throbber
Trials@uspto.gov
`571-272-7822
`
`Paper 23
`Date: January 12, 2021
`
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`JUNIPER NETWORKS, INC. and PALO ALTO NETWORKS, INC.,
`Petitioner,
`v.
`PACKET INTELLIGENCE LLC,
`Patent Owner.
`
`IPR2020-00335
`IPR2020-00485
`Patent 6,651,099 B1
`
`
`Before STACEY G. WHITE, CHARLES J. BOUDREAU, and
`JOHN D. HAMANN, Administrative Patent Judges.
`
`HAMANN, Administrative Patent Judge.
`
`DECISION
`Denying Petitioner’s Requests1 for Rehearing
`35 C.F.R. § 42.71(d)
`
`
`
`
`1 We exercise our discretion to issue a single Decision to be entered in each
`case using a joint caption in light of Petitioner’s Requests for Rehearing in
`both cases presenting the same substantive arguments. For efficiency, we
`cite to the papers filed in IPR2020-00335 unless otherwise indicated. The
`parties are not permitted to use this caption.
`
`
`
`

`

`IPR2020-00335
`IPR2020-00485
`Patent 6,651,099 B1
`
`
`
`
`INTRODUCTION
`In IPR2020-00335, Juniper Networks, Inc. and Palo Alto Networks,
`Inc. (collectively “Petitioner”) filed a Request for Rehearing (Paper 21,
`“Req. Reh’g”) of our Decision denying institution of inter partes review
`(Paper 19, “Dec. on Inst.”) of claims 1 and 2 of U.S. Patent
`No. 6,651,099 B2 (“the ’099 patent”). In IPR2020-00485, Petitioner filed a
`Request for Rehearing (Paper 21) of our Decision denying institution of
`inter partes review (Paper 19) of claims 4 and 5 of the ’099 patent. For the
`following reasons, Petitioner’s Requests for Rehearing are denied.
` STANDARD OF REVIEW
`A party requesting rehearing bears the burden of showing that a
`decision should be modified. 37 C.F.R. § 42.71(d). The party must identify
`all matters it believes the Board 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 petition, we review
`the decision for an abuse of discretion. 37 C.F.R. § 42.71(c). An abuse of
`discretion occurs when a “decision was based on an erroneous conclusion of
`law or clearly erroneous factual findings, or . . . a clear error of judgment.”
`PPG Indus. Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565, 1567
`(Fed. Cir. 1988) (citations omitted).
` ANALYSIS
`Petitioner requests that we rehear our Decisions on Institution and
`institute inter partes review as to the ’099 patent. Req. Reh’g. 15. In
`particular, Petitioner argues that we “improperly interpreted the plain and
`ordinary meaning of ‘state transition patterns,’ and overlooked or
`
`2
`
`

`

`IPR2020-00335
`IPR2020-00485
`Patent 6,651,099 B1
`
`misapprehended Petitioner’s testimonial evidence showing that Riddle and
`Yu teach that limitation.” Id.
` State Transition Patterns
`Petitioner argues that we improperly interpreted the plain and ordinary
`meaning of state transition patterns. Id. at 3–8. These arguments relate to
`claim 1’s limitation of “a set of predefined state transition patterns . . . such
`that traversing a particular transition pattern as a result of a particular
`conversational flow-sequence of packets indicates that the particular
`conversational flow-sequence is associated with the operation of a particular
`application program.” Ex. 1001, 35:31–39; Req. Reh’g 3–8. In particular,
`Petitioner argues that “the Board’s [D]ecision[s] interpret[] the claim term
`‘state transition pattern(s)’ to require ‘state transitions across multiple
`packets,’ . . . [which] runs contrary to the claim language.” Req. Reh’g 1
`(citing Dec. on Inst. 18–20). According to Petitioner, “[t]he claim is
`agnostic on whether traversal is triggered by a single packet, or by more than
`one packet, in a flow-sequence of packets.” Id.
`We disagree. Claim 1 explicitly recites that “traversing a particular
`transition pattern as a result of a particular conversational flow-sequence of
`packets indicates” the associated application program. Ex. 1001, 35:31–39
`(emphases added). In other words, the claim requires “classifying a flow
`based on . . . a state transition pattern of a sequence of packets (i.e., across
`multiple packets) in the flow.” Dec. on Inst. 19. In the context of the
`limitation, the “particular transition pattern” is one of the “set of predefined
`state transition patterns.” Ex. 1001, 35:31–39. Hence, state transition
`patterns include state transition patterns that involve multiple packets,
`contrary to Petitioner’s arguments. Put differently, and as we stated in our
`
`3
`
`

`

`IPR2020-00335
`IPR2020-00485
`Patent 6,651,099 B1
`
`Decisions on Institution, “the plain and ordinary meaning of ‘state transition
`patterns,’ in the context of a sequence of packets, comprises state transitions
`across packets in a flow.” Dec. on Inst. 18 (citing Ex. 1001, 35:31–39)
`(emphasis added). Petitioner’s Requests for Rehearing fail to address
`directly that the limitation recites “of packets” (i.e., packet in the plural form
`or multiple packets) for the particular conversational flow-sequence that
`results in the traversal of the particular transition pattern. See generally Req.
`Reh’g.
`
`Moreover, this limitation’s plain and ordinary “meaning is consistent
`with the Specification’s disclosure that a current packet is ‘analyzed in the
`context of the sequence of previously encountered packets (the state).’”
`Dec. on Inst. 18 (quoting Ex. 1001, 11:16–20). The Specification is replete
`with support for this plain and ordinary meaning requiring patterns involving
`multiple packets. For example, the Specification discloses:
`In a complex analysis, state transitions are traversed as more and
`more packets are examined. Future packets that are part of the
`same conversational flow have their state analysis continued
`from a previously achieved state. When enough packets related
`to an application of interest have been processed, a final
`recognition state is ultimately reached, i.e., a set of states has
`been traversed by state analysis to completely characterize the
`conversational flow.
`
`Ex. 1001, 16:10–20; Dec. on Inst. 19 (quoting same); see also Ex. 1001,
`9:14–23 (disclosing that an application program “will produce an exchange
`of a sequence of packets over” a network that is characteristic of the
`program, but “[s]uch characteristics may not be completely revealing at the
`individual packet level[, and] . . . may require the analyzing of many
`
`4
`
`

`

`IPR2020-00335
`IPR2020-00485
`Patent 6,651,099 B1
`
`packets . . . to have enough information needed to recognize particular
`application programs”); Dec. on Inst. 19 (quoting same).
`
`We are not persuaded by Petitioner’s argument that we “conflate[d]
`the terms ‘state transition pattern(s)’ and ‘sequence of packets.’” Req.
`Reh’g 4. To that end, Petitioner argues that we improperly “replace[d] the
`words ‘as a result of’ with ‘for’ or ‘of’ . . . [, which] altered this limitation’s
`meaning to require a sequence of transitions, which is contrary to the claim.”
`Id. at 4 (citing Dec. on Inst. 18–19). We disagree. Rather, our phrasing
`regarding this limitation remains consistent with requiring that state
`transition patterns, including at least the traversed particular transition
`pattern, are patterns which involve multiple packets — having one or more
`transitions is separate from this requirement. Ex. 1001, 35:31–39; see also
`id. at 34:27–32 (discussing single state transitions versus a sequence of state
`transitions, rather than the number of packets). Again, the limitation recites
`“traversing a particular transition pattern as a result of a particular
`conversational flow-sequence of packets.” Id. at 35:31–39 (emphases
`added).
`
`We also are not persuaded by Petitioner’s argument that our view of
`the plain and ordinary meaning of the claimed state transition patterns is
`incorrect because it excludes embodiments (e.g., “a single packet can
`provide the state transition information indicating association of a flow-
`sequence with operation of a particular application program”) disclosed in
`the Specification. Req. Reh’g 5–6 (citing SynQor, Inc. v. Artesyn Techs.,
`Inc., 709 F.3d 1365, 1378–79 (Fed. Cir. 2013)). The Specification clearly
`contrasts embodiments that require patterns covering multiple packets with
`patterns that allow for a single packet. See, e.g., Ex. 1001, 9:14–23, 10:48–
`
`5
`
`

`

`IPR2020-00335
`IPR2020-00485
`Patent 6,651,099 B1
`
`63, 16:10–20. As we discuss above, claim 1 and its limitation requiring “a
`particular conversational flow-sequence of packets” clearly requires multiple
`packets, and thus, is directed to the former embodiment. Id. at 35:31–39.
`Contrary to Petitioner’s argument, it is not necessary for claim 1 to cover all
`disclosed embodiments, particularly when the clear language of the
`limitation shows that it does not. See Baran v. Med. Device Techs., 616 F.3d
`1309, 1316 (Fed. Cir. 2010) (“It is not necessary that each claim read on
`every embodiment.”); Helmsderfer v. Bobrick Washroom Equip., Inc., 527
`F.3d 1379, 1383 (Fed. Cir. 2008) (“It is often the case that different claims
`are directed to and cover different disclosed embodiments.”).
`
`We also are not persuaded by Petitioner’s argument that Patent Owner
`agrees with Petitioner’s understanding of state transition patterns because
`“Patent Owner has stated that . . . [certain] quotes from the ’903 Provisional
`[that discuss both embodiments] provide sufficient written description
`support for” this limitation. Req. Reh’g 6–7 (citing Ex. 1112,2 3–4); see
`also id. at 6 (quoting Ex. 1001, 10:51–63, 34:27–29; Ex. 1016, 16:19–25,
`36:10–12). First, Petitioner bases its argument on selecting a few cites from
`a lengthy string cite, which we find is too speculative to establish that Patent
`Owner’s understanding of state transition patterns differs from our view.
`Req. Reh’g 6–7; Ex. 1112, 3–4. Second, Petitioner fails to address how
`litigation positions taken by Patent Owner as support for claim limitations
`can serve to contradict the plain language of the limitation (e.g., “of
`packets”).
`
`
`2 We do not address whether Petitioner has shown good cause to admit
`Exhibit 1112, as we find unavailing Petitioner’s arguments based on this
`exhibit.
`
`6
`
`

`

`IPR2020-00335
`IPR2020-00485
`Patent 6,651,099 B1
`
`Lastly, we find inapposite Petitioner’s argument concerning Sun’s
`
`RPC (Remote Procedure Call) Bind Lookup application. Req. Reh’g 7–8.
`The gist of Petitioner’s argument appears to be that this application “may be
`identified by examining a single packet used to transmit a request.” Id. at 7.
`For example, Petitioner argues that “transition in state is recognized from
`information in the packet (including identification of a particular port) and is
`sufficient to identify the associated application.” Id. (citing Ex. 1001, 33:6–
`55). At most, this discussion is an example of an embodiment that allows
`for application identification based on a single packet. Ex. 1001, 33:6–55.
`As we discuss above, however, claim 1 is directed to multiple packet
`embodiments for application identification. Additionally, we note that
`Petitioner’s arguments based on Sun’s RPC (Remote Procedure Call) Bind
`Lookup application are new, and do not appear in the Petition. See generally
`Pet.
`In light of the above, we are not persuaded that there was an erroneous
`
`conclusion of law concerning our view of the plain and ordinary meaning of
`state transition patterns.
` Alleged Obviousness over Riddle and Ferdinand
`Petitioner argues that we overlooked or misapprehended that “Dr.
`
`Weissman’s declaration explains that a POSITA would understand Riddle
`classifies a flow based on traversal of a state transition pattern across packets
`in the flow, rather than based solely on a single flow packet.” Req. Reh’g 9.
`
`We disagree. Our Decisions on Institution considered the arguments
`and testimony as presented and developed in the Petitions, and properly
`determined that Petitioner failed to show that Riddle discloses “a set of
`predefined state transition patterns . . . such that traversing a particular
`
`7
`
`

`

`IPR2020-00335
`IPR2020-00485
`Patent 6,651,099 B1
`
`transition pattern as a result of a particular conversational flow-sequence of
`packets indicates that the particular conversational flow-sequence is
`associated with the operation of a particular application program.” Dec. on
`Inst. 18–22.
`
`Petitioner’s Requests cite Dr. Weissman’s testimony (largely without
`identifying where in the Petitions this testimony was cited) to make
`arguments that it did not make in the Petitions. Req. Reh’g 9–13. First, for
`example, Petitioner’s Requests repeatedly rely on paragraph 351 of
`Dr. Weissman’s declaration to argue that “Riddle discloses that traversing a
`particular state transition pattern for a flow-sequence of packets indicates the
`flow’s associated application program.” Id. at 9, 12 (citing Ex. 1006 ¶ 351).
`In the Petitions, however, Petitioner only cites paragraph 351 in describing
`Riddle’s Figure 2A and arguing that “[a] POSITA would have understood
`that transitioning from one class to the next in this hierarchy involves
`predefined patterns and operations.” Pet. 66 (citing Ex. 1006 ¶ 351). Hence,
`Petitioner’s argument here is untimely. A request for rehearing is not a
`supplemental petition. Nor is it an opportunity to present new arguments or
`evidence that could have been presented and developed in the first instance
`in the Petitions. We could not have misapprehended or overlooked
`arguments or evidence that were not presented or developed in the Petitions.
`
`Notably, Petitioner’s Requests fail to identify any specific factual
`error in our factual findings concerning Riddle’s Figure 2A. Req. Reh’g 9–
`10, 12 (citing Ex. 1006 ¶ 351). Put differently, Petitioner’s Requests ignore
`the reasoning for our factual findings about Figure 2A’s teachings, including
`that Figure 2A’s tree
`
`8
`
`

`

`IPR2020-00335
`IPR2020-00485
`Patent 6,651,099 B1
`
`
`classifies a flow based on an individual packet’s information and
`“multiple orthogonal classification attributes” (e.g., department
`and application). Ex. 1008, Fig. 2A, 9:16–18, 10:20–39. Put
`differently, Riddle uses the information contained in an
`individual packet in the flow to test for multiple traffic classes
`(e.g., which department and application the packet belongs, if
`any). Id. The application (e.g., FTP) is indicated by information
`within the individual packet, and an orthogonal classification
`attribute (i.e., application), rather than a pattern. Id. In addition,
`although Riddle teaches classifying multiple packets in a flow,
`this classification occurs serially on an individual packet by
`packet basis, rather than relying on state transitions across
`multiple packets. See generally Ex. 1008.
`Dec. on Inst. 19–20.
`
`Second, Petitioner argues that by finding that Riddle is limited to
`“‘classifying a flow based on an individual packet in a flow,’ the Board
`overlooked or misapprehended Dr. Weissman’s uncontested testimony,”
`including paragraphs 360–361 and 366–369. Req. Reh’g 10 (quoting Dec.
`on Inst. 19); see also id. (citing Pet. 71–72) (arguing that these paragraphs
`were cited in the Petition). In the Petitions, however, Petitioner cites these
`paragraphs only in regard to state operations. See Pet. 71–72. Hence,
`Petitioner’s arguments in its Rehearing Requests as they relate to state
`transition patterns and these paragraphs are untimely. Again, a request for
`rehearing is not a supplemental petition.
`
`Third, Petitioner’s Requests argue, in the context of service
`aggregates, that Riddle’s claim 5 supports its argument that Riddle teaches
`this limitation. Req. Reh’g 11 (citing Ex. 1008, 16:40–48; Pet. 62–63). In
`the Petitions, however, Petitioner cites Riddle’s claim 5 for a different
`limitation in arguing that Riddle’s Figure 4B “looks up whether a flow
`matches a traffic class in relation to classifying a service aggregate based on
`
`9
`
`

`

`IPR2020-00335
`IPR2020-00485
`Patent 6,651,099 B1
`
`a plurality of indicators.” Pet. 62–63 (citing Ex. Ex. 1008, 16:40–48).
`Hence, this argument is untimely. Moreover, like above, Petitioner’s
`Requests fail to identify any specific error in our factual findings concerning
`Riddle’s service aggregates. See Dec. on Inst. 20 (making factual findings
`about Riddle’s service aggregates). Not finding Dr. Weissman’s testimony
`(e.g., paragraphs 356–357) persuasive in light of Riddle’s teachings is not
`evidence of clear error. Id.
`
`Fourth, Petitioner argues that “Riddle makes clear [that] Fig[ure] 4A’s
`flowchart may operate on state transitions across multiple packets” because
`“Riddle specifies this flowchart ‘may execute on multiple instances of list
`308’” and “teaches ‘a flow specification is parsed from the flow being
`classified.’” Req. Reh’g 11 (citing Ex. 1008, 12:42–63) & n.4 (quoting Ex.
`1008, 12:37–39). These arguments are new, and hence are untimely.
`Compare Req. Reh’g 11–12, with Pet. 68–69. Moreover, Petitioner’s
`argument that “Dr. Weissman also opines that Riddle’s Fig 4A flowchart
`teaches examining state transitions across multiple packets to indicate a
`particular program” is conclusory and untethered to our specific factual
`findings so as to sufficiently allege error. See Req. Reh’g 12 (citing Ex.
`1006 ¶¶ 120–121, 132, 299, 330, 332, 354–355, 361, 367–368). Moreover,
`Petitioner’s argument cites numerous paragraphs from Dr. Weissman’s
`declaration that were not cited in the Petitions’ discussion of Riddle’s Figure
`4A for this limitation. Id.; Pet. 68–69. Again, a request for rehearing is not
`a supplemental petition.
`
`Lastly, Petitioner argues that Riddle’s FTP example teaches
`“progression from establishing a TCP connection to establishing FTP
`command and data channels to permit exchange of FTP data is a pattern of
`
`10
`
`

`

`IPR2020-00335
`IPR2020-00485
`Patent 6,651,099 B1
`
`state transitions that occurs across multiple packets, is predefined by the
`classification tree, and leads to the recognition of an FTP program associated
`with the flow.” Req. Reh’g 12–13 (citing Pet. 66). Petitioner, however, fails
`to identify any specific factual error in our findings regarding Riddle’s
`teachings regarding FTP. Id.; Dec. on Inst. 19–20 (finding that Riddle’s
`teachings regarding the FTP application fail to teach this limitation). These
`findings explain why Riddle’s FTP application discussion fails to teach the
`disputed limitation. Dec. on Inst. 19–20.
`Simply put, the fact that we did not find Dr. Weissman’s testimony, as
`developed in the Petitions, persuasive does not mean we overlooked or
`misapprehended his testimony, or that our Decisions were based on clearly
`erroneous factual findings. We are not persuaded that our Decisions were
`based on clearly erroneous factual findings or a clear error of judgment.
` Alleged Obviousness over Riddle, Ferdinand, and Yu
`In our Decisions on Institution, we found that “Petitioner d[id] not
`
`provide any detailed mapping of claim 1’s limitations for th[e] asserted
`ground[s] [based on Riddle, Ferdinand, and Yu], leaving any such mapping
`unclear, or worse, speculative,” and that “[f]or example, Petitioner d[id] not
`explain what, if anything, in Yu maps to the recited ‘set of predefined state
`transition patterns’ — Petitioner d[id] not even use the phrase in its showing
`for this ground.” Dec. on Inst. 23 (citing Pet. 80–87). Furthermore, “[w]e
`decline[d] to speculate as how Yu’s teachings, if at all, relate to the[]
`limitations of claim 1[, and] . . . we f[ound] the Petition[s] d[id] not ‘set
`forth . . . where each element of the claim is found in the prior art . . . relied
`upon,’” as required by 37 C.F.R. § 42.104(b)(4). Id. at 23–24.
`
`11
`
`

`

`IPR2020-00335
`IPR2020-00485
`Patent 6,651,099 B1
`
`Petitioner argues in its Requests that we “overlook[ed] Petitioner’s
`
`analysis of Yu and misapprehend[ed] Dr. Weissman’s testimony regarding
`Yu.” Req. Reh’g 13–15. More specifically, Petitioner argues that “[b]oth
`Petitioner and Dr. Weissman explain that a POSITA would have understood
`Yu teaches using a pattern across multiple packets as a flow classification
`criterion, as shown in” cited passages from Yu and Dr. Weissman’s
`declaration in the Petitions. Id. at 13–14 (citations omitted).
`
`Petitioner’s arguments now try to map, at least for some limitations,
`the passages from Yu and Dr. Weissman that Petitioner cited in the Petitions
`to limitations of claim 1. Id. This attempted mapping comes too late. A
`request for rehearing is not a supplemental petition. The Petitions did not set
`forth where each element of the claim is found in the prior art relied upon,
`and Petitioner’s Requests cannot cure this failing. See Pet. 80–84; 37 C.F.R.
`§ 42.104(b)(4). We are not persuaded that this was an abuse of discretion.
` CONCLUSION
`On this record, Petitioner neither persuades us that we overlooked or
`misapprehended any matter, nor sufficiently shows that denying institution
`of an inter partes review of claims 1 and 2 of the ’099 patent in IPR2020-
`00335 and denying institution of an inter partes review of claims 4 and 5 of
`the ’099 patent in IPR2020-00485 was an abuse of discretion.
` ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that the Requests for Rehearing are denied.
`
`12
`
`

`

`IPR2020-00335
`IPR2020-00485
`Patent 6,651,099 B1
`
`For PETITIONER:
`
`Joseph Edell
`Adam Allgood
`FISCH SIGLER LLP
`joe.edell.ipr@fischllp.com
`adam.allgood@fischllp.com
`
`Scott McKeown
`James Batchelder
`Mark Rowland
`ROPES & GRAY LLP
`Scott.mckeown@ropesgray.com
`James.batchelder@ropesgray.com
`Mark.rowland@ropesgray.com
`
`
`For PATENT OWNER:
`
`Robert Bullwinkel
`Michael Heim
`HEIM PAYNE & CHORUSH, LLP
`abullwinkel@hpcllp.com
`mheim@hpcllp.com
`
`
`13
`
`

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