Trials@uspto.gov
`571-272-7822
`
`Paper 9
`Entered: June 7, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AKAMAI TECHNOLOGIES, INC.,
`Petitioner,
`
`v.
`
`LIMELIGHT NETWORKS, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00348
`Patent 8,750,155 B2
`____________
`
`Before JUSTIN T. ARBES, GREGG I. ANDERSON, and
`JENNIFER MEYER CHAGNON, Administrative Patent Judges.
`
`ARBES, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`

`

`IPR2017-00348
`Patent 8,750,155 B2
`
`
`Petitioner Akamai Technologies, Inc. filed a Petition (Paper 3, “Pet.”)
`requesting inter partes review of claims 1, 8, and 13 of U.S. Patent
`No. 8,750,155 B2 (Ex. 1001, “the ’155 patent”) pursuant to 35 U.S.C.
`§ 311(a). Patent Owner Limelight Networks, Inc. filed a Preliminary
`Response (Paper 8, “Prelim. Resp.”) pursuant to 35 U.S.C. § 313. Pursuant
`to 35 U.S.C. § 314(a), the Director may not authorize an inter partes review
`unless the information in the petition and preliminary response “shows that
`there is a reasonable likelihood that the petitioner would prevail with respect
`to at least 1 of the claims challenged in the petition.” For the reasons that
`follow, we have decided not to institute an inter partes review.
`
`
`I. BACKGROUND
`A. The ’155 Patent1
`The ’155 patent discloses “[t]echniques for modifying the
`performance of a transport layer protocol in response to a request for
`content.” Ex. 1001, col. 2, ll. 8–10. Standard protocols, such as
`Transmission Control Protocol (TCP), permit nodes to interoperate with
`each other in an Internet content delivery system. Id. at col. 1, ll. 16–44.
`“Standard protocols often employ the use of attributes, such as configurable
`parameters and selectable algorithms, to permit the protocol to operate
`effectively in various situations. For example, TCP controls message size,
`the rate at which messages are exchanged, and factors related to network
`congestion through the use of attributes . . . .” Id. at col. 1, ll. 45–54.
`
`1 In Case IPR2016-01011, Petitioner challenges certain claims of U.S. Patent
`No. 7,715,324 B2 (“the ’324 patent”). See Ex. 1007 (decision instituting an
`inter partes review on November 4, 2016). The ’155 and ’324 patents are
`continuations of U.S. Patent Application No. 12/572,981.
`
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`“A protocol can also be customized, which in general requires that each
`node have installed customized components to enable the custom protocol.”
`Id. at col. 1, ll. 59–61.
`Figure 2A of the ’155 patent is reproduced below.
`
`
`Figure 2A depicts an embodiment of the disclosed system where client 102
`“requests information, such as web page content, multimedia, or software
`downloads,” and server 206 provides information in response to the request.
`Id. at col. 4, ll. 45–51. In doing so, server 206 uses the standard TCP
`protocol, but “conditionally adapts the attributes of the TCP protocol for
`each TCP connection established by a client 102,” such that “the protocol
`attributes vary . . . from one connection or session to another.” Id. at col. 5,
`ll. 4–13, 58–67, col. 13, ll. 21–35. Server 206 “includes a modified TCP
`protocol stack which adjusts timing, pacing, and buffer allocation associated
`with a connection in response to requests from an application-layer data
`source.” Id. at col. 2, ll. 20–24, col. 16, l. 48–col. 17, l. 34, Fig. 7 (modified
`TCP protocol stack 700).
`
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`
`Each content request includes both “a source address of the end user
`computer and an identifier corresponding to the requested content” (e.g., an
`alphanumeric URL string), which server 206 can use to “obtain additional
`information from data store 220 with which to modify the transport layer
`parameters of the TCP connection.” Id. at col. 17, ll. 35–45. “[S]erver 206
`bases the conditional adaptation of the attributes of the TCP protocol on the
`alphanumeric URL string provided by the client 102 in its information
`request.” Id. at col. 6, ll. 33–36. Specifically, “protocol attribute selector
`212 of the server 206 compares the alphanumeric URL string . . . to a table
`220 containing partial or whole URLs and identifies the most specific
`match” that it can find. Id. at col. 7, ll. 8–13, col. 13, ll. 61–65. The
`’155 patent provides the following exemplary table in column 14:
`
`
`The above table “shows mappings from whole and/or partial URLs into TCP
`attribute sets comprising specific protocol[] attributes (identified as ‘attr1,’
`‘attr2,’ ‘attr3,’ etc.) to be used and the appropriate value or setting for that
`use of that attribute.” Id. at col. 13, l. 65–col. 14, l. 3.
`In addition to the alphanumeric URL string, server 206 can base the
`conditional adaptation of TCP protocol attributes on other pieces of
`information, such as, for example, “recent network performance
`
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`measurements,” “recent measures of utilization of a network,” or “recent
`measurements of performance or utilization of a server, group of servers, or
`server component(s) such as memory, processor, disk, bus, intersystem
`interface, and/or network interface.” Id. at col. 6, ll. 57–67, col. 7, ll. 29–65,
`col. 20, ll. 17–29.
`
`
`B. Illustrative Claim
`Claim 1 of the ’155 patent recites:
`1. A method for managing delivery of content in a system
`comprising a server and an end user computer, comprising:
`establishing a first connection at
`the server for
`communicating with the end user computer;
`receiving a request for content from the end user
`computer over the first connection, the request include a
`universal resource locator (URL);
`determining one or more parameters relating to the
`performance of the first connection using information from the
`request, wherein the determined one or more parameters relate
`to utilization of available processing or memory capabilities of
`part or all of a system supporting the first connection;
`determining one or more first values of attributes based
`on the URL and the one or more parameters;
`modifying second values of attributes for the first
`connection at a transport layer to result in the determined one or
`more first values, the second values of the attributes for the first
`connection thereafter influencing utilization of the available
`processing or memory capabilities of the part or all of the
`system supporting the first connection;
`changing, on a connection-specific basis, a connection
`protocol stack operator based upon the modified values of the
`attributes; and
`
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`
`sending the requested content from the server to the end
`user computer such that the transport layer manages delivery of
`the content in accordance with the modified second values of
`the attributes.
`
`
`C. The Prior Art
`Petitioner relies on the following prior art:
`U.S. Patent No. 6,192,415 B1, issued Feb. 20, 2001
`(Ex. 1005, “Haverstock”);
`U.S. Patent Application Publication No. 2007/0156845
`A1, published July 5, 2007 (Ex. 1003, “Devanneaux”); and
`U.S. Patent Application Publication No. 2007/0226375
`A1, published Sept. 27, 2007 (Ex. 1004, “Chu”).
`
`D. The Asserted Ground
`Petitioner challenges claims 1, 8, and 13 as unpatentable over
`Devanneaux, Chu, and Haverstock under 35 U.S.C. § 103(a).2
`
`
`II. DISCUSSION
`A. Claim Interpretation
`The Board interprets claims in an unexpired patent using the “broadest
`reasonable construction in light of the specification of the patent in which
`[they] appear[].” 37 C.F.R. § 42.100(b); see also Cuozzo Speed Techs., LLC
`v. Lee, 136 S. Ct. 2131, 2144–46 (2016) (upholding the use of the broadest
`
`
`2 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
`(2011) (“AIA”), amended 35 U.S.C. § 103. Because the challenged claims
`of the ’155 patent have an effective filing date before the effective date of
`the applicable AIA amendment, we refer to the pre-AIA version of
`35 U.S.C. § 103.
`
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`reasonable interpretation standard). Under this standard, we interpret claim
`terms using “the broadest reasonable meaning of the words in their ordinary
`usage as they would be understood by one of ordinary skill in the art, taking
`into account whatever enlightenment by way of definitions or otherwise that
`may be afforded by the written description contained in the applicant’s
`specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
`We presume that claim terms have their ordinary and customary meaning.
`See Trivascular, Inc. v. Samuels, 812 F.3d 1056, 1062 (Fed. Cir. 2016)
`(“Under a broadest reasonable interpretation, words of the claim must be
`given their plain meaning, unless such meaning is inconsistent with the
`specification and prosecution history.”); In re Translogic Tech., Inc., 504
`F.3d 1249, 1257 (Fed. Cir. 2007) (“The ordinary and customary meaning is
`the meaning that the term would have to a person of ordinary skill in the art
`in question.” (internal quotation marks omitted)). A patentee, however, may
`rebut this presumption by acting as his own lexicographer, providing a
`definition of the term in the specification with “reasonable clarity,
`deliberateness, and precision.” In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir.
`1994). The parties provide proposed interpretations for various claim
`limitations, and cite a district court decision construing certain limitations.
`See Pet. 32–35; Prelim. Resp. 4–6; Ex. 1010. For purposes of this Decision,
`however, we conclude that only one limitation requires interpretation.
`Claim 1 (emphasis added) recites “determining one or more first
`values of attributes based on the URL and the one or more parameters” and
`modifying second values of attributes for the first
`connection at a transport layer to result in the determined one or
`more first values, the second values of the attributes for the first
`connection thereafter influencing utilization of the available
`
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`
`processing or memory capabilities of the part or all of the
`system supporting the first connection.
`With respect to the highlighted portion of the claim (the “influencing
`limitation”), Petitioner argues the following:
`This limitation is unclear and indefinite. Element 1e initially
`states that “second values” (i.e., current values) of the attributes
`are modified “to result in” “first values” (i.e., new values) of the
`attributes. Therefore, these new first values should “thereafter
`influenc[e]” the utilization of the available processing or
`memory capabilities. However, Element 1e actually states that
`the “second values” (i.e., current values prior to modification)
`“thereafter
`influenc[e]”
`the utilization of
`the available
`processing or memory capabilities. In the District Court
`Lawsuit, [Patent Owner] asserts that the modified, new values
`“thereafter
`influenc[e]”
`the utilization of
`the available
`processing or memory capabilities. Ex. 1002-Decl. ¶ 125.
`Solely for the purpose of this Petition, [Petitioner] uses [Patent
`Owner’s] interpretation for this limitation.
`Pet. 50 n.3. Thus, Petitioner’s position is that “the second values of the
`attributes” in the influencing limitation refers not to the “second values”
`prior to modification (i.e., the original values), but rather the “second
`values” as so modified (i.e., the newly determined “first values”).3 See id.
`We are not persuaded that the claim should be interpreted in that
`manner, for two reasons. First, Petitioner does not provide any explanation
`or supporting evidence to show that its proposed interpretation is correct.
`A petition seeking inter partes review must identify “[h]ow the challenged
`claim is to be construed,” “[h]ow the construed claim is unpatentable under
`the statutory grounds identified,” and “the supporting evidence relied upon
`to support the challenge and the relevance of the evidence to the challenge
`
`
`3 Patent Owner does not propose an interpretation for the influencing
`limitation in its Preliminary Response. See Prelim. Resp. 4–6.
`
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`raised, including identifying specific portions of the evidence that support
`the challenge.” 37 C.F.R. §§ 42.104(b)(3)–(5); see also 37 C.F.R.
`§ 42.22(a)(2) (a petition must include “[a] full statement of the reasons for
`the relief requested, including a detailed explanation of the significance of
`the evidence”). Petitioner, for example, does not point to anything in the
`Specification or prosecution history of the ’155 patent that would support its
`proposed interpretation. To the contrary, Petitioner acknowledges what
`claim 1 “actually states”—that “the ‘second values’ (i.e., current values
`prior to modification)” are what thereafter influence the utilization of
`available processing or memory capabilities—but proposes that we interpret
`the claim contrary to this plain meaning because Patent Owner allegedly
`does so in the district court case. See Pet. 50 n.3. Petitioner, however, does
`not cite any documentation from the district court case or explain in any
`detail why it would be proper to interpret the claim in that manner.
`Petitioner’s only cited support is the declaration of Samrat Bhattacharjee,
`Ph.D., but Dr. Bhattacharjee merely repeats what is stated in the Petition,
`without any additional analysis. See id.; Ex. 1002 ¶ 125 n.3.4 Under the
`circumstances, we are not persuaded that Petitioner has provided any basis
`on which to interpret the influencing limitation contrary to what it “actually
`states.” See Pet. 50 n.3.
`
`
`4 It appears that Petitioner filed a first copy of Dr. Bhattacherjee’s
`declaration with its Petition on November 30, 2016, and a second identical
`copy including Dr. Bhattacherjee’s curriculum vitae on December 2, 2016,
`both labeled as Exhibit 1002. See Paper 4. Given the clerical nature of the
`change, we authorize the filing and will expunge the original version for
`clarity of the record. See 37 C.F.R. §§ 42.5(b), 42.7(a). In the future, the
`parties should request a conference call to seek authorization for such
`filings.
`
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`
`Second, Petitioner’s proposed interpretation appears to be inconsistent
`with the language of the claim. As Petitioner acknowledges, claim 1 recites
`that “second values of attributes” are modified “to result in the determined
`one or more first values.” See id. Thus, the “second values” are original
`values, and the “first values” are new, determined values. Claim 1 further
`recites “the second values of the attributes . . . thereafter influencing
`utilization of the available processing or memory capabilities of the part or
`all of the system supporting the first connection.” Thus, according to the
`express language of claim 1, it is “the second values of the attributes” (i.e.,
`the original values, not the new, determined “first values”) that thereafter
`influence the utilization of available processing or memory capabilities.
`Other language of claim 1 supports this reading as well. The claim recites
`changing a connection protocol stack operator based on “the modified values
`of the attributes” and managing delivery of the requested content in
`accordance with “the modified second values of the attributes.”5 The fact
`that the claim recites “the modified values of the attributes” and “the
`modified second values of the attributes,” but refers only to “the second
`values of the attributes” in the influencing limitation, indicates that the
`influencing limitation pertains to the original values rather than the new,
`determined values.
`Finally, we note that independent claim 13 includes the same
`influencing limitation and similar surrounding language. Claim 13
`(emphasis added) recites a data source “configured to monitor a first
`
`
`5 Petitioner, “for the purpose of this Petition, considers the ‘modified second
`values’ to cover new attribute values.” Pet. 56 n.4.
`
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`connection for a request to . . . determine one or more first values of
`attributes based on a URL and the one or more parameters” and
`direct the protocol handler to modify second values of
`attributes for the first connection to result in the determined one
`or more first values, the second values of the attributes for the
`first connection
`thereafter
`influencing utilization of
`the
`available processing or memory capabilities of the part or all
`of the system supporting the first connection.
`Petitioner does not provide any additional explanation with respect to claim
`13, and our above analysis applies equally to the language of claim 13. See
`id. at 69.
`On this record, and given that Petitioner has not provided any basis on
`which to depart from the plain language of the influencing limitation, we
`interpret claims 1 and 13 to require that “the second values of the attributes,”
`not the new, determined “first values” as Petitioner contends, thereafter
`influence utilization of the available processing or memory capabilities.
`
`B. Obviousness Ground Based on Devanneaux, Chu, and Haverstock
`Petitioner contends that claims 1, 8, and 13 are unpatentable over
`Devanneaux, Chu, and Haverstock under 35 U.S.C. § 103(a), citing the
`testimony of Dr. Bhattacharjee as support. Pet. 35–69 (citing Ex. 1002).
`We are not persuaded that Petitioner has established a reasonable likelihood
`of prevailing on its asserted ground for the reasons explained below.
`
`
`1. Devanneaux
`Devanneaux describes a content delivery network (CDN) edge server
`that is “configured to provide one or more extended content delivery features
`on a domain-specific, customer-specific basis, preferably using
`
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`configuration files that are distributed to the edge servers using a
`configuration system.” Ex. 1003 ¶ 11. Figure 1 of Devanneaux is
`reproduced below.
`
`
`
`Figure 1 depicts a CDN infrastructure including CDN servers 102a–n,
`typically “located near the edge of the Internet, i.e., at or adjacent end user
`access networks,” and origin server 106, which “offload[s] delivery of
`content” to the edge servers. Id. ¶ 8. “End users that desire such content
`may be directed to the distributed computer system to obtain that content
`more reliably and efficiently.” Id.
`
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`Figure 3 of Devanneaux is reproduced below.
`
`
`
`Figure 3 depicts a portion of the CDN where the customer, operating
`customer origin server 316, “has off-loaded all or some of its content
`delivery requirements to the CDN service provider.” Id. ¶ 19. “An
`Internet-accessible client 300 (e.g., an end user client machine having a
`browser and media player) has been directed by CDN authoritative DNS
`mechanism 302 to a nearby edge server 304.” Id. “Content handling rules
`are configured into each edge server, preferably via a metadata configuration
`system 306,” and “the configuration system provides edge server content
`control metadata via links 318, which themselves may include other
`infrastructure (servers, and the like).” Id. ¶ 20.
`In the disclosed system, “a given CDN edge server is configured to
`provide one or more extended content delivery features” on a
`customer-specific basis using an Extensible Markup Language (XML)-based
`“configuration file” with “content handling rules and directives that
`facilitate” the features. Id. ¶ 21. “[W]hen an edge server management
`
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`process receives a request for content, it searches an index file for a match
`on a customer hostname associated with the request” and, “[i]f there is a
`match, the edge server process loads metadata from the configuration file to
`determine how it will handle the request.” Id. The metadata may control,
`for example, the location from which to retrieve the content (e.g., a local
`cache or the parent node), implementing a “content prefetch function,” or
`“how the edge server should deliver the content to the requesting end user
`browser once it has been obtained.” Id.
`“[A] set of content handling directives [is] set forth in the XML
`configuration file for a given customer domain and used to control the edge
`server to provide these advanced functions.” Id. In addition to content
`prefetching, the functions include “client-server (e.g., edge server-to-edge
`server) TCP connection optimizations,” which “involve[] adjusting one or
`more TCP settings (e.g., congestion window size, retransmit timeout, packet
`reordering, and the like). Id. ¶¶ 23, 83. Devanneaux discloses that “the
`controls for changing the TCP settings are in a separator” (in the metadata)
`that has “two listable nodes,” each of which contains
`a parameter (the name of the parameter to be set), a direction
`(to define which connection this setting will control), and a
`value (the value to set for the parameter). The parameter may
`be one of: cwnd_init (initial congestion window), cwnd_ssinc
`(slow start increase), cwnd_cainc (congestion avoidance rate),
`cwr_dec (congestion reduction rate), and many others.
`Id. ¶¶ 86–87. Devanneaux further discloses that the metadata includes a
`“baseline tag that is used to temporarily stop prefetching if a given edge
`server CPU utilization percent is above [a] threshold.” Id. ¶ 79.
`
`
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`
`2. Chu
`Chu describes a “plug-in architecture for a network stack in an
`operating system” where “[t]he network stack includes a set of functions
`configured to modify a set of parameters that are likely to change based on
`the network environment” and the plug-in architecture “allows the set of
`functions to be dynamically changed in order to change the TCP behavior of
`the network stack to suit the network environment.” Ex. 1004 ¶ 8, Fig. 1.
`The “set of functions is implemented as a dynamically loadable kernel
`module.” Id. ¶ 24. The disclosed architecture “allow[s] different TCP
`behaviors to be plugged-in on a per-connection basis,” where a connection
`technique may “vary dynamically, based on,” for example, “application
`type” or “characteristics of the network connection, including latency,
`bandwidth, loss-rate, and traffic characteristics.” Id. ¶¶ 54–66.
`
`
`3. Haverstock
`Haverstock is directed to a “system for enabling access to non-HTML
`objects from a Web browser.” Ex. 1005, Abstract. Haverstock describes the
`general process of accessing a web page using a web browser, in which “a
`user enters a request by specifying a uniform resource locator (URL) via the
`browser and hitting ‘Submit’ (or another function key) and the URL is sent
`to the Web server using HTTP. The Web server responds by locating the
`requested HTML document and returning it to the browser,” where it is
`translated and displayed. Id. at col. 1, ll. 45–52.
`
`
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`4. Analysis
`Petitioner relies on Devanneaux as allegedly teaching the majority of
`the limitations of independent claims 1 and 13, and relies on Chu and
`Haverstock for certain limitations. Pet. 35–57, 61–69. With respect to the
`“modifying” step of claim 1, Petitioner points to Devanneaux’s teaching of a
`separator with two listable nodes, each of which contains, inter alia, “a value
`(the value to set for the parameter).” Id. at 48–49 (citing Ex. 1003 ¶¶ 86–87)
`(emphases omitted); see also id. at 69 (incorporating Petitioner’s analysis of
`claim 1 for claim 13). For example, according to Petitioner, the “cwnd_init
`(initial congestion window)” parameter in Devanneaux is an “attribute” that
`would have a “value,” and Devanneaux teaches modifying such values to
`result in new values (e.g., adjusting the congestion window size). Id. at
`48–50 (citing Ex. 1003 ¶¶ 23, 124). With respect to the influencing
`limitation in particular, Petitioner argues that
`[c]hanging
`the values of
`the attributes
`in
`identified
`Devanneaux (e.g., cwnd_init (initial congestion window),
`cwnd_ssinc (slow start increase), cwnd_cainc (congestion
`avoidance rate), cwr_dec (congestion reduction rate)) influences
`the utilization of available memory capabilities in various parts
`of the system supporting the first connection. For example, the
`amount of memory required to buffer packets at the beginning
`of the connection is related to the value of the initial congestion
`window (cwnd_init). Similarly, a [person of ordinary skill in
`the art] would understand that the memory utilization of parts of
`the system supporting the first connection is affected by
`changing the values of cwnd_cainc (congestion avoidance rate)
`and cwr_dec (congestion reduction rate) attributes.
`Id. at 50–51 (citations omitted) (emphases added).
`Thus, Petitioner’s analysis is premised on its proposed interpretation
`of the influencing limitation as requiring the changed values of the
`
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`attributes, not the original values, to be what thereafter influence utilization
`of the available processing and memory capabilities of the system. See id. at
`50–51 & n.3. We are not persuaded that Petitioner’s proposed interpretation
`is correct, for the reasons stated above. See supra Section II.A. Rather, the
`plain language of the claims requires “the second values of the attributes”
`(i.e., the original values) to thereafter influence utilization of the available
`processing or memory capabilities. See id. Applying that reading of the
`claims, Petitioner has not shown that the original values of Devanneaux’s
`attributes (e.g., the original value of the “cwnd_init (initial congestion
`window)” parameter) thereafter influence utilization of the available
`processing or memory capabilities; Petitioner only argues that the changed
`values do so. See Pet. 48–51. Accordingly, Petitioner has not shown a
`reasonable likelihood of prevailing on its assertion that independent claims 1
`and 13, as well as claim 8, which depends from claim 1, are unpatentable
`over Devanneaux, Chu, and Haverstock.
`
`
`C. Conclusion
`We conclude that Petitioner has not demonstrated a reasonable
`likelihood of prevailing with respect to at least one claim of the ’155 patent
`challenged in the Petition. Therefore, we do not institute an inter partes
`review on the asserted ground as to any of the challenged claims.
`
`
`III. ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that the Petition is denied as to all challenged claims of
`the ’155 patent; and
`
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`FURTHER ORDERED that the version of Exhibit 1002 filed on
`November 30, 2016, is expunged from the record of this proceeding.
`
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`PETITIONER:
`
`Grant K. Rowan
`Peter Dichiara
`Daniel V. Williams
`WILMER, CUTLER, PICKERING, HALE AND DORR, LLP
`grant.rowan@wilmerhale.com
`peter.dichiara@wilmerhale.com
`daniel.williams@wilmerhale.com
`
`David H. Judson
`mail@davidjudson.com
`
`PATENT OWNER:
`
`Barry J. Schindler
`Heath Briggs
`Lennie A. Bersh
`Joshua C. Malino
`Vimal Kapadia
`GREENBERG TRAURIG, LLP
`schindlerb@gtlaw.com
`briggsh@gtlaw.com
`bershl@gtlaw.com
`malinoj@gtlaw.com
`kapadiav@gtlaw.com
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