Trials@uspto.gov
`571-272-7822
`
`Paper 12
`Entered: June 7, 2022
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`HEWLETT PACKARD ENTERPRISE COMPANY,
`Petitioner,
`
`V.
`
`INTELLECTUAL VENTURESII LLC,
`Patent Owner.
`
`IPR2022-00211
`Patent 7,783,788 Bl
`
`Before KEN B. BARRETT, NABEEL U. KHAN,and
`STEPHEN E. BELISLE, Administrative Patent Judges.
`
`BARRETT, Administrative Patent Judge.
`
`t
`
`DECISION
`Granting Institution of Inter Partes Review
`35 US.C. § 314
`
`
`571-272-7822
`
`Paper 12
`Entered: June 7, 2022
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`HEWLETT PACKARD ENTERPRISE COMPANY,
`Petitioner,
`
`V.
`
`INTELLECTUAL VENTURESII LLC,
`Patent Owner.
`
`IPR2022-00211
`Patent 7,783,788 Bl
`
`Before KEN B. BARRETT, NABEEL U. KHAN,and
`STEPHEN E. BELISLE, Administrative Patent Judges.
`
`BARRETT, Administrative Patent Judge.
`
`t
`
`DECISION
`Granting Institution of Inter Partes Review
`35 US.C. § 314
`
`
`
`IPR2022-00211
`Patent 7,783,788 Bl
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`I.
`
`INTRODUCTION
`
`A. Background and Summary
`Hewlett Packard Enterprise Company (“Petitioner’’)' filed a Petition
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`requesting inter partes review of U.S. Patent No. 7,783,788 B1 (“the ’788
`
`patent,” Ex. 1001). Paper 2 (‘Pet.”). The Petition challenges the
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`patentability of claims 1-4, 6, and 7 of the ’788 patent. Intellectual
`Ventures II LLC (“Patent Owner’)? filed a Preliminary Response to the
`
`Petition. Paper 11 (“‘Prelim. Resp.”).
`
`An inter partes review may notbeinstituted “unless... the
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`information presented in the petition .
`
`.
`
`. shows that there is a reasonable
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`likelihood that the petitioner would prevail with respect to at least 1 of the
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`claims challenged in the petition.” 35 U.S.C. § 314(a) (2018). Having
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`considered the arguments and evidence presented by Petitioner and Patent
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`Owner, we determine that Petitioner has demonstrated a reasonable
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`likelihood of prevailing on at least one of the challenged claims of the ’788
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`patent. Accordingly, weinstitute an inter partes review asto all the
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`challenged claims of the ’788 patent onall the grounds of unpatentability set
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`forth in the Petition.
`
`' Petitioner identifies Hewlett Packard Enterprise Companyas therealparty-
`in-interest. Pet. 1.
`? Patent Owneridentifies Intellectual Ventures II LLC as the real party-in-
`interest. Paper6, 1.
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`IPR2022-00211
`Patent 7,783,788 B1
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`B. Related Proceedings
`Both parties identify, as a matter involving or related to the ’788
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`patent, Intellectual Ventures I LLC et al v. Hewlett Packard Enterprise Co.,
`Case No. 6:21-cv-00226 (W.D.Tex.)*. Pet. 1; Paper6, 1.
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`C. The '788 Patent
`
`The 788 patent “relates to computing platforms and, more
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`particularly, to virtualization of input/output (I/O) subsystemsthatfacilitate
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`transparent sharing of I/O subsystems among multiple processing systems.”
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`Ex. 1001, 1:11-14. The ’788 patent statesthat “a need in the art exists for
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`moreflexible server infrastructures where additional I/O resources can be
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`deployed as needed to support varying requirements.” /d. at 1:64—66.
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`According to the ’788 patent, to address this need it describes:
`
`the Virtual Compute Environment (VCE)[, which] is a unique
`hardware and software virtualization solution that consolidates
`current data center resourcesto utilize them moreefficiently
`and cost effectively. With virtualization, a physical computer
`or server no longer needs to be provisionedasa static resource
`dedicated to a particular application (or set of applications).
`Instead, a physical machine can be subdividedinto its
`component parts—processor, memory,storage, and network
`resources—andtheseparts can be flexibly arranged by
`virtualization functionality to create purely logical
`combinations of resources. In some implementations, the
`virtualization of I/O access .
`.
`. allows for enhanced
`provisioning and control of I/O bandwidth and I/O subsystem
`access amonga plurality of application servers.
`
`Id. at 2:23-37.
`
`3 Patent Ownerindicates that, on November 30, 2021, the district court
`case wasordered to be transferred to the Northern District of California.
`Paper6, 1
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`Figure 1 of the ’788 patent is reproduced below.
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`Server
`
`102a
`
`
`
`
`Fabric Switch
`Virtual
`
`
`Black
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`Interface
`
`
`Windows
`Fabric
` Virtual
`Driver
`Server
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`60a
`Network
`
`
`Interface
`
`
`
`
`HBA/driver
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`3Leaf
`Networks|HBA/driver||HBAJAriver|
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`Virtual I/OF Nic/sriver|ee
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`Virtual|NiC/river|
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`Block
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`
`
`Linux|Mnteriace|Fabric
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`Server|virtual|Driver
`Nelwork
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`
`Interface
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`HBA/driver
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`
`3Leaf
`Networks HBA/driver
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`Virtual 1/0 Facranver |
`
`
`Fabric Switch
`Virtual
`ff
`Block
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`
`Lunux|Interface|Fabric
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`Server|virtual|Oriver
`Network
`Interface
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`
`
`
`
`NIC/driver
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`Server
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`Fig. 1
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`Figure 1 “is a functional block diagram illustrating an I/O switch fabric
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`interconnecting application servers andvirtual I/O servers.” Jd. at 2:43-45.
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`Application servers 102 are served by twovirtual I/O servers 60, with
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`switches 50 implementing an I/O switch fabric interconnecting the
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`application servers and the virtual I/O servers. Jd. at 3:8-17. “The virtual
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`I/O server 60 provides the storage and external networking needs of the
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`application servers 102 connectedto the I/O switch fabric, allowing
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`IPR2022-00211
`Patent 7,783,788 B1
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`transparent, shared [Host Bus Adapter (HBA) and NetworkInterface
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`Controller (NIC)] access through the multiplexing and associated modules of
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`the virtual I/O server.” Jd. at 3:18-24. Implementations also may be
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`configured with I/O subsystems other than storage and networking systems.
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`Id. at 3:22-24. “[A]pplication servers 102 access these devices through
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`virtual device interfaces,” which operate in connection “with various
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`standard protocol stack modules, intercepting I/O traffic at the device level
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`and forwardingthe I/Otraffic to the virtual I/O server.” Jd. at 3:25-29.
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`D. Illustrative Claim
`
`Ofthe challenged claims of the ’788 patent, claim 1 is an independent
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`claim. The remaining challenged claims dependdirectly from claim 1.
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`Claim 1, reproduced below with Petitioner’s bracketed annotationsinserted,
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`is illustrative.
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`l.
`
`[1-PRE] An apparatus, comprising
`[1a] a memory;
`[1b] one or more processors;
`[1c] an input/output (I/O) fabric interface;
`[1d] an I/O subsystem physical interface;
`[le] I/O subsystem device protocol stack logic operative
`to control data transfer with one or more peripheral systems
`over the I/O subsystem physical interface; and
`[1f-1] virtualization logic encoded in one or more
`tangible media for execution and when executed operable to
`cause the one or more processorsto:
`[1f-2] establish one or morepersistent control
`connectionsto virtual I/O peripheral subsystem interface
`driver modules of one or more application servers;
`[1f-3] transmit I/O peripheral subsystem
`configurations to the one or more application servers
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`over the respective one or morepersistent control
`connections;
`[1f-4] emulate, relative to the one or more
`peripheral systems, the one or more application servers;
`[1f-5] intermediate I/O subsystem traffic between
`the one or more application servers and the one or more
`peripheral systems; and
`[1f-6] controlutilization of resources of the I/O
`subsystem physical interface by the one or more
`application servers according to a configured allocation
`of resources for the I/O subsystem physical interface
`across the one or more application servers.
`Ex. 1001, 21:13-39.
`
`E. Evidence
`
`Petitioner relies on the following references:
`
`Reference
`
`Exhibit No.
`
`US 2005/0120160 A1; filed Oct. 25, 2004; published June 2,|1004
`
`2005 (“Plouffe”) JAMES F. KUROSE & KEITH W. ROSS, COMPUTER
`
`NETWORKING: A TOP-DOWN APPROACH FEATURING THE
`INTERNET (3d ed. 2005) (“Kurose”’)
`
`1006
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`Petitioner also relies on the declaration of Dr. Kevin Jeffay (Ex. 1003)
`
`in support of its arguments. Theparties also rely on other exhibits as
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`discussed below.
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`F. Asserted Grounds of Unpatentability
`
`Petitioner asserts that the challenged claims are unpatentable on the
`
`following grounds’:
`
`4 The ’788 patent was filed before the effective date of the Leahy Smith
`America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011) (“AIA”), and
`we apply the pre-AJA versions of 35 U.S.C. §§ 102 and 103.
`
`6
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`Claim(s) Challenged
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`35 U.S.C. §
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`
`
`Reference(s)/Basis
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`1-3, 6, 7
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`102(a), (e), 103(a)
`
`Plouffe
`
`103(a)
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`Plouffe, Kurose
`
`
`
`
`
`II. ANALYSIS
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`A. Discretion Under 35 U.S.C. § 325(d)
`Patent Ownerarguesthat Plouffe is substantially the same as and
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`cumulative of two references expressly considered by the Examiner and,
`therefore, the Board should discretionarily deny institution under § 325(d).
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`Prelim. Resp. 15-23.
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`Section 325(d) provides that, in determining whetherto institute an
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`inter partes review,“the Director may take into account whether, and reject
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`the petition or request because, the same or substantially the samepriorart
`or arguments previously were presented to the Office.” 35 U.S.C. § 325(d)
`(2018). The Board uses a two-part framework in determining whether to
`
`exercise its discretion under § 325(d), specifically:
`(1) whether the sameor substantially the sameart previously
`was presented to the Office or whether the same or substantially
`the same arguments previously were presented to the Office;
`and
`(2) if either condition of [the] first part of the frameworkis
`satisfied, whether the petitioner has demonstrated that the
`Office erred in a manner material to the patentability of
`challenged claims.
`
`Advanced Bionics, LLC v. MED-EL Elektromedizinische Gerdte GmbH,
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`IPR2019-01469, Paper 6 at 8 (PTAB Feb. 13, 2020) (precedential)
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`(“Advanced Bionics"’).
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`1. Vasilevsky
`
`Patent Ownerargues that Vasilevsky (Ex. 2001) was considered by
`
`the Examiner during prosecution and, “[a]s a continuation-in-part
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`application, Plouffe is substantially the same as and cumulative of
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`Vasilevsky.” Prelim. Resp. 16. Patent Ownerasserts that Figures 1-9 are
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`commonto both references andthat “Plouffe and Vasilevsky share almost
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`the same descriptions” for certain sections, specifically, “Mapping of Virtual
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`Servers,” “Scheduling,” “Memory,” “Input/Output,” “Example I/O
`Function,” “Interrupts and Exceptions,” and “Execution Privilege Levels.”
`Id. at 16-17 (citing Ex. 1004 F§ 185-238; Ex. 2001 J] 89-140). Patent
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`Ownerfurther asserts that Plouffe and Vasilevsky share almost identical
`
`discussions of the architectures shown in Figures 8 and 9.
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`/d. at 17.
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`According to Patent Owner,“(t]he only difference between Plouffe and
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`Vasilevsky is the descriptions associated with FIGs. 10-22.” Jd. Patent
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`Owner, without providing a pinpoint citation to the prosecution history
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`(Ex. 1002), asserts that “[t]he portions of Vasilevsky considered by the
`
`Examinerincludeall the features that the Petition relies upon.” /d. at 18.
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`During prosecution, the Examiner cited Vasilevskyasa tertiary
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`reference in an obviousnessrejection and for a limitation of a dependent
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`claim. Ex. 1002, 144-145. Specifically, the Examiner found that
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`“Vasilevsky discloses the use of wherein the storage system interfaceis a
`
`host bus adapter [p. 16, paragraph 0172] for the purpose of communicating
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`with one or more storage systems for performing storage operations[p. 16,
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`paragraph 0172].” Jd. at 145 (bracketed material in original). Later during
`prosecution, the applicant amended independent claim 1 to add the modifier
`“persistent” to the “control connections”of the “establish” limitation
`(limitation [1f-2]), and addedthe entire “transmit”limitation (limitation
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`[1f-3]), in which the transmitting occurs over the control connections now
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`limited to persistent ones. See id. at 318. The applicant argued that these
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`amendments distinguished the claims over the Examiner’s cited references,
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`id. at 328, and the Examineridentified these “persistent control connections”
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`limitations in the statement ofthe reasons for allowance, id. at 341-342.
`
`The features in Vasilevsky identified by Patent Owneras purportedly
`substantially the same as in Plouffe do not encompassthe particular features
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`in Plouffe that Petitioner applies against the “persistent control connections”
`
`of claim 1. Petitioner contends that the Transmission Control Protocol
`
`(TCP) is a “persistent control connection,” and relies on Plouffe’s
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`paragraphs 108-109 and 118 as disclosing the establishmentofpersistent
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`control connections in the form of TCP connections. Pet. 49-50. Those
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`cited paragraphsare found in Plouffe’s “Management Server” and
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`“Management Agent”sections, respectively. See Ex. 1004 §§ 91, 113.
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`Patent Owner doesnot specifically allege that this material is disclosed in
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`Vasilevsky and we havenotlocated it in Vasilevsky. This difference
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`between Plouffe and Vasilevskyis significant because the amendments of
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`independent claim 1 pertaining to the “persistent control connections” were
`deemed significant to the Examinerin allowing the claim. We determine
`that Plouffe and Vasilevsky are not “substantially the sameart” for purposes
`
`of a Section 325(d) analysis.
`
`2. Tremain
`
`Patent Owner notes that Tremain (Ex. 2002) was applied by the
`
`Examiner as a primary reference during prosecution and argues that Plouffe
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`is substantially the same as and cumulativeof Tremain. Prelim. Resp. 18-
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`19. Patent Owneridentifies several ways in which Tremain and Plouffe
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`purportedly are similar.
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`/d. at 19-22. Patent Owneralso argues that
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`“Plouffe is similarly deficient as Tremain.” Jd. at 22. In that regard, Patent
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`Ownerquotes from the Examiner’s Notice of Allowance, where the
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`Examineridentified the “establish” and “transmit” limitations—those
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`limitations related to the “persistent control connections” amendments
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`discussed above. See id. According to Patent Owner, Plouffe and Tremaine
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`are substantially the same because “Plouffe also fails to disclose or teach
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`these limitations, as discussed below [in Section VILC of the Preliminary
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`Response].” /d. (referring to Prelim. Resp. 34-36). In the referenced
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`section of the Preliminary Response, Patent Ownerargues, regarding the
`“establish”limitation, that “Plouffe’s storage and networkdrivers 821 are
`not a ‘virtual’ interface” and that “Plouffe’s management server 212 does
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`not establish a connection to the storage and network drivers 821.” Jd.
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`at 34-35. Patent Ownerdoesnot, at this stage, dispute Petitioner’s
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`contentions that Plouffe discloses or teaches the “persistent” aspect and the
`“transmit” limitation—the two aspects of claim 1 that were added by
`amendment during prosecution andthat led to the claim’s allowanceover,
`
`inter alia, Tremaine.
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`For reasons discussed below,weare sufficiently persuaded by
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`Petitioner, at this preliminary stage, that Plouffe discloses or suggests the
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`“establish” limitation [1f-2] and the “transmit”limitation [1f-3]. See infra
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`§§ IL.E.3.f and g; Pet. 47-54. Because Patent Ownereffectively concedes
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`that Tremain lacks this information, see Prelim. Resp. 22, we determine that
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`Plouffe and Tremain are not “substantially the sameart” for purposes of a
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`Section 325(d) analysis.
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`For the foregoing reasons, we decline to deny institution under 35
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`U.S.C. § 325(d).
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`B. Principles ofLaw
`Petitioner bears the burden of persuasion to prove unpatentability of
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`the claims challenged in the Petition, and that burden never shifts to Patent
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`Owner. Dynamic Drinkware, LLC v. Nat'l Graphics, Inc., 800 F.3d 1375,
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`1378 (Fed. Cir. 2015).
`
`‘A claim is anticipated only if each and every elementas set forth in
`
`the claim is found, either expressly or inherently described, in a single prior
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`art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
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`631 (Fed. Cir. 1987); see also Finisar Corp. v. DirecTV Group, Inc., 523
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`F.3d 1323, 1334 (Fed. Cir. 2008) (to anticipate a patent claim under 35
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`U.S.C. § 102,“a single prior art reference must expressly or inherently
`
`disclose each claim limitation’’). Moreover, “[bJecause the hallmark of
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`anticipation is prior invention, the prior art reference—in orderto anticipate
`
`under 35 U.S.C. § 102—mustnot only disclose all elements of the claim
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`within the four corners of the document, but must also disclose those
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`elements ‘arranged as in the claim.’” Net MoneyIN, Inc. v. VeriSign, Inc.,
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`545 F.3d 1359, 1369 (Fed. Cir. 2008) (quoting Connell v. Sears, Roebuck &
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`Co., 722 F.2d 1542, 1548 (Fed. Cir. 1983)). Whether a reference anticipates
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`is assessed from the perspective of one of ordinary skill in the art. See
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`Dayco Prods., Inc. v. Total Containment, Inc., 329 F.3d 1358, 1368-69
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`(Fed. Cir. 2003) (“‘[T]he dispositive question regarding anticipation[i]s
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`whetherone skilled in the art would reasonably understand or infer from the
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`[prior art reference’s] teaching’ that every claim element was disclosed in
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`that single reference.” (second andthird alterations in original) (quoting
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`In re Baxter Travenol Labs., 952 F.2d 388, 390 (Fed. Cir. 1991))).
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`Additionally, under the principles of inherency, if the prior art
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`necessarily functions in accordance with, or includes, the claimed
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`limitations, it anticipates. MEHL/Biophile Int’l Corp. v. Milgraum, 192 F.3d
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`1362, 1365 (Fed. Cir. 1999) (citation omitted); In re Cruciferous Sprout
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`Litig., 301 F.3d 1343, 1349-50 (Fed. Cir. 2002).
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`A patent claim is unpatentable under 35 U.S.C. § 103(a)if the
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`differences between the claimed subject matter and the prior art are such that
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`the subject matter, as a whole, would have been obviousat the time the
`
`invention was madeto a person having ordinary skill in the art to which said
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`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
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`(2007). The question of obviousness is resolved on the basis of underlying
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`factual determinations including:
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`(1) the scope and contentofthe priorart;
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`(2) any differences between the claimed subject matter andthepriorart;
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`(3) the level of skill in the art; and (4) any objective evidence of obviousness
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`or non-obviousness. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966).
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`C. The Level ofOrdinary Skill in the Art
`In determining the level of ordinary skill in the art, various factors
`may be considered, including the “type of problems encounteredin the art;
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`prior art solutions to those problems; rapidity with which innovations are
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`made; sophistication of the technology; and educational level of active
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`workersin the field.” Jn re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995)
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`(internal quotation marks andcitation omitted).
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`Petitioner’s declarant, Dr. Jeffay, opines that:
`
`[A person of ordinary skill in the art] in the field of the ’788
`patentat the time ofits filing date (January 18, 2007) would
`haveat least a bachelor’s degree in computerscience or
`electrical engineering, plus two years of experiencein the field
`of networking/communications. Additional educational in the
`fields of computer science and/or electrical engineering, such as
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`a master’s or doctorate degree, may serve as a substitute for
`experiencein thefield.
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`Ex. 1003 { 34; see Pet. 13. Patent Owner, at this stage, does not disagree or
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`propose a different definition of the person of ordinary skill in the art.
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`Prelim. Resp. 2-3.
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`Dr. Jeffay’s definition is consistent with the level of ordinary skill
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`reflected in the prior art references of record. See Okajima v. Bourdeau, 261
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`F.3d 1350, 1355 (Fed. Cir. 2001) (recognizing that the prior art itself may
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`reflect an appropriate level of skill in the art). For purposes ofthis decision,
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`we apply Dr. Jeffay’s definition of the person of ordinary skill in theart.
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`D. Claim Construction
`
`Weapply the same claim construction standard used in district court
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`actions under 35 U.S.C. § 282(b), namely that articulated in Phillips v. AWH
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`Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc). See 37 C.F.R. § 42.100(b)
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`(2021).
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`In applying that standard, claim terms generally are given their
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`ordinary and customary meaning as would have been understood by a person
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`of ordinary skill in the art at the time of the invention and in the context of
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`the entire patent disclosure. Phillips, 415 F.3d at 1312-13. “In determining
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`the meaning ofthe disputed claim limitation, we look principally to the
`intrinsic evidence of record, examining the claim languageitself, the written
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`description, and the prosecutionhistory, if in evidence.” DePuy Spine, Inc.
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`v. Medtronic Sofamor Danek, Inc., 469 F.3d 1005, 1014 (Fed. Cir. 2006)
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`(citing Phillips, 415 F.3d at 1312~17).
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`Petitioner does not propose an explicit claim construction for any
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`term, asserting that every term should be givenits plain and ordinary
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`meaning. Pet. 13.
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`Patent Ownerproposesa construction for the claim term
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`“virtualization logic,” Prelim. Resp. 8-10, and asserts thatall other claim
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`terms should be given their ordinary and customary meaning,id. at 8.
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`Additionally, Patent Ownerstates that, “[w]hile the ’788 patent specification
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`does not recite ‘//O subsystem physical interface,’ ‘I/O subsystem device
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`protocolstack logic,’ and ‘peripheral systems,’ Petitioner explains that the
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`788 patent describes these terms,” and “Patent Ownerapplies Petitioner’s
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`understanding in the analysis.” Jd. at 10 (citing Pet. 43-45).
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`Claim | recites “virtualization logic . .. operable to cause the one or
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`more processors to: establish ...; transmit ...; emulate. ..;
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`intermediate .. .; and control... .” Ex. 1001, 21:21-39.
`Patent Ownercontendsthat“virtualization logic” means“software
`that creates a virtual environment or a logical combination of resources from
`
`one or more physical devices.” Jd. at 9. Patent Owner’s later arguments
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`emphasize and focus on the word “creates.” See id. at 28-33. Patent Owner
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`concedesthat “term ‘virtualization logic’ is not explicitly described in the
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`specification,” but argues that “the entire ’788 patentis directed to
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`“virtualized access to input/output (I/O) subsystems,” where “I/O accessis
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`managed by oneor morevirtual I/O servers.” Jd. at 9 (citing Ex. 1001,
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`Abstract, 1:11—14). Patent Ownerfurtherasserts that “[t]he ’788 patent
`999
`provides a ‘Virtual Compute Environment (VCE),’” whichis a
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`“virtualization solution.” /d. (citing Ex. 1001, 2:23~39).
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`Patent Owner does not explain adequately how theintrinsic or
`
`extrinsic evidence supports construing the claim term as including the
`conceptof“creat[ing]” or what Patent Owner would deem to be required by
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`the act of creating. See id. at 9-10. At this stage, we decline to include a
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`
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`IPR2022-00211
`Patent 7,783,788 Bl
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`“create” limitation and decline to construe “virtualization logic” as Patent
`
`Ownerproposes.
`
`Further, we are unable to discern a material distinction between Patent
`
`Owner’s proposed construction and Petitioner’s implied construction. Patent
`
`Ownerarguesthat the recitations of “emulate” and “control”in claim 1
`
`support its proposed construction of “virtualization logic,” thus implying
`
`that logic performing thoseactionsis “virtualization logic.” See id. at 10
`
`(referring to limitations 1f-4 and 1f-6). Somewhat similarly, Petitioner, in
`
`applying the priorart to the claim language, implies that the recited
`
`“virtualization logic” is the software that, when executed, causes processors
`
`to perform those sameactions. See Pet. 47 (“[T]he managementserver
`
`software and the accompanyinglogic of the I/O system disclose, teach and
`
`suggest the claimed ‘virtualization logic’ that performs the operations of
`limitations [1f-2]-[1f-6].”); id. (Petitioner arguing, for the “virtualization
`logic” recitation, that “Plouffe’s I/O system plus Plouffe’s management
`
`server software, when executed, cause the processors in the general purpose
`
`computer to perform the functions in limitations [1f-2]-[1f-6].).”” We
`
`determine that the term “virtualization logic” does not need an explicit
`
`construction for purposes of deciding whetherto institute an inter partes
`
`review. The parties are encouraged to meet and confer to narrow any issues
`
`remaining regarding the proper construction of “virtualization logic.”
`
`On this record and for purposesofthis decision, we determine that no
`
`claim terms require express construction.
`
`E. The Alleged Anticipation of Claims 1-3, 6, and 7 by Plouffe or
`Obviousness of Claims 1-3, 6, and 7 over Plouffe
`Petitioner alleges that claims 1-3, 6, and 7 of the ’788 patent are
`
`anticipated by or would have been obvious over Plouffe. See Pet. 34-61
`
`15
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`IPR2022-00211
`Patent 7,783,788 Bl
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`(addressing claim 1). Petitioner contends that Plouffe discloses all of the
`
`limitations across two devices and that it would have been obviousto
`
`combine those two devices.
`/d. at 34. Petitioner argues, in the alternative,
`that Plouffe anticipates the challenged claims“if the ‘apparatus’ language of
`the preambleis not limited to a single device including all the items recited
`
`in the claims.” Jd. at 37-38.
`
`Patent Ownerarguesthat “Petitioner’s anticipation groundis deficient
`
`on its face,” that Petitioner has failed to show a motivation to combine
`
`Plouffe’s devices, and that Petitionerhas failed to show that the proposed
`combination discloses or suggests the “virtualization logic,” “establish,” and
`
`“intermediate”limitations. Prelim. Resp. 23-24.
`
`1. Plouffe (Ex. 1004)
`Plouffe pertains to “management of computer systems, and more
`
`particularly, to managementofvirtual resources.” Ex. 1004 7 2. According
`
`to Plouffe, “a system is provided that enables a virtualized environment
`
`suitable for dynamic configuration of components in response to varying
`hardware and policy needs.” Jd. 5.
`
`Figure 2 of Plouffe is reproduced below.
`
`16
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`IPR2022-00211
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`
`|Application|206A|Application|2068|Application| 206C 2200
`
`|Operating|207A|gerating|2078|peratng|207¢|Operating||gerating||peratng|
`
`System
`
`|Yetuat|208A|Yetwat||Yetual||Yetuat||Yetwat||Yetual|
`Hardware
`
`System
`
`01 Distributed Virtual Machine Monitor
`Microkernel|eer||Meee||Meer!|al
`209A|eer||Meer!||Mesoee|
`
`Figure 2 depicts “an example system that may be usedto provide
`managementcontrolof a virtual computing system 200.”° Jd. 4 83.
`
`In one example management system, the management system
`includes a management server 212 (or manager) and one or
`more managementagents (not shown). The management
`server 212 may include an interface through which an
`administrator may configure virtual servers(e.g., virtual
`servers 208A~-208C) and their resources(e.g., nodes 210A—
`210D,storage, network, I/O or other resources).
`
`Id. Management server 212 may be a software program that executes on one
`
`or more physical or virtual computer systems. Jd. J 84. “For instance,
`
`managementserver 212 may include a program executed on a general-
`
`purpose computer system such as, for example, a personal computer (PC),
`
`workstation, or other computer system capable of loading and executing
`
`> Plouffe also identifies element number 201 as the “virtual computing
`system.” Ex. 1004 ¥ 108.
`
`17
`
`
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`IPR2022-00211
`Patent 7,783,788 B1
`
`computer programs.” Jd. “[A] management agent and server program...
`
`collectively cooperates to control configuration of the virtual servers and
`
`Virtual par[t]itions.” Jd. | 82.
`
`According to one embodiment, the managementserver writes
`information to a data store to indicate how each node should be
`configured into virtual servers and virtual partitions. Each
`management agent may then read the data store to determineits
`node’s configuration. The configuration may be, for example,
`pushed to a particular managementagent, pulled from the
`management server by the managementagent, or a combination
`of both techniques. The managementagent may passthis
`information to its microkernel instance within the distributed
`virtual machine monitor (DVMM)program which usesthe
`information to determine the other nodes in its DVMM with
`whomit is tasked to cooperatively execute a set of virtual
`servers.
`
`Td.
`
`The formal version of Figure 9 of the issued Plouffe patent
`(Ex. 1005)° is reproduced below.
`
`6 Petitioner’s groundrelies on the patent application publication of Plouffe,
`whichis Exhibit 1004. Both parties occasionally utilize the formal drawings
`found in the issued Plouffe patent, which is Exhibit 1005. See Pet. 30 n.3;
`Prelim. Resp. 30 n.1.
`
`18
`
`
`
`IPR2022-00211
`Patent 7,783,788 B1
`
`902A
`
`9028
`
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`
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`
`Figure 9 depicts “a block diagram of an example system architecture upon
`
`which a virtual computing system in accordance with one embodimentof
`
`[Plouffe] may be implemented.” Ex. 1004 § 260. “{S]ystem 900 may be
`
`assembled having one or more nodes 901A-901B coupled by a
`
`communication network(e.g., fabric 908),” and the nodes may include
`
`processors 902A—902B and network interfaces 903 A-903B through which
`
`the nodes communicate through the network. Jd. “[FJabric 908 mayinclude
`one or more communication systems 905A~—905D through which nodes and
`other system elements communicate.” Jd. § 261.
`
`System 900 may include one or more I/O systems 906A—906B.
`These I/O systems 906A—906B mayinclude one or more I/O
`modules 912 that perform one or more I/O functions on behalf
`of one or more nodes(e.g., nodes 901A—901B). In one
`embodiment, an I/O system (e.g., system 906A)includes a
`communication system (e.g., system 911) that allows
`
`19
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`
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`IPR2022-00211
`Patent 7,783,788 Bl
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`communication between one or more I/O modules and other
`system entities.
`
`Id. | 265. Storage systems 913 may be coupled to an I/O module ofthe I/O
`
`system. Jd. J 267.
`
`2. The Alleged Anticipation ofIndependent Claim ] and
`Dependent Claims 2, 3, 6, and 7 by Plouffe
`The preamble of independent claim 1 recites “[a]n apparatus,
`
`comprising ....” Ex. 1001, 21:13. Petitioner contendsthat “Plouffe
`disclosesall limitationsofthe claimsalbeit across two devices: Plouffe’s
`
`I/O system ... and Plouffe’s managementserver.” Pet. 34. Forits
`
`obviousnesschallenge, Petitioner contendsthat “[i]t was obviousto integrate
`
`the functionality of Plouffe’s I/O system and managementserverinto a
`
`single device, i.e., into ‘an apparatus.’” Jd. Forits anticipation challenge,
`
`Petitioner contendsthat, “if the ‘apparatus’ language of the preamble is not
`
`limited to a single device including all the items recited in the claims, then
`
`Plouffe anticipates claims 1-3 and 6—7 becauseit discloses all limitations of
`
`those claims.” Pet. 37—38 (citing Ex. 1003 § 101).
`
`Asaninitial matter, Petitioner does not articulate for our
`
`consideration or Patent Owner’s response a claim construction analysis
`
`where “the ‘apparatus’ language of the preambleis not limited to a single
`
`device includingall the items recited in the claims.” See, e.g., Pet. 13
`
`(asserting in the claim construction section that no “specific constructions
`
`are required” andthat, in the Petition, the terms are given their ordinary and
`
`customary meaning). We,in the particular circumstancesofthis case,
`
`decline to engage in a claim construction analysis in the first instance, and
`
`therefore do not reach the issue as to whether the broader construction of the
`
`preambleis correct.
`
`20
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`
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`IPR2022-00211
`Patent 7,783,788 Bl
`
`Further, at this stage of the proceeding, we determinethat Petitioner
`
`has not addressed adequately how Plouffe is anticipatory even if the
`
`preamble is given the broader construction. Petitioner contends that the two
`
`devices in Plouffe collectively disclose all of the limitations. See Pet. 34,
`
`37-38. However, anticipation requires more. As Patent Owner notes
`
`(Prelim. Resp. 24-25), anticipation requires that the prior art reference
`
`disclose all the claim elements arranged as in the claim. See Net MoneyIN,
`
`Inc., 545 F.3d at 1369. Patent Owner argues that Petitioner has not shown
`
`that the elements in Plouffe are “arranged in the same manneras the system
`
`of claim 1.” Prelim. Resp. 24—25. At this stage of the proceeding, the
`
`record more strongly supports Patent Owner’s position. We preliminarily
`
`determine that Petitioner has not explained adequately how the two devices
`
`in Plouffe are disclosed as a single apparatus. We have not madea final
`
`determination on the issue of alleged anticipation.
`
`Because, for the reasons discussed below,Petitioner shows a
`
`reasonable likelihood that it would prevail with respect to at least one of the
`
`challenged claims under the asserted obviousness ground, weincludethis
`
`asserted anticipation groundin the instituted inter partes review. See SAS
`
`Inst. Inc. v. lancu, 138 S. Ct. 1348, 1354, 1359-60 (2018); 37 C.F.R.
`
`§ 42.108(a) (“When instituting inter partes review, the Board will authorize
`
`the review to proceed onall of the challenged claims and onall grounds of
`
`unpatentability asserted for each claim.”’).
`
`3. The Alleged Obviousness of Claim I over Plouffe
`
`a. Reason to Combine
`
`Petitioner contends that “Plouffe disc
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