Trial@uspto.gov
`571-272-7822
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` Paper 10
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` Entered: October 26, 2015
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SOPHOS LTD. and SOPHOS, INC.,
`Petitioner,
`
`v.
`
`FORTINET, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00911
`Patent 8,205,251 B2
`____________
`
`
`
`
`
`Before MICHAEL R. ZECHER, MATTHEW R. CLEMENTS, and
`MINN CHUNG, Administrative Patent Judges.
`
`CLEMENTS, Administrative Patent Judge.
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`
`
`
`
`
`
` Paper 10
`
`
` Entered: October 26, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SOPHOS LTD. and SOPHOS, INC.,
`Petitioner,
`
`v.
`
`FORTINET, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00911
`Patent 8,205,251 B2
`____________
`
`
`
`
`
`Before MICHAEL R. ZECHER, MATTHEW R. CLEMENTS, and
`MINN CHUNG, Administrative Patent Judges.
`
`CLEMENTS, Administrative Patent Judge.
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`
`
`
`IPR2015-00911
`Patent 8,205,251 B2
`
`I. INTRODUCTION
`Petitioner, Sophos Limited and Sophos Incorporated (“Sophos”),
`timely filed a Request for Rehearing under 37 C.F.R. § 42.71(d). Paper 9
`(“Req. Reh’g”). Sophos’ Request for Rehearing seeks reconsideration of
`our Decision Denying Institution (Paper 8, “Dec.”), particularly our
`determination not to institute an inter partes review as to Sophos’ asserted
`grounds of unpatentability (“grounds”) based, in whole or in part, on
`Taylor.1 Req. Reh’g 2 (Sophos “only seek[s] rehearing of the grounds based
`on Taylor”); see Dec. 7–12, 16–17.
`In its Request for Rehearing, Sophos contends that our determination
`not to institute an inter partes review as to its asserted grounds based, in
`whole or in part, on Taylor is improper for at least three reasons. First,
`Sophos argues that we overlooked certain disclosures in Taylor and
`testimony from Charles P. Pfleeger, Ph.D. that supports its assertion that
`Taylor’s proxy 211 applies filtering rules. Req. Reh’g. 4–6. Second,
`Sophos argues that we overlooked certain disclosures in Taylor and the
`testimony of Dr. Pfleeger that support its assertion that one of ordinary skill
`in the art would have understood that Tayler describes “reassembling the
`application-level content from a plurality of packets of the packet stream,”
`as recited in independent claims 1, 17, and 26. Id. at 6–8. Third, Sophos
`argues that we applied the wrong legal standard when determining that the
`“reassembling” and “scanning” of application-level content, as required by
`independent claims 1, 17, and 26, is not disclosed, either expressly or
`inherently, in Taylor. Id. 8–10.
`
`
`1 U.S. Patent No. 6,728,885 B1, issued Apr. 27, 2004 (Ex. 1006, “Taylor”).
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`2
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`IPR2015-00911
`Patent 8,205,251 B2
`As we explain below, we have considered the arguments presented by
`Sophos in its Request for Rehearing, but we discern no sufficient reason to
`modify the Decision Denying Institution. As a consequence, we deny
`Sophos’ Request for Rehearing.
`
`
`II. STANDARD OF REVIEW
`A party requesting rehearing bears the burden of showing that the
`decision should be modified. 37 C.F.R. § 42.71(d). The party must identify
`specifically all matters we misapprehended or overlooked, and the place
`where each matter was addressed previously in a motion, an opposition, or a
`reply. Id. When rehearing a decision on a petition, we review the decision
`for an abuse of discretion. 37 C.F.R. § 42.71(c). An abuse of discretion
`may be indicated if a decision is based on an erroneous interpretation of law,
`if a factual finding is not supported by substantial evidence, or if the
`decision represents an unreasonable judgment in weighing relevant factors.
`Star Fruits S.N.C. v. United States, 393 F.3d 1277, 1281 (Fed. Cir. 2005);
`Arnold P’ship v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004); In re
`Gartside, 203 F.3d 1305, 1315–16 (Fed. Cir. 2000). With this in mind, we
`address the arguments presented by Sophos in turn.
`
`
`III. ANALYSIS
`A. We Did Not Misapprehend or Overlook Sophos’ Argument Directed
`to Whether Taylor Teaches the “Processing” Step, as Required by
`Independent Claims 1, 17, and 26
`Sophos contends the we erroneously relied on “selected” portions of
`
`Taylor’s disclosure to support our determination that Taylors’ filtering rules
`are applied by Dynamic Packet Filter module 207 (“DPF 207”)—not by
`
`3
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`IPR2015-00911
`Patent 8,205,251 B2
`proxy 211. Req. Reh’g 4 (emphasis omitted). In reaching this purported
`erroneous determination, Sophos asserts that we ignored conclusions from
`its expert witness, Dr. Pfleeger, as well as ignored the understanding of one
`of ordinary skill in the art, as established by Dr. Pfleeger. Id. Sophos then
`argues that Taylor’s proxy 211, indeed, applies filtering rules. Id. at 5. To
`support this assertion, Sophos directs us to various disclosures in Taylor and
`the Declaration of Dr. Pfleeger. Id. (citing Ex. 1006, 6:22–25, 6:58–60,
`11:46–48; Ex. 1009 ¶¶ 58, 82, 83, 99).
`
`We do not agree with Sophos that we misapprehended or overlooked
`its argument that Taylor’s proxy 211 applies filtering rules. In its Request
`for Rehearing, Sophos focuses on new disclosures in Taylor that purportedly
`explain how Taylor’s proxy 211 uses filtering rules to allow a connection.
`Compare Pet. 11–12 (citing Ex. 1006, Abstract, 2:60–63, 6:40–44, 11:46–
`48), with Req. Reh’g 4 (citing Ex. 1006, 6:22–25, 6:58–60, 11:46–48). To
`support this new argument, Sophos also directs us to new paragraphs in the
`Declaration of Dr. Pfleeger. Compare Pet. 11–12 (citing Ex. 1009 ¶¶ 83–
`88), with Req. Reh’g. 5 (citing Ex. 1009 ¶¶ 58, 82, 83, 99). A request for
`rehearing is not an opportunity to present new arguments or evidence that
`could have been presented and developed in the Petition. Put simply, we
`could not have overlooked or misapprehended arguments or evidence not
`presented and developed by Sophos in the Petition.
`
`Even if we were to consider Sophos’ newly minted theory that
`Taylor’s proxy 211 applies filtering rules, we still would not be persuaded
`that Taylor properly accounts for the “processing” step performed by a
`proxy module, as required by independent claims 1, 17, and 26. In its
`Request for Rehearing, Sophos directs us to disparate disclosures in Taylor,
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`4
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`IPR2015-00911
`Patent 8,205,251 B2
`and then generally asserts that Taylor accounts for all the features recited in
`the “processing” step. For instance, Sophos cites to and relies upon the
`following disclosures in Taylor: (1) one embodiment of the firewall, as
`illustrated in Figure 3 of Taylor, see, e.g., Ex. 1006, 6:22–25, 6:58–60; and
`(2) the transparency procedure, as illustrated in Figure 6 of Taylor, see, e.g.,
`id. at 11:46–48. Neither Sophos, nor its expert witness, Dr. Pfleeger,
`provides a credible or sufficient explanation as to how one of ordinary skill
`in the art might combine these cited disclosures in Taylor to teach that proxy
`211—not DPF 207—performs the claimed “processing” step. We,
`therefore, maintain our position that Sophos does not present sufficient
`evidence in its Petition to support a finding that Taylor describes the
`“processing” step performed by a proxy module, as required by independent
`claims 1, 17, and 26. See Dec. 10–12.
`B. We Did Not Misapprehend or Overlook Sophos’ Arguments Directed
`to Whether Taylor Teaches the “Reassembling” and “Scanning”
`Steps, as Required by Independent Claims 1, 17, and 26
`
` Sophos contends that we erroneously determined that it did not
`
`present sufficient evidence in its Petition to support a finding that Taylor
`teaches “reassembling the application-level content from a plurality of
`packets of the packet stream,” as recited in independent claims 1, 17, and 26.
`Req. Reh’g 6. To support this assertion, Sophos essentially reiterates the
`arguments and supporting evidence presented in its Petition that purportedly
`explain how Taylor’s process of filtering “all” packets inherently discloses
`reassembling application-level content. Id. (citing Pet. 11–12; Ex. 1009
`¶¶ 55–57, 83–85).
`
`We considered these arguments presented in in Sophos’ Petition, but
`we were not persuaded. See Dec. 9–12. Sophos’ arguments in this regard
`
`5
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`IPR2015-00911
`Patent 8,205,251 B2
`amount to a mere disagreement with our analysis or conclusion. Mere
`disagreement with our analysis or conclusion is not a sufficient basis on
`which to request rehearing. It is not an abuse of discretion to provide
`analysis or conclusion with which Sophos disagrees.
`
`Next, Sophos contends that common sense dictates that it would have
`been obvious to use Taylor’s disclosure of processing a plurality of packets
`in a packet stream to teach the claimed “reassembling” step. Req. Reh’g 7–8
`(citing Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324 (Fed. Cir.
`2009)). We could not have misapprehended or overlooked this argument
`because Sophos does not rely on the Federal Circuit’s decision in Perfect
`Web in its Petition, much less present an argument centered on “common
`sense” reasoning. See generally Pet. 12–14. Instead, the arguments
`presented by Sophos in its Petition are predicated on the doctrine of
`inherency. Id. As we explained in the Decision Denying Institution, we
`were not persuaded by these inherency arguments because Taylor discloses
`processing packets only on a packet-by-packet basis. Dec. 11; see also
`Ex. 1006, 12:5–19 (disclosing that the transparency procedure involves
`processing “the packet”—not application-level content reassembled from a
`plurality of packets).
`To the extent Sophos relies upon the testimony of Dr. Pfleeger to
`bridge the gap in Taylor’s disclosure of processing packets on a packet-by-
`packet basis, we are not persuaded. See, e.g., Ex. 1009 ¶¶ 83–88. Dr.
`Pfleeger does not attempt to reconcile the deficiency we identified in
`Taylor—namely, how Taylor’s disclosure of processing packets on a packet-
`by-packet basis necessary includes reassembling application-level content
`from a plurality of packets. We, therefore, maintain our position that Sophos
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`6
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`IPR2015-00911
`Patent 8,205,251 B2
`has not presented sufficient evidence to support a finding that Taylor teaches
`“reassembling the application-level content from a plurality of packets of the
`packet stream,” as recited in independent claims 1, 17, and 26. See Dec. 11.
`
`Lastly, Sophos contends that we erroneously determined that, because
`Taylor does not disclose expressly that proxy 211 filters or processes
`“application-level content,” Taylor does not teach “reassembling” or
`“scanning” of the application-level content, as required by independent
`claims 1, 17, and 26. Req. Reh’g 8. Sophos once again turns to “common
`sense” reasoning to explain how Taylor’s disclosure of processing content at
`the application layer level inherently makes such content application-level
`content. Id. at 9 (citing Pet. 11–12; Ex. 1009 ¶¶ 58, 83; Perfect Web, 587
`F.3d at 1327, 1331). Sophos also argues that identity of the terminology—in
`this case, the term “application-level content”—is not required for Taylor to
`render the subject matter of the challenged claims obvious. See id. at 9–10.
`
`We do not agree with Sophos that we misapprehended or overlooked
`its argument that Taylor’s proxy 211 necessarily filters or processes
`application-level content. Similar to our analysis above, Sophos’ reliance on
`the “common sense” reasoning discussed in Perfect Web, as well as its
`assertion that identity of terminology is not required, constitutes new
`arguments and evidence presented for the first time in its Request for
`Rehearing. We could not have overlooked or misapprehended arguments or
`evidence not presented and developed by Sophos in the Petition. We,
`therefore, maintain our determination that, because Taylor does not teach
`processing “application-level content,” we are not persuaded by Sophos’
`arguments that the claimed “reassembling” and “scanning” steps are inherent
`in Taylor. See Dec. 10–11.
`
`7
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`IPR2015-00911
`Patent 8,205,251 B2
`
`
`IV. CONCLUSION
`For the foregoing reasons, Sophos has not demonstrated that we
`abused our discretion by not instituting an inter partes review as to Sophos’
`asserted grounds based, in whole or in part, on Taylor.
`
`
`V. ORDER
` Accordingly, it is ORDERED that Sophos’ Request for Rehearing is
`DENIED.
`
`8
`
`
`
`IPR2015-00911
`Patent 8,205,251 B2
`For PETITIONER:
`Gianni Minutoli
`James M. Heintz
`Harpreet Singh
`DLA Piper LLP (US)
`Fortinet-IPRs@dlapiper.com
`
`For PATENT OWNER:
`
`Jason Liu
`Robert Kang
`Quinn Emanuel Urquhart & Sullivan
`jasonliu@quinnemanuel.com
`robertkang@quinnemanuel.com
`
`Michael A. DeSanctis
`Hamilton, DeSanctis & Cha LLP
`mdesanctis@hdciplaw.com
`
`
`
`
`
`9
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