Trials@uspto.gov
`571-272-7822
`
`
`
`Paper: 36
`Entered: March 15, 2019
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TALARI NETWORKS, INC.,
`Petitioner,
`
`v.
`
`FATPIPE PRIVATE NETWORKS LIMITED1,
`Patent Owner.
`____________
`
`Case IPR2016-00976
`Patent 6,775,235 B2
`____________
`
`
`
`
`Before STACEY G. WHITE, MICHELLE N. WORMMEESTER, and
`CHRISTA P. ZADO, Administrative Patent Judges.
`
`WHITE, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`1 We note that Patent Owner’s Updated Mandatory Notice changed the name
`of the Patent Owner. Paper 30.
`
`

`

`IPR2016-00976
`Patent 6,775,235 B2
`
`
`I. INTRODUCTION
`Talari Networks, Inc. (“Petitioner”) seeks rehearing (Paper 34,
`“Request” or “Req. Reh’g”) of our determination in the Final Written
`Decision (Paper 32, “Decision” or “Dec.”) that Petitioner had not met its
`burden to establish the unpatentability of claim 19 of U.S. Patent
`No. 6,775,235 B2 (Ex. 1001, “the ’235 patent”). Petitioner contends that we
`erred in our determination that Karol did not anticipate or render obvious the
`limitation of claim 19, which recites that “the controller sends different
`packets of a given message to different parallel networks.” Req. Reh’g 1.
`“The burden of showing a decision should be modified lies with the
`party challenging the decision.” 37 C.F.R. § 42.71(d). When requesting
`rehearing of a decision, the challenging party must identify specifically all
`matters the party believes the Board misapprehended or overlooked, and the
`place where each matter was previously addressed in the record. Id. We
`have considered Petitioner’s Request, but for reasons that follow, we decline
`to modify our Decision.
`
`II. DISCUSSION
`Petitioner’s contentions are directed to claim 19, which recites, in
`relevant part, “wherein the step of sending a packet to the controller site
`interface is repeated as multiple packets are sent, and the controller sends
`different packets of a given message to different parallel networks.” In the
`Decision, we found that Petitioner did not establish that Karol disclosed
`sending different packets of a given message to different parallel networks.
`Dec. 37. Petitioner contends that we “overlooked the teachings of the
`’235 patent regarding a ‘message,’ misinterpreted the scope of claim 19, and
`misapprehended [Petitioner’s] argument regarding Karol, in finding that
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`IPR2016-00976
`Patent 6,775,235 B2
`
`Karol does not also anticipate or render obvious claim 19.” Req. Reh’g 1.
`According to Petitioner, our analysis as to Karol’s usage of the terms
`“packet,” “datagram,” and “message” was in error because we
`misapprehended the meaning of a message in the context of the ’235 patent.
`Id. at 1–2. All of Petitioner’s arguments are premised on its assertion that a
`session is an example of a message. See generally id. For reasons stated
`below, we disagree with Petitioner’s assertion and thus, we are not
`persuaded of error as to claim 19.
`Petitioner argues that we overlooked the ’235 patent’s teaching as to
`what a “message” is. Id. at 3. As an initial matter, we note that at no point
`during the proceeding did Petitioner assert that “message” had been defined
`by the Patentee. See Pet. 7–8; Reply 1. Now, Petitioner contends that, “the
`’235 patent expressly states that a ‘session’ is a ‘message.’” Id. Petitioner
`relies on the following passage from the ’235 patent to support that
`assertion:
`Security: divide the packets of a given message (session, file,
`web page, etc.) so they travel over two or more disparate
`networks, so that unauthorized interception of packets on fewer
`than all of the networks used to carry the message will not
`provide the total content of the message.
`Ex. 1001, 11:40–43.
`As an initial matter, we note that Petitioner did not discuss this
`passage of the’235 patent in its Petition or Reply Brief. Petitioner’s
`declarant, Dr. Kevin Negus, mentioned it once as part of the overview of the
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`IPR2016-00976
`Patent 6,775,235 B2
`
`patent (Ex. 1005 ¶ 602), however, Petitioner did not reference or otherwise
`discuss this passage in its discussion of claim 19. Thus, we could not have
`overlooked or misapprehended Petitioner’s argument because it was not
`made during the trial.
`Further, we disagree with Petitioner’s reading of this portion of the
`Specification. In this portion of the ’235 patent, the Specification is
`describing “criteria [that] may be used to select a path for a given packet, for
`a given set of packets, and/or for packets during a particular time period.”
`Id. at 11:8–10. This passage discusses path selection to address redundancy,
`load-balancing, and security. Id. at 11:11–63. Petitioner focuses on the
`portion that describes path selection to address security concerns. The
`patent describes improving security by dividing “the packet of a given
`message (session, file, web page, etc.).” Id. at 11:40–43. According to
`Petitioner this parenthetical, “(session, file, web page, etc.),” describes other
`examples of a message. Req. Reh’g at 4. We are not persuaded that this
`parenthetical phrase should be construed in that manner. For example,
`“etc.” is listed in that parenthetical phrase and that indicates this is a listing
`of alternatives and not necessarily equivalents. In other words, the passage
`describes enhancing security by dividing packets from a message or other
`source such as a session, file, web page, etc. Thus, we are not persuaded
`
`
`2 Petitioner cites this portion of Dr. Negus’s report as part of its general
`discussion of the ’235 patent. Pet. 5–6. That paragraph, however, was cited
`to support its description of the ’235 patent as teaching “that secure routing
`paths were used to route to ‘Internet-based communication solutions such as
`VPNs and Secure Sockets Layer (SSL).’ (See, e.g., Ex. 1001 at 4:5-10; Ex.
`1005 at ¶¶ 60, 115.)” Id. This portion of the Petition provided background
`for Petitioner’s general understanding of the ’235 patent, but it did not
`address Petitioner’s specific contentions as to claim 19.
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`IPR2016-00976
`Patent 6,775,235 B2
`
`that the cited passage supports Petitioner’s argument that the Patentee
`viewed sessions, files, and web pages to be examples of messages.
`Petitioner’s arguments as to claim 19 are premised on its assertion that
`the ’235 patent defines a session as a type of message. See Reh’g Req. at 4
`(“Karol describes a ‘logical grouping of datagrams into a message’
`(compare Decision at 37 (emphasis added)) because a ‘session’ is a
`‘message’ in the context of the ’235 patent.”); id at 5 (“In view of the ’235
`patent’s teaching that a ‘session’ is a ‘message,’ Karol discloses sending
`different packets of a given message (i.e., session) to different parallel
`networks.”); id. at 6 (“Talari’s argument is not based on the use of the term
`‘message’ in Karol (see Decision at 37), but rather, the use of the term
`‘message’ as set forth in the ’235 patent.”). We are not persuaded that the
`Specification of the ’235 patent supports Petitioner’s argument that a session
`is a message. Thus, we are not persuaded that Petitioner has shown that we
`have overlooked or misapprehended its arguments concerning claim 19.
`Therefore, we are not persuaded of error in our determination that Petitioner
`had not proven by a preponderance of the evidence the unpatentability of
`claim 19.
`
`III. CONCLUSION
`Having considered Petitioner’s Request, Petitioner has not persuaded
`us, for the reasons discussed, that our Decision should be modified.
`
`
`IV. ORDER
`
`Accordingly, it is:
`ORDERED that Petitioner’s Request for Rehearing is denied.
`
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`IPR2016-00976
`Patent 6,775,235 B2
`
`For PETITIONER:
`Andy Chan
`Charles Koch
`PEPPER HAMILTON LLP
`chana@pepperlaw.com
`kochc@pepperlaw.com
`
`For PATENT OWNER:
`Robert Mattson
`Sameer Gokhale
`OBLON, MCLELLAND, MAIER & NEUSTADT, LLP
`cpdocketmattson@oblon.com
`cpdocketgokhale@oblon.com
`
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