Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 61
`Entered: April 27, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ACTIFIO, INC.,
`Petitioner,
`
`v.
`
`DELPHIX CORP.,
`Patent Owner.
`
`Case IPR2015-001281
`Patent 8,468,174 B1
`
`Before JENNIFER S. BISK, PATRICK R. SCANLON, and
`MINN CHUNG, Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`1 Case IPR2015-00136 has been consolidated with this proceeding.
`
`
`Tel: 571-272-7822
`
`Paper 61
`Entered: April 27, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ACTIFIO, INC.,
`Petitioner,
`
`v.
`
`DELPHIX CORP.,
`Patent Owner.
`
`Case IPR2015-001281
`Patent 8,468,174 B1
`
`Before JENNIFER S. BISK, PATRICK R. SCANLON, and
`MINN CHUNG, Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`1 Case IPR2015-00136 has been consolidated with this proceeding.
`
`
`
`Case IPR2015-00128
`Patent 8,468,174 B1
`
`A. Background
`
`INTRODUCTION
`
`Petitioner, Actifio, Inc., filed two Petitions requesting inter partes
`
`review of claims 1, 4, 5, 27–29, and 34 (the “challenged claims”) of U.S.
`
`Patent No. 8,468,174 B1 (Ex. 1001, “the ’174 patent”). IPR2015-00128,
`
`Paper 1 (“Pet.”); IPR2015-00136, Paper 1 (“’136 Pet.”).2 On April 29,
`
`2015, we consolidated the two proceedings and instituted an inter partes
`
`review based on the following grounds of unpatentability (Paper 7, “Inst.
`
`Dec.”):
`
`Challenged
`Claims
`Edwards, 3 Edwards II,4 Neto,5 and Klivansky6 1, 27, and 28
`
`References
`
`Edwards, Edwards II, Neto, Klivansky, and
`Hart7
`
`4, 5, 29, and 34
`
`This is a Final Written Decision under 35 U.S.C. § 318(a) and 37
`
`C.F.R. § 42.73. For the reasons set forth below, Petitioner has shown by a
`
`
`2 Because of the substantial overlap in the two Petitions, we will cite only to
`the Petition of IPR2015-00128 unless otherwise noted.
`3 John K. Edwards et al., FlexVol: Flexible, Efficient File Volume
`Virtualization in WAFL, 2008 PROC. OF THE 2008 USENIX ANNUAL
`TECHNICAL CONF. 129. Ex. 1003 (“Edwards”).
`4 U.S. Patent No. 7,409,511 B2 issued Aug. 5, 2008. Ex. 1005 (“Edwards
`II”).
`5 ANAND RANGANTHAN & ANTONIO JOSE RODRIGUES NETO, TECHNICAL
`REPORT, SNAPMANAGER 3.0 FOR ORACLE BEST PRACTICES, TR-3761 (2009).
`Ex. 1004 (“Neto”).
`6 MIROSLAV KLIVANSKY, TECHNICAL WHITE PAPER, A THOROUGH
`INTRODUCTION TO FLEXCLONE™ VOLUMES, TR3347 (2004). Ex. 1006
`(“Klivansky”).
`7 U.S. Patent Application Pub. No. 2008/0307345 A1 published Dec. 11,
`2008. Ex. 1007 (“Hart”).
`
`2
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`Case IPR2015-00128
`Patent 8,468,174 B1
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`preponderance of the evidence that claims 1, 4, 5, 27–29, and 34 are
`
`unpatentable.
`
`B. Related Matters
`
`The parties indicate that the ’174 patent is involved in the lawsuit
`
`Delphix Corp. v. Actifio, Inc., Case No. 5:13-cv-04613-BLF (N.D. Cal.).
`
`Pet. 2; Paper 58, 1.
`
`C. The ’174 Patent
`
`The ’174 patent describes computer systems and methods for
`
`efficiently managing multiple copies of databases. Ex. 1001, 1:14–16.
`
`Specifically, the ’174 patent recognizes the growing importance of databases
`
`to an organization’s information technology infrastructure and the increasing
`
`amount of resources required to manage these databases. Id. at 1:16–31. A
`
`typical information technology infrastructure includes production database
`
`servers that run applications managing the daily transactions of the
`
`organization. Id. at 1:32–34. Routine changes and upgrades to a production
`
`database or the applications that work with that database typically require
`
`the use of copies of the production databases in order to protect the
`
`production environment. Id. at 1:34–37. Depending on the process used for
`
`making the change or upgrade at issue, this may involve several copies of
`
`the production database—one for each stage of development such as testing,
`
`certification, and training. Id. at 1:37–44. Because production databases are
`
`typically large and complex, the practice of making multiple full copies of
`
`these databases is expensive and inefficient. Id. at 1:44–52.
`
`
`8 Because of the substantial overlap in the two proceedings, unless otherwise
`noted, all citations of Papers and Exhibits are from IPR2015-00128.
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`3
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`Patent 8,468,174 B1
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`The ’174 patent recognizes these problems and proposes creating “virtual
`
`databases” that share information so that multiple copies of database
`
`information are made only if necessary. Id. at 2:67–3:32. “Systems and
`
`methods for creating and using virtual databases are disclosed in [U.S.
`
`Patent No. 8,150,808 (“the ’808 patent”)], which is incorporated by
`
`reference in its entirety.” Id. at 4:6–9.
`
`The ’808 patent describes one virtual database embodiment
`
`represented by Figure 2a, “production database system 110 . . . is the source
`
`of the database being virtualized” to create virtual database 220 using virtual
`
`database files stored in database storage system 100. Ex. 2002, 6:59–65.
`
`Figure 2a of the ’808 patent is reproduced below.
`
`
`
`Figure 2a depicts production database system 110, virtual database DB1 220
`
`stored in database storage system 100, and virtual database system 130, which
`
`accesses virtual database 220. Id. at 6:59–7:20.
`
`To virtualize a production database, the system of the ’808 patent
`
`makes a first “point-in-time” (“PIT”) copy of the production database and
`
`stores an entire set of database blocks representing the production database
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`at that time in database storage system 100. See id. at 18:27–36, Fig. 10.
`
`Subsequent PIT copies involve incremental changes and copy “only the
`
`blocks that changed since the last PIT copy and may copy much less data
`
`compared to the first PIT copy.” Id. at 18:38–41. A virtual database (VDB)
`
`is created by creating virtual database (VDB) file structures comprising
`
`VDB blocks that point to different PIT database blocks. See id. at 18:27–55.
`
`Each time an updated PIT copy is received at database storage system 100
`
`reflecting changes in the production database, the system updates the
`
`appropriate VDB blocks in a VDB file which are “implemented as pointers
`
`to the actual database block that stores the [updated] data.” See id. at 18:44–
`
`55.
`
`
`
`The ’808 patent discloses several embodiments for making PIT copies
`
`of the production database including, by streaming data to the database
`
`storage system and, alternatively, using file sharing. In “the streaming
`
`embodiment,” which is depicted in Figures 4 and 5 and described in column
`
`12, line 14 to column 14, line 67 of the ’808 patent (see id. at 3:29–37
`
`(describing Figures 4 and 5 as “an embodiment of the invention”)), the
`
`production database system, upon receiving a request for data from the
`
`point-in-time copy manager of the database storage system (id. at 12:19–23),
`
`packages the production database data “into a format that can be processed
`
`by the point-in-time copy manager” (id. at 12:58–62) and builds the
`
`appropriately formatted data into a data stream that is sent to the point-in-
`
`time copy manager. Id. at 12:62–13:3. In some embodiments, “the
`
`production system library 385 includes code” in this stream for analyzing the
`
`structures of the files of the database or process metadata “associated with
`
`database blocks.” Id. at 13:11–16.
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`Upon receiving the data stream, the point-in-time copy manager
`
`processes the data stream to identify database blocks contained in it. Id. at
`
`13:27–33. In the data stream, “[e]ach database block includes metadata” (id.
`
`at 13:33–34), which is used, for example, to “identify database block
`
`boundaries in the stream of data” (id. at 14:22–25). When saving a retrieved
`
`database block into a transferred or copied database file on the database
`
`storage system, the point-in-time copy manager “analyzes the database block
`
`metadata to map [] the database block to [the] database file and a location
`
`within the file.” Id. at 14:29–31.
`
`In the “file sharing embodiment” for making PIT copies of a
`
`production database, transfer of production database data is achieved by
`
`“using a file sharing system similar to the file sharing system 120” (id. at
`
`7:57–64), such as a network file system (NFS) (id. at 10:35–37). Figure 1,
`
`which is identical in both the ’174 and the ’808 patents, is reproduced below.
`
`
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`6
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`Figure 1 illustrates the file sharing embodiment for copying
`
`information from a production database to a database storage system to
`
`create a VDB. Ex. 1001, 4:11–14. Database storage system 100
`
`periodically sends request 150 for data to a production database system 110.
`
`Id. at 4:26–35. Production database system 110 responds by sending
`
`information representing changes of data stored in the production database
`
`since the last response 160 sent by the production database system 110. Id.
`
`Database storage system 100 receives and stores the data and “may analyze
`
`the data 160 to determine whether to store the information or skip the
`
`information if the information is not useful for reconstructing the database at
`
`previous time points.” Id. at 4:35–41. “In some embodiments information
`
`may be copied from storage level snapshots of production databases or
`
`clones of production databases instead of a live production database.” Id. at
`
`4:16–19.
`
`Figure 10 from the ’808 patent is reproduced below.
`
`
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`7
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`Figure 10 shows “VDB Files for Time T2” in database storage system 100.
`
`Figure 10 further shows that “VDB file structures 1050” include blocks V11,
`
`V12, V13, and V14 which point to database blocks F11 . . . F34 that
`
`represent different PIT (i.e., at times T0, T1, and T2) copies of production
`
`database blocks F1, F2, F3, and F4 at production database system 110.
`
`Initially, all the production database blocks are copied to create “[t]he first
`
`PIT copy 1030 made at time T0,” as represented by database blocks F11,
`
`F12, F13, and F14 in database storage system 100. Ex. 2002, 18:35–38.
`
`Later, when the PIT copy made at time T2 is received and the VDB blocks
`
`are updated, block V13 points to the updated data at block F33, which
`
`represents a change existing at T2 to the data in block F3 in the production
`
`database (see id. at 18:53–55), whereas VDB block V11 still points to the
`
`data in block F11 “since the [production database] block F1 was never
`
`updated during copies made at time T1 and T2” (id. at 18:49–51).
`
`Figure 9 of the ’174 patent illustrates how database blocks may be
`
`shared by file structured created for different VDBs. Figure 9 of the ’174
`
`patent is reproduced below.
`
`8
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`
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`Figure 9 of the ’174 patent illustrates how database blocks stored on the
`
`storage system data store may be shared by file structures created for
`
`different virtual databases. Ex. 1001, 2:28–31, 14:1–3. Blocks V13 and
`
`V14 of the file structure 950(a) point at the latest copy of the blocks F33 and
`
`F34 that are not shared with the VDB files 950(b). Id. at 14:4–6. However,
`
`Block V11 of file structure 950(a) shares database block F11 with block U11
`
`of file structure 950(b). Id. at 14:6–8. Similarly, Block V12 of file structure
`
`950(a) shares database block F22 with block U12 of file structure 950(b).
`
`Id. at 14:8–9.
`
`As mentioned above, the ’174 patent incorporates by reference the
`
`entirety of the ’808 patent for describing the creation and use of virtual
`
`databases, but the focus of the ’174 patent is on interfacing and interacting
`
`with these systems. Ex. 1001, Title, 1:14–16, 4:6–9. To this end, the ’174
`
`9
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`patent discloses a user interface which “allows a database administrator to
`
`perform various actions supported by the database storage system.” Id. at
`
`4:22–25. Figure 4 of the ’174 patent is reproduced below.
`
`
`
`Figure 4 of the ’174 patent illustrates an interface for allowing a user
`
`to select a source database to create a virtual database. Id. at 2:10–11. In the
`
`user interface, production database systems 110 are displayed as data
`
`sources 420 and “[e]ach data source [420] may display one or more source
`
`databases 410.” Id. at 11:21–26. “In response to the user selecting a
`
`particular source database 410, the user interface provides information
`
`describing the source database including its status, size, name etc. as well as
`
`information describing the various point-in-time copies 430 stored on the
`
`database storage system 100.” Id. at 11:35–39. For each point-time-copy
`
`430, the information provided includes the time at which it was made, the
`
`source database from which it was made—which “can be a virtual database
`
`associated with the database source”—as well as information describing the
`
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`production database system 110 hosting the source database. Id. at 11:39–
`
`46. Figure 5 of the ’174 patent is reproduced below.
`
`
`
`Figure 5 of the ’174 patent illustrates the interface for allowing a user to
`
`select a particular point in time associated with the source database for
`
`creating a virtual database based on the selected point in time. Id. at 2:13–
`
`16. In this example, the user selects a point-in-time copy 510 based on
`
`source database 540 for creation of a virtual database. Id. at 12:12–14. User
`
`interface 520, shown by a timeline, allows the user to select a time point,
`
`using slider 530, in between the time of copying of two point-in-time copies.
`
`Id. at 12:14–35.
`
`D. Illustrative Claim
`
`Of the challenged claims in the ’174 patent, claims 1, 27, and 28 are
`
`independent. Claim 1 is illustrative and recites:
`
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`Patent 8,468,174 B1
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`1. A method of creating a virtual database system, the method
`comprising:
`
`receiving information identifying a source database for
`providing data for storage in a first virtual database and a
`second virtual database being created;
`
`receiving information identifying a first point in time, such
`that the source database comprises information stored
`prior to the first point in time;
`
`receiving information identifying a first destination database
`server for accessing the first virtual database being
`created; and
`
`creating the first virtual database on a storage system storing
`a plurality of point-in-time copies of the source database,
`the point-in-time copies comprising database blocks such
`that at least some of the database blocks are associated
`with multiple point-in-time copies of the source database,
`the creating of the first virtual database comprising;
`
`
`
`creating a first set of files for the first virtual database,
`each file in the first set of files linked with a first set of
`database blocks comprising information stored in the
`source database prior to the first point in time; and
`
` mounting the first set of files on the first destination
`database server allowing the first destination database
`server to read from and write to the first set of files;
`
`receiving information identifying a second point in time,
`such that the source database comprises information
`stored prior to the second point in time;
`
`receiving information identifying a second destination
`database server for accessing the second virtual database
`being created; and
`
`12
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`creating the second virtual database on the storage system,
`the creating of the second virtual database comprising;
`
`
`
`creating a second set of files for the second virtual
`database, each file in the second set of files linked with a
`second set of database blocks comprising information
`stored in the source database prior to the second point in
`time; and
`
`mounting the second set of files on the second destination
`database server allowing the second destination database
`server to read from and write to the second set of files.
`
`Ex. 1001, 18:57–19:31.
`
`A. Printed Publication—Neto and Klivansky
`
`ANALYSIS
`
`Patent Owner contests that Neto and Klivansky are prior art “printed
`
`publications” in accordance with 35 U.S.C. §§ 102 and 311(b). Paper 17
`
`(“PO Resp.”), 1‒4. 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 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).
`
`13
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`Initially, we note our disagreement with Patent Owner’s contention
`
`that Petitioner cannot rely upon evidence not submitted with the Petition to
`
`show that Neto and Klivansky are prior art. PO Resp. 2‒4. In Patent
`
`Owner’s view, Petitioner must make out a prima facie case of
`
`unpatentability in its Petition, which includes the substantive element of
`
`Neto and Klivansky being publicly accessible and prior art. Id. at 3–4. That
`
`position, however, is not informed by the difference between the threshold
`
`for instituting a trial (35 U.S.C. § 314(a)) and 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 6) we determined there was a reasonable
`
`likelihood that Petitioner would prevail in its challenges that included Neto
`
`and Klivansky. Inst. Dec. 31; 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 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” and that Edwards, Edwards II, Neto, and Klivansky
`
`“were published over a span of five years.” Paper 6, 45, 47 (emphasis
`
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`added). 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 Neto and Klivansky, 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 declarations
`
`filed after the Petition. These declarations include two declarations provided
`
`by Louis Hernandez (Ex. 1020) and Joseph Ortiz (Ex. 1028) in response to
`
`objections by Patent Owner9 and a Supplemental Declaration by Mr.
`
`Hernandez (Ex. 1048) filed with its Reply. PO Resp. 2–4. 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 Neto and Klivansky
`
`are not printed publications.
`
`Turning to the substance of Exhibit 1020, 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. 1020 ¶¶ 1, 2,
`
`4. Mr. Hernandez testifies further that for most of his time at NetApp, as a
`
`
`9 Exhibit 1028 is expunged at Petitioner’s request. We do not further discuss
`the Exhibit. We address Patent Owner’s motions to exclude these
`documents in a separate section, below.
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`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 Neto and Klivansky, and that they
`
`were published during his tenure at NetApp or his subsequent tenure at
`
`Midwave, a certified distributor and reseller of NetApp. Id. ¶¶ 7, 8, 14–17.
`
`Patent Owner argues Mr. Hernandez does not declare that Neto or
`
`Klivansky 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. Paper 24 (“Reply”) 7‒8 (citing Ex. 1048). 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 alliances as of the month and year that appeared on
`
`the face of the documents, non-confidentially. Ex. 1048 ¶ 5. According to
`
`Mr. Hernandez, NetApp had more than two hundred Systems Engineers and
`
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`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 reflected 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. Reply 6; Ex. 1058,
`
`3.10
`
`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 38) and Petitioner’s Response (Paper 44), insofar as they
`
`relate to public accessibility of Neto and Klivansky.11 We acknowledge the
`
`potential for bias in Mr. Hernandez’s testimony as a present employee of
`
`
`10 We find that Exhibit 1058, 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.
`
`11 During the Hearing, Patent Owner asked for, and we granted, additional
`time to consider its oral Hearing arguments regarding alleged new issues
`(regarding publication) raised in Petitioner’s Reply in lieu of filing a Sur-
`Reply. See Paper 60, 211:16–212:18; 224:13–21; 237:1–25.
`
`17
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`Patent 8,468,174 B1
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`Petitioner. We find, however, the testimony in Mr. Hernandez’s
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`Declarations as to public accessibility of Neto and Klivansky to be credible.
`
`As an earlier panel of the Board has found, in a proceeding involving a
`
`different patent and different parties, documents such as Neto and Klivansky
`
`are dated technical documents or whitepapers, having no indication of being
`
`mere drafts or internal papers, each of which is “a type of document whose
`
`very purpose is public disclosure.” Veeam Sw. Corp. v. Symantec Corp.,
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`Case IPR2014-00089, slip op. at 14 (PTAB Apr. 25, 2014) (Paper 9).
`
`Finally, Petitioner also submits a declaration it says was produced in
`
`response to Patent Owner’s evidentiary objections. Reply 5. Petitioner
`
`provided the declaration from the office manager of the Internet Archive
`
`(Wayback Machine). Id. (citing Ex. 1023). Klivansky is dated October
`
`2004 and is designated “TR3347” (or Technical Report 3347). Ex. 1006, 1.
`
`According to the testimony regarding how the Internet Archive works (Ex.
`
`1023 ¶¶ 3‒5), we find the evidence indicates that Klivansky was available
`
`on NetApp’s commercial website on, or at least as early as, November 17,
`
`2004. Ex. 1023, 38. Exhibit 1023 indicates that Klivansky was, thus,
`
`“sufficiently accessible to the public interested in the art.” See In re Lister,
`
`583 F.3d at 1311.
`
`“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)). Petitioner asserts that the level of ordinary skill is not disputed
`
`18
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`Case IPR2015-00128
`Patent 8,468,174 B1
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`in this case and that “[t]here is no difference between customers and
`
`potential customers of NetApp and a [person of ordinary skill in the art].”
`
`Reply 6–7. Mr. Hernandez testifies that NetApp’s customers and potential
`
`customers were entities or individuals who were “interested in data storage
`
`technology, data management technology, database storage and management
`
`technology, and related technologies.” Ex. 1048 ¶ 3. As discussed above,
`
`Mr. Hernandez also testifies NetApp had more than two hundred Systems
`
`Engineers and other sales personnel during the period of 2004–2009 who
`
`distributed NetApp’s technical documents (including Neto) to “thousands”
`
`of customers and potential customers. Id. ¶ 4. Hence, the record supports
`
`Petitioner’s contention that Neto was distributed to persons interested and
`
`ordinarily skilled in the subject matter of database technology at the time of
`
`its publication. See Reply 6–7. In view of the foregoing considerations, we
`
`find that Petitioner has established, by a preponderance of the evidence, that
`
`Neto (dated April 2009) was sufficiently disseminated to persons of ordinary
`
`skill interested in database technology to be deemed “publicly accessible” at
`
`least more than one year before November 30, 2010, the earliest possible
`
`priority date of the ʼ174 patent. See Ex. 1001, (60). Petitioner has also
`
`established, by a preponderance of the evidence, that Klivansky (dated
`
`October 2004) was available to the interested public at least more than one
`
`year before the critical date. Therefore, on this record, we determine Neto
`
`and Klivansky qualify as prior art printed publications under 35 U.S.C.
`
`§ 102(b).
`
`B. Claim Construction
`
`We interpret claims of an unexpired patent using the broadest
`
`reasonable construction in light of the specification of the patent in which
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`19
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`Case IPR2015-00128
`Patent 8,468,174 B1
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`they appear. See 37 C.F.R. § 42.100(b). On this record and for purposes of
`
`this Decision, we determine that only the claim terms addressed below
`
`require express construction.
`
`1. “database block”
`
`In the Institution Decision, we preliminarily construed the term
`
`“database block,” as “a unit of data used by a database.” Inst. Dec. 14. In
`
`its Response (Paper 17, “PO Resp.”), Patent Owner asserts that this
`
`definition is impermissibly broad. PO Resp. 18–28. Patent Owner’s
`
`proposed construction is “a unit of data used by a database which comprises
`
`a specific number of bytes stored in the storage, a portion of which stores
`
`metadata associated with the unit of data.” Id. at 18 (emphasis added).
`
`Petitioner, on the other hand, agrees with our conclusion in the Decision to
`
`Institute. Paper 25 (“Reply”) 11–15.
`
`a. Metadata Associated with the Database Block
`
`The main dispute between the parties centers on whether a database
`
`block must necessarily include metadata. Patent Owner asserts that it does
`
`(PO Resp. 18), and Petitioner disagrees (Pet. 11). We agree with Petitioner.
`
`We begin our analysis by considering the language of the claims
`
`themselves. Phillips v. AWH Corp., 415 F.3d 1303, 1314, 1315 (Fed. Cir.
`
`2005) (en banc). The term “metadata” is not recited in any of the claims of
`
`the ’174 patent. The ’808 patent, however, includes two claims that recite
`
`“metadata”—dependent claims 32 and 33, which are not challenged in any
`
`proceeding, of which we are aware, currently before the Board. These
`
`claims depend indirectly from claim 1 of the ’808 patent and expressly recite
`
`“metadata of database blocks.” Thus, had the patentees intended to limit
`
`“database blocks” recited in the claims of the ’174 patent to require
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`20
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`metadata, they demonstratively could have done so by explicitly modifying
`
`the disputed term with “metadata,” but did not.
`
`Moving to the specification, Patent Owner asserts that the following
`
`passage in the Summary section of the ’808 patent defines the term
`
`“database block.”
`
`A database block is a unit of data used by a database and
`comprises a specific number of bytes stored in the storage. A
`database block can also be referred to as a page. A portion of the
`database block stores metadata associated with the database
`block.
`
`PO Resp. 18–19 (quoting Ex. 2002, 2:7–12).
`
`The first phrase in the cited passage above explicitly defines the term, by
`
`stating “[a] database block is a unit of data used by a database.”12 Ex. 2002,
`
`2:7–9. Although the sentence following shortly thereafter states that a
`
`database block “stores metadata,” that sentence by itself is insufficient to
`
`limit the disputed term by requiring the unclaimed “metadata” feature
`
`because it does not state unambiguously that all “database blocks” must
`
`include metadata. See Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898,
`
`906 (Fed. Cir. 2004) (construing a claim term broadly because “[n]o
`
`statement in the written description [ ] constitute[d] a limitation on the scope
`
`of the invention”) (quoting Brookhill-Wilk 1, LLC. v. Intuitive Surgical, Inc.,
`
`334 F.3d 1294, 1301 (Fed. Cir. 2003)). Further, the cited passage also does
`
`
`12 The first sentence also states a database block comprises “a specific
`number of bytes stored in the storage.” For the reasons discussed below, we
`find this addition is not part of the explicit definition but, rather, represents
`embodiments within the defined term. Patent Owner also fails to explain
`how to interpret this particular phrase or how it presents a material issue
`related to the prior art.
`
`21
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`not exclude the possibility of some database blocks not having any metadata.
`
`See id. at 908 (passages in the Summary of the Invention section of a patent
`
`did not limit the scope of the invention because the passages, “although
`
`focusing on the use of the invention in co
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