AOL Inc.v.Coho Licensing, LLC

Patent Trial and Appeal Board

Nov 20, 2014

10228588 (P.T.A.B. Nov. 20, 2014)

Trials@uspto.gov Paper 10
571-272-7822 Entered: November 20, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

AOL INC. and CLOUDERA, INC.,
Petitioner,

v.

COHO LICENSING LLC,
Patent Owner.

____________

Case IPR2014-00771
Patent 8,024,395 B1
__________

Before LINDA M. GAUDETTE, WILLIAM A. CAPP, and
MIRIAM L. QUINN, Administrative Patent Judges.

QUINN, Administrative Patent Judge.

Opinion dissenting-in-part filed by CAPP, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
37 C.F.R. § 42.108
Case IPR2014-00364
Patent 6,289,395 B1

AOL Inc. and Cloudera, Inc. (collectively, “Petitioner”) filed a
Petition (Paper 1, “Pet.”) requesting inter partes review of claims 1–20 of
U.S. Patent No. 8,024,395 B1 (Ex. 1001, “the’395 Patent”). Coho Licensing
LLC (“Coho”) did not file a Patent Owner Preliminary Response.
1
We have
jurisdiction under 35 U.S.C. § 314(a). We conclude that Petitioner has
failed to show a reasonable likelihood of prevailing in challenging these
claims and we decline to institute inter partes review.
I. BACKGROUND
A. The ’395 Patent (Ex. 1001)
The ’395 patent, titled Distributed Processing Multiple Tier Task
Allocation, relates to distributed computer processing in a network
environment. Ex. 1001, 1:28–30. A computer which has been allocated a
distributed processing task portion may reallocate a portion of its task, i.e., a
subtask, to another computer in the network. Id. 1:64–2:6. The roles of
various computers in the network are transitory. Id. at 2:48–52. For
example, a computer initiating distributed processing and allocating task
portions for its task may next have a task or subtask portion allocated to it by
another computer in a succeeding task. Id. The described method(s)
manage the allocation of tasks and subtasks, the tasks and subtasks are
performed, and the results are collated. Id. at 1:64–2:6.
Figure 2 of the ’395 patent is reproduced below.

1
The filing of a Preliminary Response is not required by our rules.
37 C.F.R. § 107(a) (“may file”).
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Figure 2, above, depicts a block diagram of distributed processing
participatory computers 100 connected to each other through network 99.
Id. at 2:3638. Computers 100 are participatory based upon having installed
required software. Id. at 2:36–40. Computer 11 in Figure 2 is depicted in
the role of an allocating computer, signifying initial allocation of task
portions. Id. at 2:4445. Other computers are signified by their roles. Id. at
2:4647.
B. Illustrative Claim
Petitioner challenges claims 1–20. Claims 1, 7, and 12 are
independent claims. Illustrative claim 1 is reproduced below:
1. A computer-implemented method for distributed processing
comprising:
dividing a task into a plurality of task portions,
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wherein said task comprises at least one of divisible data or
divisible executable instruction sets;
an allocating computer transferring at least one said task portion
to a sub-allocating computer;
said sub-allocating computer receiving said task portion;
said sub-allocating computer dividing said task portion into a
plurality of subtask portions;
said sub-allocating computer transferring at least one said
subtask portion to an allocated computer,
said allocated computer receiving said subtask portion;
said allocated computer processing said subtask portion,
whereby producing at least one result;
said allocated computer transferring said result to a pre-
designated results computer;
said results computer receiving and storing said result; and
such that all foregoing transferring occurs by network
connection.
C. The Asserted Grounds of Unpatentability
Petitioner challenges claims 1–20 of the ’395 patent based on the
alleged grounds of unpatentability set forth in the table below, as further
supported by the Declaration of Anthony D. Joseph (Ex. 1005).
Reference(s) or other grounds Basis Claims challenged
Spawn (Ex. 1003)
2
§ 102 1, 2, 4–8, and 10–20
Spawn and Kisor (Ex. 1004)
3
§ 103 3, 5, 6, 9, 10, and 15
Knowledge and Skill of a Person of
Ordinary Skill in the Art
§ 103 1–20

2
Waldspurger et al., Spawn: A Distributed Computational Economy, IEEE
TRANSACTIONS ON SOFTWARE ENGINEERING, 18(2), 103–117 (1992).
3
US Patent No. 6,098,091 (iss. Aug. 1, 2000).
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D. Claim Interpretation
Claims of unexpired patents are construed by applying the broadest
reasonable interpretation, in light of the specification. 37 C.F.R.
§ 42.100(b); see Office Patent Trial Practice Guide, 77 Fed. Reg. 48,764,
48,766 (Aug. 14, 2012).Consistent with the broadest reasonable
construction, claim terms are presumed to have their ordinary and customary
meaning, as understood by a person of ordinary skill in the art, in the context
of the entire patent disclosure. In re Translogic Tech., Inc., 504 F.3d 1249,
1257 (Fed. Cir. 2007).
In its Petition, Petitioner proposed constructions for a multitude of
terms Pet. 12–20. Based on our review of the present record, we do not
discern a need to construe expressly any of the claim terms of the ’395
patent at this time.
II. ANALYSIS
A. Anticipation of Claims 1, 2, 4–8, and 10–20 by Spawn
1. Spawn (Ex. 1003)
Spawn is directed to an open, market-based computational system.
Ex. 1003, Abstract. The Spawn system utilizes idle computational resources
in a distributed network of computer work stations. Id. Applications are
divided into manager (M) and worker (W) modules. Id. at 10–11. An
application manager coordinates the execution of a set of tasks in a
distributed application. Id. It arranges, via communication with the
resource manager, for child workers and sub-managers to perform subtasks.
Id. A root application manager resides at the top-level user’s personal
workstation and serves as the user-interface for distributed computation. Id.
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The resource manager is responsible for initiating and monitoring the
execution of the application task. Id. at 9. The resource manager also serves
as the interface between high-level applications and the rest of the Spawn
system. Id.
Typically, a worker performs computations and reports partial reports
to its immediate manager. Id. at 10. The process of combining and
processing the partial reports is shown in Figure 1, reproduced below. Id.

In Figure 1, above, workers (W) report to their local managers (M)
who, in turn, report to a higher level of management. Ex. 1003, 11. Data
produced by subtask workers is aggregated by upper level managers and,
finally, the root manager presents the results to the user. Id.
2. Analysis of Evidence Presented Regarding Anticipation of Claims
1, 7, and 12 by Spawn
The Petition sets forth each element of claims 1, 7, and 12,
respectively, in a separate paragraph. Pet. 23–30, 34–39, and 41–44. Each
paragraph cites to specific passages in Spawn that purportedly read each
respective element of claim 1 onto a corresponding passage in Spawn. Id.
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The independent claims are directed, generally, to a method of
distributed computing where a data processing task is divided into a first tier
of task portions and where such portions are further divided into a second
tier of task sub-portions. See Ex. 1001, claims 1, 7, and 12. Claim 1 recites
the limitation of the “allocating computer transferring at least one said task
portion to a sub-allocating computer.” Id. at 6:12 (hereinafter the “transfer
limitation”). Claims 7 and 12 recite similar limitations. Id. at 6:4041 (“an
allocating computer allocating said first task portion to a sub-allocating
computer via network connectivity”); 7:78 (“an allocating computer
allocating at least one said task portion to a sub-allocating computer”)
(hereinafter the “allocating limitations”). We are not persuaded that
Petitioner has demonstrated sufficiently that Spawn discloses the transfer
and allocating limitations.
Petitioner relies on Spawn’s top-level application, shown in Figure 1,
as meeting the transfer and allocating limitations. See Pet. 25, 35, 42. The
Petition states that “the top-level node divides a task and allocates the
portions to other nodes, or computers.” Id. at 25. According to Petitioner,
the computer that runs the root application manager is the allocating
computer that transfers the task to a computer running the subtask. Id. at 26
(citing Ex. 1003, 10). The Petition, however, does not show how Spawn
discloses that the subtasks are transferred or allocated to an allocated
computer. At best, the Petition shows how sub-allocating computers report
to the next higher level of management, and eventually to the root manager,
which presents the results to the user. See id. (citing Ex. 1003, Fig. 1).
There is, however, a lack of explanation of how Petitioner contends Spawn
transfers and allocates a task to another computer.
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The passages in Spawn that Petitioner cites to support its assertions
are also inconclusive. Petitioner cites to certain passages in pages 10 and 11
of Spawn, but Petitioner fails to explain how these passages describe the
transfer alleged to occur in Spawn. For example, the Petition alludes to
Spawn’s “root application manager . . . request[ing] the execution of a single
remote task” as being disclosed at page 10. Pet. 25. Requesting the
execution of a task does not show how either transferring or allocating a
subtask occurs in Spawn. No other passages of Spawn are identified in the
Petition as disclosing how Spawn transfers and allocates subtasks as recited.
We have reviewed Petitioner’s evidence and are not persuaded that
Petitioner has demonstrated a reasonable likelihood of establishing that the
limitations of claims 1, 7, and 12, respectively, are disclosed by Spawn.
3. Claims 2, 4–6, 8, 10, 11, and 13–20.
Claims 2 and 4–6 depend, directly or indirectly from claim 1.
Ex. 1001. Claims 8, 10, and 11 depend from claim 7. Id. Claims 13–20
depend from claim 12. Id. With regard to the dependent claims, the Petition
does not present arguments different from those discussed above.
Accordingly, having reviewed Petitioner’s evidence, we are not persuaded
that Petitioner has demonstrated a reasonable likelihood of establishing that
each of the respective limitations of claims 2, 4–6, 8, 10, 11, and 13–20 is
disclosed by Spawn.
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B. Obviousness of Claims 3, 5, 6, 9, 10, and 15 over Spawn
and Kisor
1. Kisor (Ex. 1004)
Kisor is directed to a method and system for assigning tasks to peer-
to-peer computers connected to a network. Ex. 1004, Abstract. Figure 1 of
Kisor is reproduced below.

In Figure 1, above, computer network 100 includes central computer
104 and a plurality of remote computers 108, 112, 116, and 120. Ex. 1004,
3:18–24. Each computer, including both the central computer and the
remote computers, may be coupled to other computers in network 100 via a
variety of communication techniques. Id. at 3:24–33. Central computer 104
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executes management program 144 to coordinate operation of network 100.
Id. at 3:45–46.
Kisor’s central computer coordinates tasks performed by a plurality of
independent remote computers. Id. at 2:21–24. The central computer polls
the remote computers as to their availability and computational capabilities.
Id. at 2:24–27. The central computer then matches tasks to be completed
with remote computers based on the results of the polling and transmits the
task to the assigned remote computers. Id. at 2:27–31.
Kisor discloses that high priority tasks may be duplicated and sent to
multiple remote computers to ensure robustness and prevent system failure.
Id. at 6:20–22. Kisor’s central computer polls remote computers regarding
the time of day when the remote computers will be idle. Id. at 2:19–30.
2. Analysis
Petitioner relies on the same disclosures in Spawn concerning the
transfer and allocating limitations discussed above. Petitioner relies on
Kisor as teaching the additional limitations recited in dependent claims 3, 6,
9, 10, and 15. Further, Petitioner does not show that Kisor makes up for
Spawn’s deficiencies by, at a minimum, teaching the transfer and allocating
limitations. Because we have determined that the Petition fails to show
sufficiently how these limitations are met by Spawn, or by Kisor, we are not
persuaded that there is a reasonable likelihood that Petitioner would prevail
in showing that dependent claims 3, 5, 6, 9, 10, and 15 are obvious over
Spawn and Kisor.
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C. Obviousness Based On Level of Ordinary Skill
Petitioner asserts that all of the challenged claims are obvious based
on the knowledge, skill, and creativity of a person of ordinary skill in the art
at the time of the alleged invention. Pet. 56–57. Petitioner’s contentions are
supported by a series of statements in Dr. Joseph’s declaration regarding
basic computer science techniques that are taught to undergraduate students.
Id., Ex. 1005 ¶¶ 22-30. Dr. Joseph’s declaration, in turn, refers generally to
voluminous excerpts from three computer science treatises. Ex. 1005 ¶ 22
(including Attachments B, D, and E
4,5,6
).
Obviousness is a question of law based on underlying factual findings,
including the differences between the claims and the prior art. See Graham
v. John Deere Co., 383 U.S. 1, 17–18 (1966). A petitioner who does not
state the differences between a challenged claim and the prior art, and relies
instead on the Patent Owner and the Board to determine those differences,
risks having the corresponding ground of obviousness not included for trial
for failing to adequately state a claim for relief. See Liberty Mutual Ins. Co.
v. Progressive Casualty Ins. Co., CBM2012-00003, 2012 WL 9494791, at
*2 (PTAB 2012).
A petition for inter partes review must identify, “in writing and with
particularity, each claim challenged, the grounds on which the challenge to
each claim is based, and the evidence that supports the grounds for the

4
RONALD B. GRAHAM ET AL., CONCRETE MATHEMATICS: A FOUNDATION
FOR COMPUTER SCIENCE (2d ed. 1994).
5
HAL ABELSON ET AL., STRUCTURE AND INTERPRETATION OF COMPUTER
PROGRAMS (2d ed. 1996).
6
GREGORY R. ANDREWS, FOUNDATIONS OF MULTITHREADED, PARALLEL,
AND DISTRIBUTED PROGRAMMING, PART II (2000).
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challenge to each claim.” 35 U.S.C. § 312(a)(3). A petition must include
“[a] full statement of the reasons for the relief requested, including a detailed
explanation of the significance of the evidence” and “where each element of
[each challenged] claim is found in the prior art patents or printed
publications relied upon [and] the relevance of the evidence to the challenge
raised.” 37 C.F.R. §§ 42.22(a)(2), 42.104(b)(4), (5).
Petitioner’s contentions (Pet. 56–57) are conclusory in nature and fail
to satisfy the requirements in our rules that a petition contain a detailed
explanation of the significance of the evidence and identify where each
element of each challenged claim is found in the prior art. See 37 C.F.R. §§
42.22(a)(2), 42.104(b)(4), (5). Accordingly, Petitioner has failed to show a
reasonable likelihood that it would prevail in establishing that claims 1–20
are obvious based solely on the alleged knowledge of someone of ordinary
skill in the art.
III. CONCLUSION
For the foregoing reasons, we deny institution of inter partes review
of the ’395 patent based on all the grounds asserted in the Petition.
IV. ORDER
In consideration of the foregoing, it is hereby:
ORDERED that the Petition is denied and no trial is instituted.

Case IPR2014-00364
Patent 6,289,395 B1

CAPP, Administrative Patent Judge, dissenting-in-part.
I agree with the decision to deny institution of a trial as to claims 1–20
under the third ground of unpatentability based on nothing more than the
knowledge of someone of ordinary skill in the art. I dissent from the
decision to deny institution of a trial on the grounds of anticipation of claims
1, 2, 4–8, and 10–20 over Spawn and obviousness of claims 3, 5, 6, 9, 10,
and 15 over Spawn and Kisor.
A. Anticipation by Spawn
In my opinion, Petitioner has made a sufficient threshold showing that
Spawn discloses each and every limitation of the challenged claims and thus
anticipates them. Lewmar Marine, Inc. v. Barient, Inc., 827 F.2d 744, 747
(Fed. Cir. 1987) (a patent is invalid for anticipation if a single prior art
reference discloses each and every limitation of the claimed invention).
Spawn differs from the invention disclosed in Patent Owner’s
Specification primarily in its use of a Resource Manager to conduct auction
transactions between top level computers that buy distributed computing
time and lower level computers that sell unused computing time. Ex 1003,
Sec. III.B.2. However, this distinction does not defeat a finding of
anticipation. The claims at issue have “comprising” transition phrases and,
as such, do not preclude the use of additional elements that are not claimed.
See Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997)
(comprising transition means that the named elements are essential, but other
elements may be added and still form a construct within the scope of the
claim).
As shown in Figure 1, Spawn discloses a two-tiered system of
distributed computing. Ex. 1003, Fig 1. Although Figure 1 discloses the
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upward reporting chain of a completed task, it is clear from the overall
context of Spawn that the upward reporting chain merely retraces the
downward chain where tasks are delegated from a top-level application.
Spawn is more sophisticated than Patent Owner’s invention in that it
emulates and implements market economy principles to facilitate efficiency
in regard to the allocation of resources.
Spawn is organized as a market economy composed of
interacting buyers and sellers. The commodities in this
economy are computer processing resources; specifically, slices
of CPU time on various types of computer workstations in a
distributed computational environment.
Buyers are users who wish to purchase time in order to perform
some computation. Sellers are users who wish to sell unused,
otherwise-wasted processing time on their computer
workstations. A concrete example of a buyer is a scientist who
wants to run a large, concurrent Monte-Carlo simulation. A
typical seller is a user who is not actively using his personal
workstation.
Ex. 1003, Sec. III.A. While the Resource Manager participates in an auction
process to buy and sell idle computer time, it is neither a buyer nor a seller,
merely an auctioneer. The Resource Manager cannot usurp complete power
and control over the buyer or seller. Id. Sec. III.B. (“An auction follows a
bid-processing strategy defined by the seller who initiated it.”). The
Resource Manager cannot force a buyer to engage in distributed processing.
As I interpret Spawn, the “buyer” retains the option to complete its entire
processing task on its own top-level computer or purchase distributed
processing time through the Spawn system. Similarly, as I understand the
buy-sell auction marketplace of Spawn, the “buyer” decides what it is
willing to pay, such that the Resource Manager cannot force a buyer to pay
more for processing time than the buyer is willing to pay.
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An anticipation analysis is a two-step process. Key Pharms. v Hercon
Labs Corp., 161 F.3d 709, 714 (Fed. Cir. 1998). The first step is to construe
the claims, and the second step is to compare the construed claim to the prior
art. Id. In an IPR, claims of unexpired patents are construed by applying the
broadest reasonable interpretation, in light of the specification. 37 C.F.R.
§ 42.100(b); In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
2007).
Petitioner does not propose a construction for “allocating computer,”
however, Petitioner proposes the following construction for “sub-allocating
computer”: “A computer other than the allocating computer.” Pet. 14.
From this, we can reasonably infer that Petitioner construes “allocating
computer” to be nothing more than “a computer” or “a computer from which
an allocation is made.” In the absence of a trial and the benefit of full
briefing on this issue from both parties, I think the broadest reasonable
construction of “allocating computer,” at this preliminary stage of the case,
should be no narrower than “a user’s computer from which a distributed
processing task originates.” Under such a construction, it is my opinion that
Spawn discloses an “allocating computer” as claimed. While the majority
does not expressly construe “allocating computer,” it appears to me that they
have used a narrower construction of the term in denying the Petition.
The majority faults Petitioner for not detailing “how” the data
processing task is allocated and distributed. The claims, however, only
require “that” the data processing task is allocated and sub-allocated. The
only “how” requirement in the claims is: “all foregoing transferring occurs
by network connection.” Ex. 1001, claim 1. There is no serious question
that, in Spawn, a distributed processing task originating at a top level
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computer is transferred and allocated to computers at two tiers or levels and
that the transfers are via network connection. Given the breadth of the claim
language, I do not believe that a detailed showing of “how” the transfer
occurs is or should be required as part of a threshold showing to institute a
trial in this case.
Without prejudging what the final outcome of the trial would be in
this case, it is my opinion that Petitioner has made a threshold showing
sufficient to warrant institution of a trial on the ground of anticipation over
Spawn.
B. Obviousness over Spawn and Kisor
In my opinion, Petitioner has made a sufficient threshold showing that
the combination of Spawn and Kisor discloses all of the limitations of claims
3, 5, 6, 9, 10, and 15. Kisor discloses distributed computing with features of
redundancy and scheduling, but Kisor lacks a disclosure of distributed
computing at multiple levels of distribution. Spawn discloses distributed
computing at two hierarchical levels of distribution and lacks only a
disclosure of features of redundancy and scheduling. Based on the record
before us, it does not appear that the ’395 patent does anything more than
arrange old elements with each performing the same function it had been
known to perform. Neither does it appear that the combination yields
anything more than one would expect from such an arrangement.
Controlling precedent dictates that, if such is proved at trial in accordance
with the requisite burden of proof, the combination is obvious. KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007); Sakraida v. Ag Pro, Inc., 425
U.S. 273, 282 (1976)
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Without prejudging what the final outcome of the trial would be in
this case, it is my opinion that Petitioner has made a threshold showing
sufficient to warrant institution of a trial on the ground of obviousness over
Spawn and Kisor.
For the foregoing reasons, I respectfully DISSENT.

lp
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For PETITIONER:
David Pekarek Krohn
PERKINS COIE LLP
dpekarekkrohn@perkinscoie.com

For PATENT OWNER:
EUGENIO J. TORRES
Ferraiuoli LLC
etorres@ferraiuoli.com

Kris S. LeFan
Lowe & Associates, P.C.
11400 Olympic Boulevard, Suite 640
Los Angeles, CA 90064