Trials@uspto.gov
`571.272.7822
`
`
`Paper No. 11
`Filed: November 21, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`VERITAS TECHNOLOGIES, LLC,
`Petitioner,
`
`v.
`
`REALTIME DATA LLC,
`Patent Owner.
`_______________
`
`Case IPR2017-01688
`Patent 7,161,506 C2
`_______________
`
`Before JASON J. CHUNG, SCOTT C. MOORE, and
`SHEILA F. MCSHANE, Administrative Patent Judges.
`
`CHUNG, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`Grant of Motion for Joinder
`37 C.F.R. § 42.122(b)
`
`
`
`
`
`
`
`
`
`571.272.7822
`
`
`Paper No. 11
`Filed: November 21, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`VERITAS TECHNOLOGIES, LLC,
`Petitioner,
`
`v.
`
`REALTIME DATA LLC,
`Patent Owner.
`_______________
`
`Case IPR2017-01688
`Patent 7,161,506 C2
`_______________
`
`Before JASON J. CHUNG, SCOTT C. MOORE, and
`SHEILA F. MCSHANE, Administrative Patent Judges.
`
`CHUNG, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`Grant of Motion for Joinder
`37 C.F.R. § 42.122(b)
`
`
`
`
`
`
`
`
`
`
`Case IPR2017-01688
`Patent 7,161,506 C2
`
`
`A. Background
`
`I.
`
`INTRODUCTION
`
`On June 28, 2017, Veritas Technologies, LLC (“Petitioner”) filed a
`
`Petition (Paper 1, “Pet.”) requesting inter partes review of claims 104 and
`
`105 (“the challenged claims”) of U.S. Patent No. 7,161,506 C2 (Ex. 1001,
`
`“the ’506 patent”). Concurrently with the Petition, Petitioner filed a Motion
`
`for Joinder (Paper 3, “Mot.”), requesting that this proceeding be joined with
`
`Dell, Inc. et al. v. Realtime Data LLC, Case IPR2017-00176 (“176 IPR”).
`
`Mot. 1. Realtime Data LLC (“Patent Owner”) did not file an Opposition to
`
`the Motion for Joinder and did not file a Preliminary Response.
`
`We have jurisdiction under 35 U.S.C. § 314(a), which provides that an
`
`inter partes review may not be instituted “unless . . . there is a reasonable
`
`likelihood that the Petitioners would prevail with respect to at least 1 of the
`
`claims challenged in the petition.” For the reasons discussed below, we
`
`institute an inter partes review of all challenged claims and grant
`
`Petitioner’s Motion for Joinder.
`
`B. Related Proceedings and Asserted Grounds of Unpatentability
`
`In the 176 IPR, we instituted an inter partes review of claims 104 and
`
`105 the ’506 patent under 35 U.S.C. § 103(a) as unpatentable over
`
`2
`
`
`
`Case IPR2017-01688
`Patent 7,161,506 C2
`
`
`Franaszek1, Hsu2, and Sebastian3. 176 IPR, slip op. at 4, 19 (PTAB Nov. 4,
`
`2016) (Paper 19).
`
`The Petition in this proceeding challenges the same claims on
`
`identical grounds of unpatentability, and relies on the same evidence and
`
`arguments as presented in the 176 IPR. Pet. 1; Mot. 1–2. Petitioner
`
`represents that “[i]ntentionally, the Petition is nearly word-for-word identical
`
`to the petition in the [176] IPR in an effort to avoid multiplication of issues
`
`before the Board” and relies upon similar evidence, including an “essentially
`
`identical” expert declaration. Mot. 1–2. Petitioner notes that its Petition is
`
`“supplemented with additional support.” Pet. 1. Patent Owner did not file a
`
`Preliminary Response and has not presented any arguments regarding the
`
`merits of the Petition.
`
`For the above reasons, in particular the fact that the present Petition is
`
`virtually identical to the petition in the 176 IPR, we determine Petitioner has
`
`demonstrated sufficiently under 35 U.S.C. § 314 that an inter partes review
`
`should be instituted in this proceeding on the same grounds of
`
`unpatentability as the grounds on which we instituted inter partes review in
`
`the 176 IPR.
`
`
`1 US Patent No. 5,870,036, filed Feb. 24, 1995, issued Feb. 9, 1999 (176
`IPR, Exhibit 1004, “Franaszek”).
`2 W. H. Hsu and A. E. Zwarico, “Automatic Synthesis of Compression
`Techniques for Heterogeneous Files,” Software—Practice and Experience,
`Vol. 25(10), 1097–1116 (1995) (176 IPR, Exhibit 1005, “Hsu”).
`3 US Patent No. 6,253,264 B1, filed Mar. 6, 1998, issued June 26, 2001 (176
`IPR, Exhibit 1030, “Sebastian”).
`
`3
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`
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`Case IPR2017-01688
`Patent 7,161,506 C2
`
`
`C. The ’506 Patent
`
`The ’506 patent describes systems and methods “for providing fast
`
`and efficient data compression using a combination of content independent
`
`data compression and content dependent data compression.” Ex. 1001,
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`Abst. The ’506 patent further describes the input data type includes a
`
`plurality of disparate data types. Id.
`
`D. Challenged Claims
`
`As noted above, Petitioner challenges claims 104 and 105 of the ’506
`
`patent, both of which are independent claims. Claim 104 and 105 are
`
`reproduced below:
`
`104. A computer implemented method for compressing data,
`comprising:
`
`analyzing data within a data block of an input data stream to
`identify one or more data types of the data block, the input data
`stream comprising a plurality of disparate data types;
`
`performing content dependent data compression with a content
`dependent data compression encoder if a data type of the data
`block is identified; and
`
`performing data compression with a single data compression
`encoder, if a data type of the data block is not identified;
`
`wherein the analyzing of the data within the data block to identify
`one or more data types excludes analyzing based only on a
`descriptor that is indicative of the data type of the data within the
`data block.
`
`Ex. 1001, 6:34–49.
`
`105. A computer implemented method comprising:
`
`receiving a data block in an uncompressed form, said data block
`being included in a data stream;
`
`analyzing data within the data block to determine a type of said
`data block; and
`
`4
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`Case IPR2017-01688
`Patent 7,161,506 C2
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`compressing said data block to provide a compressed data block;
`
`wherein if one or more encoders are associated to said type,
`compressing said data block with at least one of said one or more
`encoders, otherwise compressing said data block with a default
`data compression encoder, and
`
`wherein the analyzing of the data within the data block to identify
`one or more data types excludes analyzing based only on a
`descriptor that is indicative of the data type of the data within the
`data block.
`
`Id. at 6:50–64.
`
`E. Motion for Joinder
`
`An inter partes review may be joined with another inter partes
`
`review, subject to certain statutory provisions:
`
`(c) JOINDER.—If the Director institutes an inter partes review,
`the Director, in his or her discretion, may join as a party to that
`inter partes review any person who properly files a petition under
`section 311 that the Director, after receiving a preliminary
`response under section 313 or the expiration of the time for filing
`such a response, determines warrants the institution of an inter
`parties review under section 314.
`
`35 U.S.C. § 315(c); see also 37 C.F.R. § 42.122 (Any request for joinder
`
`must be filed, as a motion under § 42.22, no later than one month after the
`
`institution date of any inter partes review for which joinder is requested).
`
`A motion for joinder should (1) set forth reasons why joinder is
`
`appropriate; (2) identify any new grounds of unpatentability asserted in the
`
`petition; (3) explain what impact (if any) joinder would have on the trial
`
`schedule for the existing review; and (4) address specifically how briefing
`
`and discovery may be simplified. See, e.g., Kyocera Corp. v. Softview LLC,
`
`Case IPR2013–00004, slip op. at 4 (PTAB Apr. 24, 2013) (Paper 15). As
`
`5
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`Case IPR2017-01688
`Patent 7,161,506 C2
`
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`the moving party, Petitioner bears the burden of proving that it is entitled to
`
`the requested relief. 37 C.F.R. § 42.20(c).
`
`As an initial matter, the present Motion for Joinder meets the
`
`requirements of 37 C.F.R. § 42.122(b) because the Motion was filed on June
`
`28, 2017, which is not later than one month after the 176 IPR was instituted
`
`on May 30, 2017.
`
`Additionally, the present Petition challenges the same claims of the
`
`same patent as those under inter partes review in the 176 IPR, and the
`
`Petition also asserts the same grounds of unpatentability based on the same
`
`prior art and the same evidence, including the same declaration testimony.
`
`Mot. 1–2; compare Pet. 15, 44, with 176 IPR, Paper 1, 14, 43; Exs. 1031,
`
`1032, 1033. The Petition does not assert any other grounds of
`
`unpatentability not already of record in the 176 IPR. Indeed, the Petition
`
`repeats almost verbatim most of the content of the petition in the 176 IPR.
`
`See Pet. 1; Mot. 1–2. Petitioner notes, however, that its Petition is
`
`“supplemented with additional support.” Pet. 1; see also Exs. 1031, 1032
`
`(indicating differences between (i) the present Petition and the 176 IPR
`
`petition and (ii) the expert declarations in track changes). We determine this
`
`“additional support” does not change significantly the asserted ground of
`
`unpatentability or the evidence and arguments supporting that ground.
`
`Additionally, Petitioner asserts that granting joinder would not require any
`
`alterations to the existing scheduling order in the 176 IPR. Mot. 6.
`
`Petitioner also represents that the lead petitioner in the 176 IPR (Dell) does
`
`not oppose joinder of the present proceeding. Id. at 8.
`
`According to Petitioner, joinder will promote the efficient
`
`determination of validity of the challenged claims of the ’506 patent, as well
`
`6
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`
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`Case IPR2017-01688
`Patent 7,161,506 C2
`
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`as simplify briefing and discovery. Id. at 7. Petitioner asserts that Patent
`
`Owner would not be prejudiced because the schedule of the 176 IPR would
`
`be unchanged, and Patent Owner would not take on additional costs or
`
`burden because of the overlap between the present Petition and the 176 IPR
`
`petition. Id. at 8.
`
`Based on the facts and circumstances discussed above, we determine
`
`Petitioner has established good cause for joining this proceeding with the
`
`176 IPR.4 Specifically, we find that joinder of this proceeding with the 176
`
`IPR is unlikely to require any delay or modification to the scheduling order
`
`already in place for the 176 IPR. We determine that Patent Owner will not
`
`be prejudiced unduly by the joinder of these proceedings, and joining
`
`Petitioner’s identical challenges to those in the 176 IPR will lead to greater
`
`efficiency, while reducing the resources necessary from both Patent Owner
`
`and the Board. Consequently, granting the Motion for Joinder under these
`
`circumstances would help “secure the just, speedy, and inexpensive
`
`resolution” of these proceedings. See 37 C.F.R. § 42.1(b). For the above
`
`reasons, we conclude that the Motion for Joinder should be granted.
`
`
`
`
`4 In the 176 IPR, the petitioner proffered two different grounds: (1) claims
`104 and 105 as obvious over the combination of Franaszek and Hsu; and
`(2) claims 104 and 105 as obvious over the combination of Franaszek, Hsu,
`and Sebastian. IPR 176, Paper 1, 7. We exercised our discretion and
`instituted only on the second ground (i.e., the combination of Franaszek,
`Hsu, and Sebastian) and declined to institute on the first ground (i.e., the
`combination of Franaszek and Hsu). IPR 176, Paper 19, 18–19. Likewise,
`in the instant proceeding, we institute on the combination of Franaszek, Hsu,
`and Sebastian and decline to institute on the combination of Franaszek and
`Hsu.
`
`7
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`
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`Case IPR2017-01688
`Patent 7,161,506 C2
`
`
`II. ORDER
`
`For the reasons given, it is
`
`ORDERED that pursuant to 35 U.S.C. § 314, an inter partes review in
`
`IPR2017-01688 is hereby instituted for claims 104 and 105 of the ’506
`
`patent under 35 U.S.C. § 103(a) as unpatentable over Franaszek, Hsu, and
`
`Sebastian;
`
`FURTHER ORDERED that Petitioner’s Motion for Joinder is
`
`granted, and Petitioner is joined as a petitioner in IPR2017-00176;
`
`FURTHER ORDERED that IPR2017-01688 is hereby joined with
`
`IPR2017-00176;
`
`FURTHER ORDERED that the grounds of unpatentability on which
`
`trial was instituted in IPR2017-00176 is unchanged and remains the only
`
`grounds on which trial has been instituted;
`
`FURTHER ORDERED that the Scheduling Order entered in
`
`IPR2017-00176 (Paper 20), as modified by joint stipulations (Paper 29), is
`
`unchanged and shall govern the schedule of the joined proceeding;
`
`FURTHER ORDERED that Petitioner and the petitioners in IPR2017-
`
`00176 will file all papers jointly in the joined proceeding as consolidated
`
`filings, and will identify each such paper as “Consolidated,” except for
`
`papers that involve fewer than all of these parties;
`
`FURTHER ORDERED that IPR2017-01688 is terminated under
`
`37 C.F.R. § 42.72, and all further filings in the joined proceeding are to be
`
`made in IPR2017-00176;
`
`FURTHER ORDERED that a copy of this Decision will be entered
`
`into the record of IPR2017-00176 and IPR2017-00806; and
`
`8
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`
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`Case IPR2017-01688
`Patent 7,161,506 C2
`
`
`FURTHER ORDERED that the case caption in IPR2017-00176 shall
`
`be modified to reflect joinder with this proceeding in accordance with the
`
`attached example.
`
`
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`
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`FOR PETITIONERS:
`
`Jonathan Link
`jonathan.link@lw.com
`
`Lisa Nguyen
`lisa.nguyen@lw.com
`
`Bob Steinberg
`bob.steinberg@lw.com
`
`
`
`
`FOR PATENT OWNER:
`
`William Rothwell
`william@noroozipc.com
`
`Kayvan Noroozi
`kayvan@noroozipc.com
`
`
`
`
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`9
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`
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`Trials@uspto.gov
`571.272.7822
`
`
`
`Example Case Caption for Joined Proceeding
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`DELL INC.; EMC CORPORATION; HEWLETT-PACKARD
`ENTERPRISE CO.; HP ENTERPRISE SERVICES, LLC; TERADATA
`OPERATIONS, INC.; and VERITAS TECHNOLOGIES, LLC,
`Petitioners,
`
`v.
`
`PATENT OWNER REALTIME DATA LLC,
`Patent Owner.
`_______________
`
`Case IPR2017-001761
`Patent 7,161,506 B2
`_______________
`
`
`
`
`1 Case IPR2017-00806 has been consolidated with this proceeding. Case
`IPR2017-01688 has been joined with this proceeding.
`
`10
`
`
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