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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`———————
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`———————
`
`TESLA, INC.,
`Petitioner
`
`———————
`
`IPR2025-00341
`U.S. Patent No. 7,181,743
`
`
`PETITION FOR INTER PARTES REVIEW
`UNDER 35 U.S.C. § 312 AND 37 C.F.R. § 42.104
`
`
`
`
`
`
`
`

`

`
`
`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
`
`TABLE OF CONTENTS
`
`Petitioner’s Exhibit List ............................................................................................. 4
`
`I.
`
`II.
`
`Introduction ...................................................................................................... 6
`
`Grounds for standing ....................................................................................... 7
`
`III. Note .................................................................................................................. 7
`
`IV. Technology background .................................................................................. 7
`
`V.
`
`The ’743 patent ................................................................................................ 7
`
`VI. Prosecution history of the ’743 patent ...........................................................14
`
`VII. Priority date of the ’743 patent ......................................................................15
`
`VIII. Level of ordinary skill in the art ....................................................................17
`
`IX. Claim construction .........................................................................................17
`
`X.
`
`Relief requested and the reasons for the requested relief ..............................17
`
`XI.
`
`Identification of how the claims are unpatentable .........................................17
`
`A.
`
`B.
`
`C.
`
`Challenged claims .............................................................................. 17
`
`Statutory grounds for challenges ........................................................ 18
`
`Ground 1: Claims 10, 11, 14, 16, and 18 are obvious under 35
`U.S.C. § 103 over Welch alone and in combination with
`Ravindran. .......................................................................................... 20
`
`D. Ground 2: Claims 10, 11, 14, 16, and 18 are obvious under 35
`U.S.C. § 103 over Welch, Ravindran, and Hosokawa. ...................... 79
`
`XII. Welch and Ravindran are Printed Publications .............................................96
`
`XIII. Discretionary denial is inappropriate .............................................................97
`
`2
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
`
`A. No basis for § 325(d) denial ............................................................... 97
`
`B.
`
`C.
`
`No basis for Fintiv denial ................................................................... 98
`
`No basis for General Plastic denial ................................................. 100
`
`XIV. Conclusion ...................................................................................................101
`
`XV. Mandatory notices .......................................................................................102
`
`A.
`
`B.
`
`C.
`
`Real party-in-interest ........................................................................ 102
`
`Related matters ................................................................................. 102
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`Lead and back-up counsel and service information ......................... 103
`
`Certificate of Word Count .....................................................................................104
`
`Certificate of Service .............................................................................................105
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`3
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`

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`
`
`Ex.1001
`
`Ex.1002
`
`Ex.1003
`Ex.1004
`
`Ex.1005
`
`Ex.1006
`
`Ex.1007
`
`Ex.1008
`
`Ex.1009
`Ex.1010
`
`Ex.1011
`
`Ex.1012
`Ex.1013
`
`Ex.1014
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
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`PETITIONER’S EXHIBIT LIST
`
`U.S. Patent No. 7,181,743 to Beale et al. (“’743 patent”)
`
`Prosecution File History of U.S. Patent No. 7,181,743
`
`Declaration of Erez Zadok under 37 C.F.R. § 1.68
`Curriculum Vitae of Erez Zadok
`
`“Distributed, Scalable, Dependable Real-Time Systems:
`Middleware Services and Applications.” Lonnie R. Welch et al.,
`Proceedings 13th International Parallel Processing Symposium and
`10th Symposium on Parallel and Distributed Processing, April
`1999 (“Welch”)
`
`“Specification and Modeling of Dynamic, Distributed Real-time
`Systems.” Lonnie R. Welch et al. IEEE Real-Time Systems
`Symposium, 72-81, IEEE Computer Society Press, Dec. 1998
`(“Ravindran”)
`U.S. Patent No. 6,088,727 to Hosokawa et al. (“Hosokawa”)
`
`U.S. Patent No. 6,269,396 to Shah et al. (“Shah”)
`
`U.S. Provisional Patent No. 60/207,891 (“’891 provisional”)
`IV’s Complaint, Intellectual Ventures II, LLC v. Tesla, Inc., No.
`6:24-cv-188-ADA (WDTX)
`
`Proposed Scheduling Order, Intellectual Ventures II, LLC v. Tesla,
`Inc., No. 6:24-cv-188-ADA (WDTX)
`
`Statistics on District Court Timing
`Interim Procedure for Discretionary Denials in AIA Parallel
`District Court Litigation, June 21, 2022
`IV’s Preliminary Infringement Contentions, Intellectual Ventures
`II, LLC v. Tesla, Inc., No. 6:24-cv-188-ADA (WDTX)
`
`4
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
`
`Declaration of Sylvia Hall-Ellis, Ph.D.
`
`U.S. Patent Publication No. 2002/0064126 to Bhaatal (“Bhattal”)
`
`U.S. Patent No. 6,041,306 to Du (“Du”)
`U.S. Patent No. 6,742,020 to Dimitroff (“Dimitroff”)
`
`Microsoft Computer Dictionary, 3rd ed., 1997, excerpts
`
`Microsoft Computer Dictionary, 4th ed., 1999, excerpts
`
`
`
`
`
`
`Ex.1015
`
`Ex.1016
`
`Ex.1017
`Ex.1018
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`Ex.1019
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`Ex.1020
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`5
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`I.
`
`INTRODUCTION
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
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`U.S. Patent No. 7,181,743 (“the ’743 patent,” Ex.1001) was granted in error
`
`because a subset of the named inventors (along with others) publicly disclosed the
`
`claimed subject matter in a printed publication—a whitepaper—more than a year
`
`before filing. During prosecution, the whitepaper was not disclosed to or otherwise
`
`considered by the Office.
`
`The ’743 patent attempts to protect the concept of a “resource manager for a
`
`distributed environment,” which creates copies of a scalable application across a
`
`network. The resource manager starts, stops, or moves the application copies in
`
`response to performance information. Ex.1001, Abstract. The whitepaper
`
`(“Welch,” Ex.1005) describes this same “resource manager” concept using the
`
`same terminology. Ex.1005, 2-4 (describing “moving or replicating an application
`
`program” based on Quality of Service (QoS) performance).
`
`Accordingly, pursuant to 35 U.S.C. §§ 311, 314(a), and 37 C.F.R. § 42.100,
`
`Tesla, Inc. (“Petitioner”) respectfully requests that the Board review and cancel as
`
`unpatentable under (pre-AIA) 35 U.S.C. §103(a) claims 10, 11, 14, 16, and 18 (the
`
`“Challenged Claims”) of the ’743 patent.
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`
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`6
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`II. GROUNDS FOR STANDING
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
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`Petitioner certifies that the ’743 patent is eligible for IPR and that Petitioner
`
`is not barred or estopped from requesting IPR challenging the patent claims. 37
`
`C.F.R. § 42.104(a).
`
`III. NOTE
`
`Petitioner cites to exhibits’ original page numbers, unless noted otherwise.
`
`Emphasis in quoted material has been added. Claim terms are presented in italics.
`
`IV. TECHNOLOGY BACKGROUND
`
`Dr. Zadok’s expert declaration provides a brief background on distributed
`
`and scalable computing systems, as they were known in the late 1990s. See
`
`Ex.1003, ¶¶39-79.
`
`V. THE ’743 PATENT
`
`The ’743 patent relates to “a distributed environment comprised of hosts
`
`instantiating copies of a scalable application.” Ex.1001, 2:46-47. A scalable
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`application is one that uses multiple copies (i.e., instances) of an application that
`
`scale up or down to maintain a desired performance. See, e.g., Ex.1001, 18:12-58.
`
`“[T]he present invention is illustrated in FIGS. 1A, 1B, which includes a plurality
`
`of Host computers A, B, ..., N operatively connected to one another and Resource
`
`Management hardware RM via a Network 100.” Ex.1001, 5:31-36. “[I]t will be
`
`appreciated that hosts A-N each can instantiate applications 1-M.” Ex.1001, 5:45-
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`7
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`

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`49. The N hosts (red) and M applications (blue) are shown below in Figs. 1A and
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
`
`1B.
`
`N hosts
`
`M applications
`
`Ex.1001, Figs. 1A, 1B (annotated); Ex.1003, ¶80.
`
`
`
`The distributed environment, shown above, is managed by “a resource
`
`management device generating signals which start up, shutdown or move a
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`selected one of the copies responsive to [] information regarding performance of
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`all copies of the scalable application and [] information regarding performance of
`
`the hosts.” Ex.1001, 2:47-52.
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`8
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
`
`The ’743 patent describes management of the distributed computing
`
`
`
`system in terms of “functions” and “function groups” (described in FG#
`
`format). Ex.1001, 7:15-8:61. For example, the ’743 patent describes a function
`
`group for monitoring the hosts and the network: “FG1—Host and Network
`
`Monitoring. This function group consists of software which monitors the host and
`
`network resources within the distributed environment.” Ex.1001, 7:29-31. FG1
`
`“collects extensive run-time information on host and network configuration,
`
`statuses, and performance.” Ex.1001, 7:31-32. FG1 is recited in claim 10, for
`
`example, as “a first function group which monitors the host and network
`
`resources.” Ex.1001, claim 10 (limitation [10.1] below). The first function group is
`
`illustrated in Fig. 2B below.
`
`9
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
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`Ex.1001, Fig. 2B (annotated); Ex.1003, ¶82.
`
`“first function
`group”
`
`
`
`The ’743 patent also describes a second function group for monitoring the
`
`applications that are running on the hosts: “FG2—Application-Level
`
`Instrumentation. The instrumentation function group provides general-purpose
`
`application event reporting and event correlation capabilities.” Ex.1001, 7:40-42.
`
`“This application data is forwarded to other components of the instrumentation
`
`subsystem which collect data from applications on hosts throughout the distributed
`
`environment.” Ex.1001, 7:47-49. The second function group is recited in claim 10,
`
`for example, as “a second function group which provides application computer
`
`program event reporting and event correlation capabilities.” Ex.1001, claim 10
`
`10
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`

`

`
`(limitation [10.2] below). The second function group is illustrated in Fig. 2B
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
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`below.
`
`“second function
`group”
`
`Ex.1001, Fig. 2B (annotated); Ex.1003, ¶83.
`
`
`
`The ’743 patent also describes a third function group for making decisions
`
`and allocating resources: “FG4—Resource Allocation Decision-Making. This
`
`subsystem provides the reasoning and decision-making capabilities of the Resource
`
`Management architecture.” Ex.1001, 8:5-7. “The components of this subsystem
`
`use information from other subsystems in order to determine the health and state of
`
`the distributed environment and the options that are available for attempting to
`
`recover from faults or unacceptable performance.” Ex.1001, 8:7-9. For example,
`
`11
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`

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`the third function group may decide “1) where new applications should be started;
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
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`2) whether and where failed applications should be restarted; 3) based on
`
`application inter-dependencies, whether and where additional applications should
`
`[] be started prior to starting a particular application,” etc. Ex.1001, 8:14-23. This
`
`function group is recited in claim 10 as “a third function group which provides
`
`reasoning and decision making capabilities for the resource managed system.”
`
`Ex.1001, claim 10 (limitation [10.3] below). The third function group is illustrated
`
`in Fig. 2A below.
`
`“third
` function
`group”
`
`Ex.1001, Fig. 3 (annotated); Ex.1003, ¶85.
`
`
`
`Finally, the ’743 patent describes a fourth function group for enacting the
`
`12
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`decisions made by the third function group: “FG5—Application (Resource)
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
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`Control. This subsystem provides application control (i.e., Program Control)
`
`capabilities which permit starting, stopping, and configuring applications on each
`
`of the hosts in the distributed environment.” Ex.1001, 8:31-35. This function group
`
`is recited in claim 10 as “a fourth function group which provides program control
`
`capabilities permitting starting, stopping, and configuring of selected ones of the
`
`M managed characteristic application computer programs on respective ones of
`
`the N hosts in the resource managed system.” Ex.1001, claim 10 (limitation [10.7]
`
`below). The fourth function group is illustrated in Fig. 2B below.
`
`Ex.1001, Fig. 2B (annotated); Ex.1003, ¶86.
`
`“fourth function
`group”
`
`
`
`13
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`

`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
`
`The claims of the ’743 patent merely recite basic concepts of managing a
`
`
`
`
`distributed computing system using the functionality described above. In
`
`particular, the claims recite the basic concepts of 1) monitoring the hosts and
`
`network, 2) monitoring the applications, 3) making decisions based on the
`
`monitoring, and 4) enacting those decisions. See, e.g., Ex.1001, claim 10; Ex.1003,
`
`¶87.
`
`However, as explained in this Petition, the functionality for managing a
`
`distributed system was not new. Indeed, some of the inventors of the ’743 patent,
`
`along with others, already disclosed these concepts in various papers before the
`
`’743 patent was filed. Ex.1003, ¶¶80-88.
`
`VI. PROSECUTION HISTORY OF THE ’743 PATENT
`
`The ’743 patent was filed as U.S. Application No. 09/864,825 on May 24,
`
`2001. It claims priority to U.S. provisional application No. 60/207,891 (“’891
`
`provisional”) (Ex.1009), filed on May 25, 2000. See Ex.1001, title page.
`
`After several rounds of prosecution, the Office allowed some claims,
`
`including what is now issued claim 10. Ex.1002, 121, 123-33, 164, 182-192, 208-
`
`222. The Office did not give any specific reasons for allowance. Ex.1002, 14-17.
`
`The most recent amendment to issued claim 10 related to “the QoS requirements
`
`dictating parameters regarding service quality of the M management characteristic
`
`application programs” and “that the managed characteristic application computer
`
`14
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`

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`programs are moved, shutdown, and started in accordance with satisfaction of the
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
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`QoS requirements.” Ex.1002, 150-51.
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`However, for the reasons explained in this Petition, these concepts were
`
`already known. Ex.1003, ¶¶89-93.
`
`VII. PRIORITY DATE OF THE ’743 PATENT
`
`For the ’743 patent to be entitled to the priority date of the ’891 provisional,
`
`the ’891 provisional (Ex.1009) must provide written description support for the
`
`subject matter claimed in the ’743 patent. See New Railhead Mfg., L.L.C. v.
`
`Vermeer Mfg. Co., 298 F.3d 1290, 1294 (Fed. Cir. 2002) (to be entitled to the
`
`filing date of an earlier application, the earlier application must meet the written
`
`description requirement).
`
`To satisfy the written description requirement of pre-AIA 35 U.S.C. §112 ¶
`
`1, a patent specification must describe the claimed invention in sufficient detail
`
`that one skilled in the art can reasonably conclude that the inventor had possession
`
`of the claimed invention. See Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336,
`
`1340, 94 USPQ2d 1161, 1167 (Fed. Cir. 2010) (en banc). An applicant shows
`
`possession of the claimed invention by describing the claimed invention with all of
`
`its limitations. See Lockwood v. Amer. Airlines, Inc., 107 F.3d 1565, 1572, 41
`
`USPQ2d 1961, 1966 (Fed. Cir. 1997). Moreover, it is not sufficient that the
`
`specification merely lists each claimed element. Rather, the specification must
`
`15
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`

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`support the particular claimed combination of elements. See Hyatt v. Dudas, 492
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
`
`F.3d 1365, 1371, 83 USPQ2d 1373, 1376-1377 (Fed. Cir. 2007).
`
`Here, the ’891 provisional does not provide written description support for
`
`the specific combination of elements recited in the claims. Claim 10, for example,
`
`organizes various functions of the distributed computing management system into
`
`specific “functions” and “function groups.” Ex.1001, claim 10. However, the ’891
`
`provisional does not describe these specific function groups. Indeed, the term
`
`“function group” and the concept of function groups are entirely absent from the
`
`provisional application. See Ex.1009; Ex.1003, ¶¶94-96.
`
`For example, the ’891 provisional application does not describe “a third
`
`function group which provides reasoning and decision making capabilities for the
`
`resource managed system.” See Ex.1009. Moreover, while claim 10 recites that the
`
`“third function” includes a “first function,” a “second function,” and a “third
`
`function,” the ’891 provisional does not describe these three specific functions as
`
`being within a “third function group.” Ex.1001, claim 10. In other words, no such
`
`arrangement of functions exists within the provisional application. See Ex.1009;
`
`Ex.1003, ¶97.
`
`Accordingly, the Challenged Claims of the ’743 patent are entitled to a
`
`priority date no earlier than the May 24, 2001 filing date of the ’743 patent.
`
`Ex.1003, ¶98.
`
`16
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`VIII. LEVEL OF ORDINARY SKILL IN THE ART
`
`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
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`A person of ordinary skill in the art (“POSITA”) in May of 2001 would have
`
`been someone knowledgeable and familiar with the areas of networking and
`
`distributed computing that are pertinent to the ’743 patent. That person would have
`
`a bachelor’s degree in computer science, computer engineering, electrical
`
`engineering, or equivalent training, and approximately 2-3 years of professional
`
`experience relating to distributed computing. Lack of professional experience can
`
`be remedied by additional education, and vice versa. Ex.1003, ¶¶32-34.
`
`IX. CLAIM CONSTRUCTION
`
`Petitioner submits that, for the purposes of this proceeding and the grounds
`
`presented herein, no claim term requires express construction. Nidec Motor Corp.
`
`v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017).
`
`Ex.1003, ¶99.
`
`X. RELIEF REQUESTED AND THE REASONS FOR THE
`REQUESTED RELIEF
`
`Petitioner asks that the Board institute an IPR trial and find the Challenged
`
`Claims unpatentable in view of the analysis below.
`
`XI.
`
`IDENTIFICATION OF HOW THE CLAIMS ARE UNPATENTABLE
`
`A. Challenged claims
`
`Petitioner challenges claims 10, 11, 14, 16, and 18.
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`17
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
`
`B.
`
`Statutory grounds for challenges
`
`Grounds
`#1
`
`#2
`
`Claims
`10, 11, 14, 16,
`and 18
`10, 11, 14, 16,
`and 18
`
`Pre-AIA Basis
`35 U.S.C. § 103 over Welch alone and in
`combination with Ravindran
`35 U.S.C. § 103 over Welch, Ravindran, and
`Hosokawa
`
`Welch (Ex.1005): “Distributed, Scalable, Dependable Real-Time Systems:
`
`
`
`
`
`Middleware Services and Applications.” Welch is a whitepaper that was published
`
`in the Proceedings 13th International Parallel Processing Symposium and 10th
`
`Symposium on Parallel and Distributed Processing. The proceedings compilation
`
`has a copyright date of 1999, and includes papers presented from Apr. 12-19, 1999,
`
`at the symposium. Welch was publicly available as of at least Dec 16, 1999. See
`
`Section XII below (citing Dr. Hall-Ellis Declaration (Ex.1015)). Welch is thus
`
`prior art under pre-AIA 35 U.S.C. §102(b) because it was presented publicly and
`
`published more than one year before the non-provisional filing date (May 24,
`
`2001) of the ’743 patent.
`
`To the extent Patent Owner attempts to rely on the provisional filing date
`
`(May 25, 2000) of the ’743 patent, Welch is also prior art under pre-AIA § 102(a).
`
`Welch was authored by a subset of the inventors of the ’743 patent along with
`
`other non-inventors. Because the list of authors is different than the set of ’743
`
`inventors (a different inventive entity), Welch is prior art under pre-AIA § 102(a).
`
`18
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`
`See In re Katz, 687 F.2d 450, 215 USPQ 14 (CCPA 1982).
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
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`Ravindran (Ex.1006): “Specification and analysis of dynamic, distributed
`
`real-time systems,” in Proceedings of the 19th IEEE Real-Time Systems
`
`Symposium, 72-81, IEEE Computer Society Press, 1998” (“Ravindran”).
`
`Ravindran is prior art under pre-AIA §102(b) because it was published and
`
`publicly accessible more than one year before the earliest priority date of the ’743
`
`patent. In addition, Ravindran, like Welch, is prior art under pre-AIA §102(a)
`
`because it was publicly available as of at least December 10, 1998 (Ex.1015) and
`
`was authored by a subset of the inventors of the ’743 patent along with other non-
`
`inventors.
`
`While the lead author of Ex.1006 is the same as Ex.1005 (Lonnie Welch),
`
`Petitioner refers to Ex.1006 by the second-named author (Binoy Ravindran) to
`
`distinguish from Ex.1005.
`
`Hosokawa: U.S. Patent No. 6,088,727 (“Hosokawa”) was filed October 17,
`
`1997, and issued on July 11, 2000. Hosokawa is prior art under pre-AIA § 102(a)
`
`and (e) for the non-provisional filing date (May 24, 2001) of the ’743 patent.
`
`Petitioner’s § 103 obviousness grounds rely on the combined teachings of
`
`the references and not on a physical incorporation of elements. See In re Mouttet,
`
`686 F.3d 1322, 1332 (Fed. Cir. 2012); Ex.1003, ¶102.
`
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
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`C. Ground 1: Claims 10, 11, 14, 16, and 18 are obvious under 35
`U.S.C. § 103 over Welch alone and in combination with Ravindran.
`
`1.
`
`Welch
`
`Welch describes the same distributed system management software that is
`
`described and claimed in the ’743 patent. Ex.1005, 1-5. In particular, Welch
`
`describes “distributed real-time systems” which are “scalable” and designed to
`
`“meet the QoS requirements of each application they manage.” Ex.1005, 1.
`
`Welch is directed to QoS management software that manages resources for a
`
`distributed real-time system. Ex.1005, 1. Welch describes “distributed hardware”
`
`(e.g., a plurality of hosts) that run several instances of “Real-Time Control System
`
`(RTCS) application programs on the specified hosts.” Ex.1005, 2-3. These RTCS
`
`applications are scalable according to demand. A resource manager is used to
`
`“move a program to a different host or LAN, shed a program, or replicate a
`
`program) to improve QoS.” Ex.1005, 3. Welch illustrates both the “logical
`
`architecture” and the “physical architecture” of the QoS management software in
`
`Figs. 1 and 2 below.
`
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
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`
`
`Ex.1005, Figs. 1-2.
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`21
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`IPR2025-00341 Petition
`Inter Partes Review of 7,181,743
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`Welch discloses the same functionality corresponding to the “function
`
`
`
`groups” that are recited in the Challenged Claims. Ex.1005, 2-3. For example,
`
`Welch describes a first function group in the form of hardware monitors that
`
`monitor host and network resources. “Hardware (HW) Monitors continuously
`
`observe a resource’s load index and pass this information to the Hardware Data
`
`Repository (step 2 of Figure 3), which in turn passes such information to the
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`System Data Repository (step 3 of Figure 3).” Ex.1005, 3. As illustrated in Fig. 2
`
`below, the hardware monitors collect host data related to “CPU” and “memory”
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`and network data related to “throughout” and “latency” (“host and network
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`resources”). Ex.1005, Fig. 2.
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`Hardware
`Monitors
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`Ex.1005, Fig. 2 (annotated); Ex.1003, ¶106.
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`
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`Welch also discloses a second function group in the form of software
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`
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`
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`monitors. Ex.1005, 3. “The reallocations made by the resource manager make use
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`of information provided by the hardware and software monitors.” Ex.1005, 3. As
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`shown in Fig. 2 below, the RTCS applications provide information to the software
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`monitors, including “Sub-path latency,” “Path latency,” and “Profile information.”
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`The software monitors then report information to the Resource Manager as
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`“Unhealthy sub-paths,” “Trend of load,” and “Pathid.” Ex.1005, Fig. 2.
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`Hardware
`Monitors
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`Software
`Monitors
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`Ex.1005, Fig. 2 (annotated); Ex.1003, ¶107.
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`Welch further discloses a third function group in the form of a resource
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`manager. Ex.1005, 3. “The core component of the middleware is the resource
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`manager. It is activated when programs die and when time-constrained control
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`paths miss their deadlines. In response to these events, it takes appropriate
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`measures to improve the quality of service delivered to the applications.” Ex.1005,
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`3. The resource manager is shown in Fig. 2 below.
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`Resource Manager
`
`Hardware
`Monitors
`
`Software
`Monitors
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`
`
`Ex.1005, Fig. 2 (annotated); Ex.1003, ¶108.
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`
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`Welch also discloses a fourth function group in the form of a program
`
`control element. Ex.1005, 2-3. “The program control (PC) component consists of a
`
`central control program and a set of startup daemons. When resource manager
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`needs to start a program on a particular host, it informs the control program, which
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`notifies the startup daemon on that host.” Ex.1005, 3. The program control element
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`is illustrated in Fig. 2 below.
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`Program Control element
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`Resource Manager
`
`Hardware
`Monitors
`
`Software
`Monitors
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`
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`Ex.1005, Fig. 2 (annotated); Ex.1003, ¶109.
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`
`
`Accordingly, Welch’s authors—of which some are inventors of the ’743
`
`patent—had previously publicly disclosed the elements in the Challenged Claims.
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`Welch is analogous art to the ’743 patent because it is directed to the same
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`
`
`field of endeavor (distributed computing) as the ’743 patent. Compare Ex.1001,
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`Abstract (“A resource manager for a distributed environment”) with Ex.1005, title
`
`(“Distributed, Scalable, Dependable Real-Time Systems: Middleware Services and
`
`Applications”). In addition, Welch is reasonably pertinent to a problem addressed
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`by the inventors of the ’743 patent because Welch describes the same resource
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`management techniques for improving efficiency and scalability that are
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`purportedly solved by the ’743 patent. See Ex.1005, 1. The ’743 patent likewise
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`purports to address inefficient use of resources. See Ex.1001, 2:15-20 (seeking to
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`“provide a system that is both flexible and adaptive (or at least easily adapted) to
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`changes in system configuration, performance bottlenecks, survivability
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`requirements, scalability, etc.”); Ex.1003, ¶¶103-12.
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`2.
`
`Ravindran
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`Welch references other whitepapers (e.g., Ravindran) that were authored by
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`some of the same authors (and some of the inventors of the ’743 patent). These
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`whitepapers describe various aspects of Welch’s distributed system in further
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`detail.
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`For example, Welch refers to a “path-based real-time subsystem (see [11]).”
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`Ravindran (Ex.1006) is Paper 11 in Welch. Ravindran, for example, also describes
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`hardware and software monitors for monitoring the performance of applications
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`and hosts. Ex.1006, 7; Ex.1003, ¶¶113-14.
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`Claim 10.
`
`3.
`[10.0] Software stored on at least one host for converting N networked hosts into
`a resource managed system instantiating M managed characteristic application
`computer programs, each managed characteristic application computer program
`managed by one of the N networked hosts, the software comprising:
`
`To the extent the preamble is limiting, Welch discloses or at least renders
`
`obvious [10.0]. Ex.1003, ¶117.
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`First, Welch describes QoS management software (“Software”) that
`
`manages the resources of a distributed system (“software...for converting N
`
`networked hosts into a resource managed system”). Welch “presents middleware
`
`services that support such dynamic real-time systems through adaptive resource
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`management.” Ex.1005, 1. Welch’s middleware is embodied as “QoS management
`
`software.” Ex.1005, 2-3. Welch’s Fig. 1, below, illustrates the “logical
`
`architecture” of the QoS management software (“Software”). Ex.1005, 2; Ex.1003,
`
`¶¶118-22.
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`“N networked
`hosts”
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`Ex.1005, Fig. 1 (annotated); Ex.1003, ***.
`
`
`
`As illustrated in Fig. 1, one logical function of the QoS management
`
`
`
`
`
`software is to receive hardware metrics from “distributed hardware.” Ex.1005, Fig.
`
`1. The distributed hardware represents “N networked hosts” because the QoS
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`management software “recommend[s] actions (e.g., move[s] a program to a
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`different host or LAN ...)” which indicates that the “distributed hardware”
`
`includes multiple hosts interconnected by at least one LAN (Large Area Network).
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`Ex.1005, 2. Welch explains that “the allocation analysis component ... consults
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`resource discovery for host and LAN load index metrics.” Ex.1005, 2. Welch
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`further explains that “[t]he Resource Man[a]ger needs to decide on which host(s)
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`and LAN(s) the unhealthy sub-path needs to be replicated or moved. This decision
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`is made by choosing the host(s) and LAN(s) with the smallest load indices.”
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`Ex.1005, 3. Accordingly, Welch’s QoS management software manages “N
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`networked hosts” because the software manages applications across multiple hosts
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`and LANs of distributed hardware. Ex.1003, ¶¶123-25.
`
`The QoS software’s resource management of the distributed hardware (“N
`
`networked hosts”) makes that distributed hardware a resource managed system
`
`(“software ... for converting N networked hosts into a resource managed system”).
`
`Indeed, Welch explains that “the core component of the middleware [QoS
`
`management software] is the resource manager.” Ex.1005, 2. Welch illustrates
`
`the “resource manager” in Fig. 2, below, which provides additional detail as to the
`
`“physical architecture” of the QoS management software. Ex.1005, Fig. 2;
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`Ex.1003, ¶¶126-27.
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`Resource manager
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`Ex.1005, Fig. 2 (annotated); Ex.1003, ¶128.
`Accordingly, the QoS management software (“Software”) includes a
`
`
`
`resource manager that “takes appropriate measures to improve the quality of
`
`service delivered to the applications.” Ex.1005, 2. Welch explains that “[t]he
`
`reallocations made by the resource manager make use of information provided by
`
`the hardware and software monitors, as well as from a specification file that
`
`describes QoS requirements and the structures of the software system and the
`
`hardware system.” Ex.1005, 2. The resource manager of the QoS management
`
`software thus makes the distributed system a resource managed system
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`(“software...for converting N networked hosts into a resource managed system”).
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`Ex.1003, ¶129.
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`Second, the QoS management software (“Software”) runs on multiple
`
`heterogeneous host platforms and is thus “stored on at least one host.” Welch
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`explains that “The software runs on a heterogeneous network configuration that
`
`includes Myrinet, ATM, FDDI, and ethernet, on multiple heterogeneous host
`
`platforms.” Ex.1005, 4. Accordingly, in Welch, the host platform(s) storing and
`
`running the QoS management software is “at least one host” as claimed. Ex.1003,
`
`¶¶130-31.
`
`Third, the resource manager of the QoS management software starts up
`
`real-time control programs (“instantiating M managed characteristic application
`
`computer programs”). Ex.1005, 2-3. “When resource manager needs to start a
`
`program on a particular host, it informs the control program, which notifies the
`
`startup daemon on that host.” Ex.1005, 3. “The Resource Manager informs the
`
`Program Control to start the Real-Time Control System (RTCS) application
`
`programs on the specified hosts.” Ex.1005, 3. The RTCS application programs are
`
`“instantiate[ed]” because they are each instances