of data copied from the file system that is stored in the backup file system.
`Ex. 1101, Abstract. The VRFS structure points at data blocks copied at
`various points in time. Id. at col. 1, ll. 40–42. Upon request, the backup
`system generates a virtual restored file system by linking a set of files to
`stored data blocks of the storage system and mounting the set of files on the
`target system. Id. at col. 1, ll. 57–62.
`
`C. Illustrative Claim
`Claim 1, reproduced below, is illustrative.
`1. A method for performing backup of file systems, the
`method comprising:
`
`receiving data blocks for a plurality of point-in-time
`copies of a source file system, each point-in-time copy of the
`source file-system obtained by extracting data blocks from the
`source file-system that changed since a previous point-in-time
`copy was extracted, the source file system comprising at least a
`source file;
`
`storing the data blocks on a storage system, the stored
`data blocks comprising one or more versions of a data block,
`each version corresponding to a point-in-time copy;
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`receiving a request to restore information obtained from
`the source file system for a target system; and
`
`responsive to receiving the request to restore, creating a
`virtual restored file system comprising a set of files including a
`restored file corresponding to the source file, the creating
`comprising:
`
`
`
`
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`linking the restored file to a plurality of the data
`blocks stored on the storage system, the plurality of data blocks
`comprising at least a first data block associated with a first
`point in time copy and a second data block associated with a
`second point in time copy, and
`
`mounting the set of files to the target system to
`allow the target system to access the set of files, the mounted
`set of files comprising the virtual restored file system.
`
`D. Asserted Prior Art
`
`Fair et al., US 7,334,095 B1, issued Feb. 19, 2008 (“Fair”). Exhibit 1106.
`
`Edwards et al., “FlexVol: Flexible, Efficient File Volume Virtualization in
`WAFL,” June 22–27, 2008, PROCEEDINGS OF THE ANNUAL TECHNICAL
`USENIX CONFERENCE (“Edwards”). Exhibit 1104.
`
`Patterson et al., “SnapMirror®: File System Based Asynchronous Mirroring
`for Disaster Recovery,” PROCEEDINGS OF THE FAST 2002 CONFERENCE ON
`FILE AND STORAGE TECHNOLOGIES, Jan. 28–30, 2002 (“Patterson”). Exhibit
`1105.
`
`NetApp Inc., SnapManager® 5.0 for Microsoft® SQL Server®, Oct. 2008
`(“SM Guide”). Exhibit 1103.
`
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`E. Asserted Grounds of Unpatentability
`We instituted inter partes review on the following grounds of
`unpatentability under 35 U.S.C. § 103(a):
`
`
`References
`SM Guide, Edwards, and Patterson
`SM Guide, Edwards, Patterson, and
`Fair
`
`
`Claim(s)
`1, 8, 11, 14, 15, 18, and 20
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`II. ANALYSIS
`A. Patent Owner’s Motion to Exclude Evidence
`In inter partes reviews, documents are admitted into evidence subject
`to an opposing party asserting objections to the evidence and moving to
`exclude the evidence. 37 C.F.R. § 42.64. As movant, Patent Owner has the
`burden of showing that an Exhibit is not admissible. 37 C.F.R. § 42.20(c).
`Patent Owner moves to exclude Petitioner’s Exhibits 1103, 1118,
`1121, 1126, 1128, 1129, 1131, 1132, 1134‒1141, 1144, 1145, and 1147, all
`of which except Exhibit 1103 were filed with Petitioner’s Reply. PO Mot. to
`Exclude 1.
`As Patent Owner notes, however, Petitioner does not rely on Exhibits
`1121, 1129, 1131, 1134, 1135, 1136, 1137, or 1138. Id. at 1 n.1. Further,
`Petitioner has moved, unopposed, to expunge Exhibit 1126 (see Paper 35),
`which motion we hereby grant. Of the other objected-to Exhibits, except for
`Exhibits 1103, 1118, and 1144, we do not, and need not, consider such
`evidence in connection with the Reply. We determine, for reasons set forth
`below, that Petitioner has demonstrated by a preponderance of the evidence
`that the challenged claims are unpatentable, without need for Petitioner’s
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`additional arguments or evidence in relation to those additional Exhibits. Of
`the objected-to Exhibits, our Final Written Decision discusses and relies on
`only Exhibits 1103, 1118, and 1144. Accordingly, Patent Owner’s motion
`to exclude Exhibits 1121, 1126, 1128, 1129, 1131, 1132, 1134‒1141, 1145,
`and 1147 is dismissed as moot.
`“Exhibit 1103 is allegedly a user manual for a NetApp product which
`Petitioner relies upon for its prima facie case of obviousness.” PO Mot. To
`Exclude 1‒2. Patent Owner moves to exclude the Exhibit (SM Guide) as not
`being authenticated pursuant to Federal Rule of Evidence 901. Id.
`Petitioner provides reasons why it contends SM Guide is self-
`authenticating under Rule 902. Pet. Exclude Opp. 12‒13. However, a
`document may be authenticated by “the appearance, contents, substance,
`internal patterns, or other distinctive characteristics of the item, taken
`together with all the circumstances.” Fed. R. Evid. 901(b)(4). Petitioner
`submits:
`The cover page includes NetApp’s company address, telephone
`number, website, and email address for providing comments to
`NetApp about the documents. Indeed, the website and email
`address on Ex. 1103 are hyperlinked, and clicking on them
`directly links a user to NetApp’s website or opens an email
`addressed to NetApp respectively. Further, the SnapManager
`Guide contents include repeated references to NetApp and
`various NetApp technologies. Ex. 1103 at 024 (“This guide
`refers to all NetApp storage products”).
`
`Pet. Exclude Opp. 13. Moreover, Petitioner points out testimony that is
`sufficient to authenticate the document pursuant to Rule 901(b)(1). Pet.
`Exclude Opp. 13‒14.
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`We, therefore, are not persuaded that SM Guide is not authenticated at
`least under Federal Rules of Evidence 901(b)(1) and 901(b)(4). On this
`record, we accept Exhibit 1103 for what it purports and is alleged to be: “a
`user manual for a NetApp product.” PO Mot. To Exclude 1.
`Patent Owner’s motion to exclude Exhibit 1103 is denied.
`Exhibit 1118 is the Declaration of Louis Hernandez. Patent Owner’s
`motion does not specify the basis for any evidentiary objection to the
`Exhibit.
`Patent Owner’s motion to exclude Exhibit 1118 is denied.
`Exhibit 1144 is the Supplemental Declaration of Louis Hernandez.
`Patent Owner argues that the Exhibit is “inadmissible hearsay.” PO Mot. to
`Exclude 6‒9. The Supplemental Declaration, however, consists of
`statements made by the Declarant while testifying in this proceeding — not
`“hearsay” (Fed. R. Evid. 801(c)) — but sworn testimony that is subject to
`cross-examination. Indeed, Patent Owner cross-examined Mr. Hernandez
`with respect to that testimony.
`Patent Owner’s motion to exclude Exhibit 1144 is denied.
`
`B. Printed Publication — SM Guide
`Patent Owner in its Response contests that SM Guide is a prior art
`“printed publication” in accordance with 35 U.S.C. §§ 102 and 311(b). We
`look to the underlying facts to make a legal determination as to whether a
`document is a printed publication. Suffolk Techs., LLC v. AOL Inc., 752
`F.3d 1358, 1364 (Fed. Cir. 2014). The determination of whether a document
`is a “printed publication” under 35 U.S.C. § 102(b) involves a case-by-case
`inquiry into the facts and circumstances surrounding its disclosure to
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`members of the public. In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir.
`2004). Public accessibility is a key question in determining whether a
`document is a printed publication and is determined on a case-by-case basis.
`Suffolk Techs., 752 F.3d at 1364. To qualify as a printed publication, a
`document “must have been sufficiently accessible to the public interested in
`the art.” In re Lister, 583 F.3d 1307, 1311 (Fed. Cir. 2009).
`Initially, we note our disagreement with Patent Owner’s contention
`that Petitioner cannot rely upon evidence not submitted with the Petition to
`show that SM Guide is prior art. PO Resp. 3‒5. In Patent Owner’s view,
`Petitioner must make out a prima facie case of unpatentability in its Petition,
`which includes the substantive element of SM Guide being publicly
`accessible and prior art. Id. at 4. That position, however, does not account
`for the difference between the threshold for instituting a trial (35 U.S.C.
`§ 314(a)) and that for proving unpatentability of a claim in trial (35 U.S.C. §
`316(e)). As noted by our reviewing court, “there is a significant difference
`between a petitioner’s burden to establish a ‘reasonable likelihood of
`success’ at institution, and actually proving invalidity by a preponderance of
`the evidence at trial.” TriVascular, Inc. v. Samuels, 812 F.3d 1056, 1068
`(Fed. Cir. 2016) (quoting 35 U.S.C. § 314(a) and comparing § 316(e)).
`Based on the information presented in the Petition and Patent Owner’s
`Preliminary Response (Paper 8) we determined there was a reasonable
`likelihood that Petitioner would prevail in its challenges that included SM
`Guide. Dec. on Inst. 13; see 35 U.S.C. § 314(a) (threshold for instituting
`inter partes review); see also 37 C.F.R. § 42.108(c) (“The Board’s decision
`[on Institution] will take into account a patent owner preliminary response
`where such a response is filed.”). Patent Owner did not challenge the prior
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`art status of any of the applied patents or publications in its Preliminary
`Response. Patent Owner, in fact, stated that it had “disclosed to the Patent
`Office every NetApp feature that Petitioner now cites in the Petition.” Paper
`8, 22. We do not mean to suggest that a patent owner must raise any
`“printed publication” issues in a preliminary response in order for the Board
`to consider such issues in the preliminary proceeding phase. In this case,
`however, based in part on the information in Patent Owner’s Preliminary
`Response and in part on the printed dates and the lack of indicia of
`confidentiality or internal, non-public distribution in SM Guide, we
`determined that Petitioner had met its burden for a threshold showing to
`proceed to trial.
`Patent Owner also argues that Petitioner cannot rely on two
`Declarations in its Reply. PO Resp. 2. The Declarations are provided by
`Louis Hernandez (Ex. 1118) and Joseph Ortiz (Ex. 1126).1 Patent Owner
`submits that Petitioner provided Patent Owner with the Hernandez
`Declaration in response to Patent Owner’s objections to evidence (although
`Patent Owner does not tell us its basis for the objections). Our rules
`authorize serving supplemental evidence in response to an objection. 37
`C.F.R. § 42.64(b)(2). Patent Owner lacks a foundation to complain that
`evidence has been produced in response to its objections. Petitioner also
`relies, properly, on the supplemental evidence in its Reply, as evidence in
`reply to Patent Owner’s arguments in its Response that SM Guide is not a
`printed publication.
`
`
`1 Exhibit 1126 is expunged at Petitioner’s request. We do not further discuss
`the Exhibit.
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`Turning to the substance of Exhibit 1118, Mr. Hernandez testifies that
`he is currently employed by Petitioner, was employed by NetApp from 2004
`to 2009, and was a NetApp customer from 2000 to 2004. Ex. 1118 ¶¶ 1, 2,
`4. Mr. Hernandez testifies further that for most of his time at NetApp, as a
`Systems Engineer, he was responsible for marketing NetApp’s products and
`services to numerous customers, prospective customers, business partners,
`and/or alliances. Id. ¶ 3. “During the 2000-2009 time-frame, to support its
`marketing efforts, it was NetApp’s standard practice to publish technical
`reports, white papers, and product manuals or guides to customers, potential
`customers, business partners, and alliances.” Id. ¶ 6. “These documents
`were published, according to standard practice, as of the month and year that
`appeared on the face of the documents.” Id. Mr. Hernandez testifies that he
`has personal knowledge of and recognizes SM Guide, and that it was
`published during his tenure at NetApp. Id. ¶¶ 7, 13.
`Patent Owner argues Mr. Hernandez does not declare that SM Guide
`was “publicly accessible.” PO Resp. 2‒3. Patent Owner submits:
`Even if it was NetApp’s “standard practice” to provide its
`documents to its “customers, potential customers, business
`partners and alliances,” that does not establish that these
`documents were available to the public, but instead shows at
`most that they were only available to a subset of entities
`affiliated with NetApp.
`
`Id. at 3.
`Petitioner replies with a Supplemental Declaration from Mr.
`Hernandez. Pet. Reply 6‒7. Mr. Hernandez testifies that he uses the term
`“publish” or “published” as referring to documents being publicly
`distributed to customers, potential customers, business partners, and
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`alliances as of the month and year that appeared on the face of the
`documents, non-confidentially. Ex. 1144 ¶ 5. According to Declarant,
`NetApp had more than two hundred Systems Engineers and other sales
`personnel during the relevant timeframe (id. ¶ 4) and that technical reports,
`white papers, product manuals, and product guides were freely distributed to
`support its marketing efforts (id. ¶ 7). Mr. Hernandez testifies further that it
`was important for NetApp to date the documents accurately so that
`customers and potential customers could understand if a specific document
`accurately reflects features for specific versions of NetApp’s products or if a
`document was outdated or updated to reflect more current features. Id. ¶ 10.
`Further, Petitioner provides evidence that by 2007 there were more than
`94,000 NetApp systems deployed and the company had thousands of
`customers in 138 countries. Pet. Reply 7; Ex. 1146, 1, 2, 4.2
`As part of routine discovery (37 C.F.R. § 42.51(b)(1)(ii)), Patent
`Owner had the opportunity to cross-examine Mr. Hernandez during Patent
`Owner’s first discovery period but elected not to. Patent Owner cross-
`examined Mr. Hernandez in its second discovery period regarding the
`testimony in his Supplemental Declaration. We have considered Patent
`Owner’s Motion for Observation on Cross-Examination Testimony of Mr.
`Hernandez (Paper 39) and Petitioner’s Response (Paper 43), insofar as they
`relate to public accessibility of SM Guide. We acknowledge the potential
`for bias in Mr. Hernandez’s testimony as a present employee of Petitioner.
`We find, however, the testimony in Mr. Hernandez’s Declarations as to
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`2 We find that Exhibit 1046, a NetApp Form 10-K SEC filing, was properly
`submitted by Petitioner as evidence in rebuttal to Patent Owner’s public
`accessibility challenge in its Response.
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`public accessibility of SM Guide to be credible. SM Guide purports to be an
`installation and administration guide for commercially available software.
`See, e.g., Ex. 1103, 1‒3. As an earlier panel of the Board has found, a dated
`technical document, having no indication of being a mere draft or an internal
`paper, is “a type of document whose very purpose is public disclosure.”
`Veeam Sw. Corp. v. Symantec Corp., Case IPR2014-00089, slip op. at 14
`(PTAB Apr. 25, 2014) (Paper 9).
`“A given reference is ‘publicly accessible’ upon a satisfactory
`showing that such document has been disseminated or otherwise made
`available to the extent that persons interested and ordinarily skilled in the
`subject matter or art exercising reasonable diligence, can locate it.” SRI
`Int’l, Inc. v. Internet Sec. Sys., Inc., 511 F.3d 1186, 1194 (Fed. Cir. 2008)
`(quoting Bruckelmyer v. Ground Heaters, Inc., 445 F.3d 1374, 1378 (Fed.
`Cir. 2006)). In view of the foregoing considerations, we find that Petitioner
`has established, by a preponderance of the evidence, that SM Guide (dated
`Oct. 2008) was available to the interested public at least more than one year
`before July 15, 2010, the earliest possible priority date of the ʼ944 patent.
`See Ex. 1101, at (60). Therefore, on this record, SM Guide is a printed
`publication under 35 U.S.C. § 102(b).
`
`C. Claim Interpretation
`In an inter partes review, the Board construes claim terms in an
`unexpired patent using their broadest reasonable construction in light of the
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b); In
`re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1278–79 (Fed. Cir. 2015),
`cert. granted sub nom. Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 890
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`(mem.) (2016). There is a presumption that a claim term carries its ordinary
`and customary meaning. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d
`1359, 1366 (Fed. Cir. 2002). The “ordinary and customary meaning” is that
`which the term would have to a person of ordinary skill in the art in
`question. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007).
`Only those terms which are in controversy need to be construed, and
`only to the extent necessary to resolve the controversy. Vivid Techs., Inc. v.
`Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999). In reaching our
`determinations in this Decision, we do not find construction of any terms
`necessary.
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`D. Asserted Grounds of Unpatentability
`
`1. Section 103(a) — SM Guide, Edwards, and Patterson
`Petitioner applies the teachings of SM Guide, Edwards, and Patterson
`in an asserted ground of obviousness as to claims 1, 8, 11, 14, 15, 18, and
`20. Pet. 26–56.
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`2. SM Guide
`SM Guide is a guide for installing SnapManager® 5.0 for Microsoft
`SQL Server® software. Ex. 1103, xii.3 The guide describes operations
`including data management, data archival for long-term or remote storage of
`backups, and data replication for disaster recovery operations. Id. The
`guide further describes replicating a database backup set to a destination
`
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`3 Hereafter, page numbers for SM Guide, Edwards, and Patterson refer to
`original page numbers.
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`system using SnapMirror. Id. at 268–72; Ex. 1115 ¶¶ 58–60 (Declaration of
`Erez Zadok).
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`The Figure from SM Guide at page 291 is reproduced below.
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`The Figure illustrates a primary site having Storage system A with
`SQL Server data LUN A1, LUN A2 (SnapMirror source volume) and a
`remote replicated site with Storage system B with Mirrored SQL Server data
`LUN B1, LUN B2. In the event of destruction of the data at the primary
`site, a SQL Server environment can be re-created on the replicated site. Ex.
`1103, 291.
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`3. Edwards
`Edwards further describes the SnapManager system as disclosed by
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`SM Guide, and provides more explanation about the use of volumes and
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`files to manage data. A volume essentially comprises a file system that
`points to and uses underlying data storage on storage disks:
`[A] FlexVol volume is a file system created within a file on an
`underlying system. A hidden file system spans a pool of
`storage, and we create externally visible volumes inside files on
`this file system. This introduces a level of indirection, or
`virtualization between the logical storage space used by a
`volume and the physical storage space provided by the RAID
`subsystem.
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`Ex. 1104, 131. “Conceptually, we wanted to aggregate many disks into a
`large storage container and allow administrators to create volumes by
`carving out arbitrarily sized logical chunks of this volume.” Id. “[W]e
`virtualize the allocation of volumes on physical storage, allowing multiple,
`independently managed file volumes, along with their Snapshot copies, to
`share the same storage.” Id. at 130. “Virtualization is a well-known method
`of abstracting physical resources and of separating the manipulation and use
`of logical resources from their underlying implementation.” Id. at 129. “By
`separating the management of file systems from the management of physical
`storage resources, these systems make it easier to create, destroy, and resize
`file systems, as these operations can be performed independent of the
`underlying storage.” Id. “The resulting virtual file volumes, or FlexVol®
`volumes, are managed independent of lower storage layers.” Id.
`
`Edwards explains that “writable Snapshot copies [are] []called
`Flexclone volumes.” Id. at 130. Id. A clone volume “inherits pointers to
`the complete file system image stored in the original Snapshot copy” of an
`original FlexVol volume. Id. at 135. “The only differences between a
`Snapshot copy and the live file system are the blocks that have been
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`modified since the Snapshot copy was created (and the metadata that points
`to them).” Id. at 131.
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`“WAFL [Write Anywhere File Layout] Snapshot copies provide
`consistent point-in-time copies of a volume.” Id. at 134. But, a Snapshot
`copy is read-only. Id. Therefore, “[v]olume cloning creates a FlexVol
`volume in which the active file system is a logical replica of a Snapshot
`copy in a different FlexVol volume within the same aggregate.” Id. To
`copy a volume, the system transfers metadata blocks that contain block
`pointers. See id. at 130–31.
`Edwards explains that “[c]reating a clone volume is a simple process.”
`Id. at 135. A container file for the new clone volume (or FlexClone volume)
`is created and seeded “with a vol_nfo block that is a copy of the vol_info
`block of the Snapshot copy on which the clone is based.” Id. Because
`vol_info block is the root of the “tree of blocks that form the Snapshot copy,
`the clone inherits pointers to the complete file system image stored in the
`original Snapshot copy.” Id. “[T]he clone does not actually own the blocks
`it has inherited from the parent, [and] it does not have those blocks in its
`container files.” Id. Nevertheless, the system may create new copies of any
`blocks shared with the parent in order to sever the connection between the
`parent and clone. Id.
`
`E. Asserted Obviousness over SM Guide, Edwards, and Patterson
`As we noted, Petitioner applies the teachings of SM Guide, Edwards,
`and Patterson in an asserted ground of obviousness as to claims 1, 8, 11, 14,
`15, 18, and 20. Petitioner points to specific disclosures in the prior art that
`are deemed to describe or teach all claim limitations. Pet. 26–56.
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`We find that the Petition provides ample reasons why one of ordinary
`skill in the art would have combined the teachings of SM Guide, Edwards,
`and Patterson. Pet. 21‒23. For example, all the references address the
`problem of reducing the time to restore a backup copy of an organization’s
`file system. Pet. 21 (citing Declaration of Erez Zadok, Ex. 1115 ¶ 93).
`Sanders, Edwards and Patterson all address the problem using the same
`solution — virtual file systems. Id. (citing Ex. 1115 ¶ 95‒97). SM Guide
`and Edwards teach creating virtual file systems use the same underlying
`NetApp technologies: Snapshot, SnapMirror, and FlexClone technologies
`incorporated into the Data ONTAP operating system. Pet. 22‒23 (citing Ex.
`1115 ¶¶ 95‒97). Moreover, Edwards expressly refers to the earlier Patterson
`reference for details relating to how to use SnapMirror for replication. Pet.
`22, 35; Ex. 1104, 133, 142.
`
`F. Patent Owner’s Response
`Patent Owner in its Response argues that the Petition fails to show
`that several limitations in the claims are found in the applied prior art. We
`consider each of those arguments in turn.
`
`1. Receiving of Data Blocks for a Plurality of Point-In-Time
`Copies of a Source File System
`
`The Petition points to SM Guide’s teachings regarding using
`SnapMirror to replicate backups of a server database on a remote storage
`system. Pet. 27‒28 (citing Ex. 1115 ¶¶ 132‒134). For the details of
`SnapMirror replication, Petitioner turns to Patterson. Id. at 28‒29. Patterson
`teaches that SnapMirror replicates a source volume onto a destination
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`volume using snapshot transfers. Ex. 1105, 121. A “snapshot” is a
`consistent image of the file system. Id. When a SnapMirror relationship is
`initiated by the destination, an initial “base reference snapshot” is transferred
`onto the destination. Id. Periodically, SnapMirror reflects changes in the
`source volume to the destination volume, replicating the source at a block
`level, but limiting transfers to blocks that are new or modified and still
`allocated in the file system. Id. at 120. Each time SnapMirror updates the
`destination, it takes a new snapshot of the source volume. Id. Because the
`source snapshots always contain a self-consistent, point-in-time image of the
`entire volume or file system, and these snapshots are applied to the
`destination, the destination always contains a self-consistent, point-in-time
`image of the volume. Id.
`Patent Owner argues that the NetApp storage system does not disclose
`or render obvious the claimed receiving of “data blocks for [a] plurality of
`point-in-time copies of a source file system.’” PO Resp. 24. According to
`Patent Owner, NetApp (specifically, SnapMirror) is a mirroring method for
`disaster recovery of physical storage, where the source file system and
`backup “mirror” are always maintained in the identical current state. Id.
`(citing Declaration of Dr. Prashant Shenoy, Ex. 2110 ¶ 70). Patent Owner
`submits further that the SnapMirror “mirror only represents what is
`maintained by the source system and does not store different point-in-time
`copies of the source.” Id. at 25 (citing Ex. 2110 ¶ 70).
`Patent Owner acknowledges, however, that the Petition relies on
`SnapMirror’s base reference and incremental reference snapshots created by
`the source system as the plurality of point-in-time copies of the source. Id.
`at 26. Patent Owner argues that the snapshots are never transferred to or
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`received by a destination, and thus cannot be the received data blocks for a
`plurality of point-in-time copies of a source file system. Id. at 27. “[T]hese
`temporary snapshots are created at the source, for use by the source and are
`not transferred to or stored at the destination.” Id. at 26 (citing Ex. 2110
`¶¶ 58‒61, 73‒74). Patent Owner does not indicate why it refers to the
`snapshots as “temporary,” but states that the snapshots “created and used
`during the SnapMirror processes” are never transferred to or received at the
`destination. Id. at 27. As Petitioner explains, however, the record is replete
`with evidence that establishes that baseline and incremental copies are
`transferred to and received at the destination. Pet. Reply 8‒12.
`Patent Owner argues, further, that the claims require that the received
`point-in-time copies are obtained by extracting data blocks from the source
`file-system that changed since a previous point-in-time copy was extracted.
`PO Resp. 27. Patent Owner acknowledges that, after initialization, “in its
`next syncing operation, SnapMirror will send all data blocks that have
`changed since the last update including any newly-created snapshots.” Id. at
`28. According to Patent Owner, “[i]f there are new snapshots they represent
`the state of the source file system when they were created, not when they are
`mirrored to the destination.” Id. at 28‒29 (citing Ex. 2110 ¶¶ 58‒61, 74‒76).
`“That is, they are not a point-in-time copy of the source file system as it
`exists when the data blocks are ‘extracted.’” Id. at 29. We agree with
`Petitioner (Pet. Reply 11‒12), however, that although the claims require a
`“plurality of point-in-time copies of a source file system,” nothing in the
`claims requires that the point-in-time copies be with respect to the source
`file system as it exists when the copies are mirrored to the destination or
`when the data blocks are extracted.
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`2. Create a Virtual Restored File System
`Patent Owner argues that the claims require the creation of a set of
`files for a virtual restored file system. PO Resp. 29‒30. Patent Owner
`submits that Petitioner relies on SM Guide and Edwards for creating a
`FlexClone volume of a stored snapshot. Id. at 30. Specifically, Petitioner
`relies on “the step in which a ‘container file for the new clone volume is
`created and seeded “with a vol_info block that is a copy of the vol_info
`block of the snapshot copy on which the clone is based.’” Id. (quoting Pet.
`31‒32). According to Patent Owner, this “container file” is not a newly
`created set of files. Id. “As illustrated in Edwards, this new ‘container file’
`is merely a copy of the ‘vol_info’ block of the volume to be cloned; no new
`set of files is created. Every file in the cloned volume existed prior to the
`creation of the clone itself.” Id. at 30‒31 (citing Ex. 2110 ¶¶ 78‒81)
`(internal citation deleted).
`Petitioner responds, however, that Edwards teaches that FlexClone
`creates a new “FlexVol volume,” which is “a file system created within a file
`on an underlying file system.” Pet. Reply 12‒13 (quoting Ex. 1104, 131).
`Thus, “cloning a volume containing files creates a new FlexVol volume with
`a new file system comprising a new set of files.” Id. at 13 (citing Pet. 31‒
`33, Ex. 1115 ¶¶ 149‒155, Ex. 1133 ¶¶ 18‒22).4 We observe that the claims
`require creating a “virtual restored file system,” not creating new “fi
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