Trials@uspto.gov Paper No. 10
`571-272-7822 Entered: August 30, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`RIVERBED TECHNOLOGY, INC.,
`Petitioner,
`v.
`REALTIME DATA LLC,
`Patent Owner.
`_______________
`
`
`
`Case IPR2018-00656 B2
`Patent US 8,717,204
`_______________
`
`Before JAMESON LEE, THOMAS L. GIANNETTI, and
`GARTH D. BAER, Administrative Patent Judges.
`
`BAER, Administrative Patent Judge.
`
`
`
`DECISION
`Instituting Inter Partes Review and Granting Motion for Joinder
`35 U.S.C § 314; 35 U.S.C § 315(c); 37 C.F.R. § 42.122(b)
`
`
`
`
`
`
`
`571-272-7822 Entered: August 30, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`RIVERBED TECHNOLOGY, INC.,
`Petitioner,
`v.
`REALTIME DATA LLC,
`Patent Owner.
`_______________
`
`
`
`Case IPR2018-00656 B2
`Patent US 8,717,204
`_______________
`
`Before JAMESON LEE, THOMAS L. GIANNETTI, and
`GARTH D. BAER, Administrative Patent Judges.
`
`BAER, Administrative Patent Judge.
`
`
`
`DECISION
`Instituting Inter Partes Review and Granting Motion for Joinder
`35 U.S.C § 314; 35 U.S.C § 315(c); 37 C.F.R. § 42.122(b)
`
`
`
`
`
`
`
`
`IPR2018-00656
`Patent 8,717,204
`
`
`I.
`INTRODUCTION
`Riverbed Technology, Inc. (“Riverbed”) filed a Petition requesting an
`inter partes review of claims 1–30 of U.S. Patent No. 8,717,204 B2 (“the
`’204 patent”). Paper 2 (“Pet.”). Patent Owner Real Time Data LLC
`(“Patent Owner”) did not file a Preliminary Response to the Petition.
`Along with its Petition, Riverbed filed a Motion for Joinder to join
`this proceeding with IPR2017-01710. Paper 3 (“Mot.”). Riverbed filed the
`Petition and Motion for Joinder on February 15, 2018, and February 16,
`2018, respectively, both within one month after we instituted trial in
`IPR2017-001710. Patent Owner did not file a response to Riverbed’s
`Motion for Joinder.
`As explained further below, we institute trial on the same grounds as
`instituted in IPR2017-01710 and grant Riverbed’s Motion for Joinder.
`
`II.
`DISCUSSION
`In IPR2017-01710, Commvault Systems, Inc. (“Commvault”)
`challenged claims 1–30 of the ’204 patent on the following grounds:
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`2
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`IPR2018-00656
`Patent 8,717,204
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`
`
`Reference(s)
`XMill1
`XMill, RFC768,2 and
`RFC11803
`
`Ferris4 and XMill
`
`Ferris and Comer5
`The 2003 CIP
`
`
`Basis
`35 U.S.C. § 103(a)
`35 U.S.C. § 103(a)
`
`35 U.S.C. § 103(a)
`
`35 U.S.C. § 103(a)
`35 U.S.C. § 102
`
`
`Claim(s)
`12–18, 20, and 21
`
`14, 15, and 19
`
`1–8, 10, 11, 16, 17,
`22–28, and 30
`9 and 29
`1–30
`
`Subsequent to the Petition in IPR2017-01710, Patent Owner filed a
`statutory disclaimer of claims 1–11, 15–17, and 22–30 of the ’204 patent.
`IPR2017-01710, Paper 11, 2, 8. After considering the Petition and Patent
`Owner’s Preliminary Response, we eventually instituted trial in IPR2017-
`01710 on all claims remaining in the ’204 patent on the following grounds:
`obviousness of claims 12–14, 18, 20, and 21 over XMill; obviousness of
`claims 14 and 19 over XMill, RFC768, and RFC1180; and anticipation of
`
`1 Hartmut Liefke and Dan Suciu, XMill: an Efficient Compressor for XML
`Data, 2000 ACM SIGMOD International Conference on Management of
`Data (Proceedings), 153–64 (2000). Ex. 1011 (“XMill”).
`2 J. Postel, User Datagram Protocol RFC 768: (Aug. 28, 1980). Ex. 1014
`(“RFC768”).
`3 T. Socolofsky and C. Kale, A TCP/IP Tutorial RFC1180 (Jan. 1991). Ex.
`1015 (“RFC1180”).
`4 International Publication No. WO 02/13058 A2; Feb. 14, 2002. Ex. 1016
`(“Ferris”).
`5 Douglas E. Comer and David L. Stevens, Internetworking with TCP/IP
`Vol III: Client Server Programming and Applications, Prentice Hall (2001).
`Ex. 1017 (“Comer”).
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`3
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`IPR2018-00656
`Patent 8,717,204
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`claims 12–14 and 18–20 over the 2003 CIP. See id. at 22 (instituting on
`obviousness grounds only); Paper 16, 2–3 (modifying our Institution
`Decision to include anticipation grounds).
`As asserted in Petitioner’s Motion for Joinder, “Riverbed’s Petition is
`identical to the petition in the Commvault IPR with the exception of the
`updated petitioner name and mandatory notices.” See Mot. 1; compare
`IPR2018-00656, Paper 2, with IPR2017-01710, Paper 1. Riverbed also
`relies on the same expert testimony as Commvault. Mot. 7. Riverbed filed
`no additional expert testimony.
`For the same reasons stated in our Decision on Institution in IPR2017-
`01710, we institute trial in this proceeding on the same grounds.
`Having determined that institution is appropriate, we now turn to
`Riverbed’s Motion for Joinder. Section 315(c) provides, in relevant part,
`that “[i]f 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.” When determining whether to
`grant a motion for joinder we consider factors such as timing and impact of
`joinder on the trial schedule, cost, discovery, and potential simplification of
`briefing. Kyocera Corp. v. SoftView, LLC, Case IPR2013-00004, slip op. at
`4 (PTAB Apr. 24, 2013) (Paper 15). Under the circumstances of this case,
`we determine that joinder is appropriate.
`According to Riverbed, “the Present Petition challenges the same
`claims under the same grounds, while relying on the same arguments, expert
`declaration, and evidence.” Mot. 7. Further, “[j]oinder would have little, if
`any, impact on the Commvault IPR because no new grounds would be
`added, the schedule would not be affected, no additional briefing or
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`4
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`IPR2018-00656
`Patent 8,717,204
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`discovery would be required.” Id. at 6. Riverbed explains that it “moves to
`join the Commvault IPR to ensure that it reaches a final decision in the event
`Commvault settles with Patent Owner and is dismissed from the review.”
`Id.
`Riverbed further asserts as follows:
`With respect to consolidated filings, any papers jointly submitted
`by petitioners will not exceed the normal word count or page
`limits for a single party set forth in the rules. Petitioner will not
`file, or request to file, any separate briefs beyond the
`consolidated filings. Petitioner will not request additional cross-
`examination or re-direct time. Additionally, with respect to any
`oral hearing, Commvault will be responsible for the presentation
`before the Board. Petitioner will not request any additional time
`to independently argue before the Board or attempt to submit its
`own demonstratives.
`Id. at 10.
`Patent Owner has not opposed Riverbed’s Motion.
`Under the circumstances here, we agree with Petitioner that joinder is
`appropriate and will not unduly impact the ongoing trial in Case IPR2017-
`01710, but only if certain limitations are imposed on Petitioner’s role and
`involvement in the joined proceeding beyond those identified by Riverbed in
`its Motion. We limit Petitioner Riverbed’s participation in the joined
`proceeding, such that (1) Commvault alone is responsible for all petitioner
`filings in the joined proceeding until such time that it is no longer an entity
`in the joined proceeding, and (2) Riverbed is bound by all filings by
`Commvault in the joined proceeding, except for filings regarding
`termination and settlement. Riverbed must obtain prior Board authorization
`to file any paper or to take any action on its own in the joined proceeding, so
`long as Commvault remains as a non-terminated petitioner in the joined
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`5
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`IPR2018-00656
`Patent 8,717,204
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`proceeding. These are the conditions we impose on Riverbed for the joined
`proceeding. This arrangement promotes the just and efficient administration
`of the ongoing trial in Case IPR2017-01710 and protects the interests of
`Commvault as original petitioner in Case IPR2017-01710, and of Patent
`Owner.
`For the foregoing reasons, and with the limitations discussed above,
`Petitioner’s Motion for Joinder is granted.
`
`III.
`
`ORDER
`
`Accordingly, it is
`ORDERED that the Petition is granted and an inter partes review of
`the ’204 patent is instituted on the following grounds:
`1) Obviousness of claims 12–14, 18, 20, and 21 over XMill;
`2) Obviousness of claims 14 and 19 over XMill, RFC768, and
`RFC1180; and
`3) Anticipation of claims 12–14 and 18–20 over the 2003 CIP.
`FURTHER ORDERED that Riverbed’s Motion for Joinder with
`IPR2017-01710 is granted;
`
`FURTHER ORDERED that IPR2018-00656 is terminated and joined
`to IPR2017-01710, pursuant to 37 C.F.R. §§ 42.72, 42.122, based on the
`conditions discussed above;
`
`FURTHER ORDERED that the Scheduling Order in place for
`IPR2017-01710 (Paper 15) shall govern the joined proceedings;
`
`FURTHER ORDERED that all future filings in the joined proceeding
`shall be made only in IPR2017-01710;
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`6
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`IPR2018-00656
`Patent 8,717,204
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`FURTHER ORDERED that the case caption in IPR2017-01710 for all
`further submissions shall be changed to add Riverbed as a named Petitioner
`after Commvault, and to indicate by footnote the joinder of IPR2018-00656
`to that proceeding, as indicated in the attached sample case caption; and
`
`FURTHER ORDERED that a copy of this Decision shall be entered
`into the record of IPR2017-01710.
`
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`IPR2018-00656
`Patent 8,717,204
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`
`
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`FOR PETITIONER Riverbed:
`Kyle Howard
`Greg Webb
`David M. O'Dell
`Brian Graham
`HAYNES AND BOONE, LLP
` kyle.howard.ipr@haynesboone.com
`greg.webb.ipr@haynesboone.com
`david.odell.ipr@haynesboone.com
`brian.graham.ipr@haynesboone.com
`
`
`FOR PATENT Real Time Data LLC:
`William P. Rothwell
`NOROOZI PC
`william@noroozipc.com
`
`FOR IPR2017-01710 PETITIONER Commvault:
`John R. King
`Joseph S. Cianfrani
`Michelle E. Armond
`Bridget A. Smith
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`BoxCOMMVL343P@knobbe.com
`
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`8
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`IPR2018-00656
`Patent 8,717,204
`
`
`Sample Case Caption
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`COMMVAULT SYSTEMS, INC., AND
`RIVERBED TECHNOLOGY, INC.,
`Petitioners,
`
`v.
`
`REALTIME DATA LLC,
`Patent Owner.
`_______________
`
`Case IPR2017-017106
`Patent US 8,717,204 B2
`_______________
`
`
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`6 IPR2018-00656 has been joined to this proceeding.
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`9
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