AOL Inc.v.Coho Licensing, LLC

Patent Trial and Appeal Board

Nov 20, 2014

13422411 (P.T.A.B. Nov. 20, 2014)

Trials@uspto.gov Paper 6
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 IPR2014-00966
Patent 8,667,065 B1
__________

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

QUINN, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
37 C.F.R. § 42.108

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AOL Inc. and Cloudera, Inc. (collectively, “Petitioner”) filed a
Petition (Paper 1, “Pet.”) requesting inter partes review of claims 1–10 of
U.S. Patent No. 8,667,065 B1 (Ex. 1001, “the ’065 patent”). Coho
Licensing LLC (“Coho”) did not file a Patent Owner Preliminary Response.
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 ’065 Patent (Ex. 1001)
The ’065 patent, titled “Distributed Processing Multiple-Tier Task
Allocation,” relates to distributed computer processing in a networked
environment. Ex. 1001, 1:33–34. 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. at 2:5–11. The roles of
various computers in the network are transitory. Id. at 2:56–60. 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 2:5–14.
Figure 2 of the ’065 patent is reproduced below.
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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 2:4446. Computers 100 are participatory based upon having installed
required software. Id. at 2:46–48. Computer 11 in Figure 2 is depicted in
the role of an allocating computer, signifying initial allocation of task
portions. Other computers are signified by their roles. Id. at 2:5253.
B. Illustrative Claim
Petitioner challenges claims 1–10. Claim 1, reproduced below with
paragraph indentation added, is the sole independent claim:
1. A system for distributed processing, comprising in
combination:
an allocating computing device including
a first memory and
a first processor;
a sub-allocating computing device including
a second memory and
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a second processor;
an allocated computing device including
a third memory and
a third processor;
a results computing device including
a fourth memory and
a fourth processor;
a first set of instructions stored in the first memory of the
allocating computing device, the first set of instructions,
when executed by the first processor, dividing a task into a
plurality of task portions, at least one first task portion
comprising further divisible portions, hereinafter referred to
as subtask portions;
a second set of instructions stored in the first memory of the
allocating computing device, the second set of instructions,
when executed by the first processor, allocating said first
task portion to the sub-allocating computing device via
network connectivity;
a third set of instructions stored in the second memory of the
sub-allocating computing device that, when executed by the
second processor, are adapted to await receipt of the first
task portion, divide the first task portion into a plurality of
subtask portions, and allocates at least one said subtask
portion to the allocated computing device via network
connectivity;
a fourth set of instructions stored in the third memory of the
allocated computing device, the fourth set of instructions,
when executed by the third processor, are adapted to receive
the subtask portion, process the subtask portion, produce at
least one result related to the subtask portion, and
transferring the result to the results computing device; and
a fifth set of instructions stored in the fourth memory of the
results computing device, the fifth set of instructions, when
executed by the fourth processor, awaiting receipt of the
results transferred from the allocated computing device as
well as other results related to the first task, and collating all
of the received results.
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C. The Asserted Grounds of Unpatentability
Petitioner challenges claims 1–10 of the ’065 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. 1007).
Reference(s) or other grounds Basis Claims challenged
Spawn
1
§ 102 1, 2, and 4–10
Spawn and Kisor
2
§ 103 3, 4, and 6
Knowledge and Skill of a Person of
Ordinary Skill in the Art
§ 103 1–10
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. 48,756,
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 proposes constructions for a multitude of
terms. Pet. 10–16. Petitioner does not argue or suggest that the construction
for these terms differs from the ordinary and customary meaning that would
be assigned to them by someone of ordinary skill in the art in the context of

1
Waldspurger et al., Spawn: A Distributed Computational Economy, IEEE
TRANSACTIONS ON SOFTWARE ENGINEERING, 18(2), 103-117 (1992) (Ex.
1005).
2
U.S. Patent No. 6,098,091 (Aug. 1, 2000) (Ex. 1006).
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the entire patent disclosure. Translogic, 504 F.3d at 1257. We note that
because Patent Owner did not file a Preliminary Response, we do not know
at this time whether Patent Owner disputes the constructions Petitioner has
proposed. Nevertheless, based on our review of the present record, we do
not discern a need to construe expressly any of the claim terms of the ’065
patent at this time.
II. ANALYSIS
A. Anticipation by Spawn
1. Spawn (Ex. 1005)
Spawn is directed to an open, market-based computational system.
Ex. 1005, 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.
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
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In Figure 1, above, workers (W) report to their local managers (M)
who, in turn, report to a higher level of management. Ex. 1005, 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 by Spawn
The Petition sets forth each element of claim 1, in a separate
paragraph. Pet. 19–26. Each paragraph cites to specific passages in Spawn
that purportedly read each respective element of claim 1 onto a
corresponding passage in Spawn. Id. Claim 1 is directed, generally, to a
system for distributed computer processing 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, claim 1. In
particular, claim 1 recites that “a second set of instructions . . . when
executed by the first processor, allocat[es] said first task portion to the sub-
allocating computing device via network connectivity.” Id. at 6:1822.
Claim 1 further recites “a third set of instructions . . . that, when executed by
the second processor, . . . allocate[s] at least one said subtask portion to the
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allocated computing device via network connectivity.” Id. at 6:2329.
These limitations require that an allocating computing device allocates a task
to a sub-allocating computing device, and that the sub-allocating computing
device allocates a subtask to the allocated computer, all via network
connectivity. Petitioner relies on the “top-level application” computer of
Spawn, depicted in Figure 1, as meeting the allocating computing device
limitation. See Pet. 21 (citing Ex. 1005, 11, Fig. 1). For the sub-allocating
computing device, Petitioner points to the “application subtask” depicted in
Figure 1. See Pet. 22.
Petitioner relies on the Declaration of Dr. Anthony D. Joseph to
support the argument that Spawn’s top-level application runs on a computer
necessarily including instructions to perform splitting and allocating task
portions. See Pet. 21 (citing Ex. 1007, 3132). Neither the Petition nor the
proffered pages of Dr. Joseph’s Declaration describe how Spawn discloses
that a computer running a top-level application (or the other depicted
“subtask application” or “subsubtask application”) performs allocating of
task portions as argued in the Petition. Having failed to identify sufficiently
the facts regarding how Spawn discloses allocating as recited, we are not
persuaded that Petitioner has made the requisite showing. To be sure, Figure
1 of Spawn depicts how a subtask reports to the next higher level of
management, and eventually to the root manager. Ex. 1005, Fig. 1. No
allocations of tasks, however, are depicted in that Figure.
The passages in Spawn relied on to support Petitioner’s assertions are
inconclusive. For example, for the limitation concerning the second set of
instructions, Petitioner relies on page 10 of Spawn as disclosing that “the
‘top-level application’ computer running the root application manager . . .
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transfers one of those task portions to a sub-allocating computing device –
i.e., the computer running the ‘application subtask.’” Pet. 22. Page 10 of
Spawn, at best, describes that the root application manager “requests the
execution of a single remote task.” Ex. 1005, 10. Requesting the execution
of a task, however, does not show that a computer allocates a task to another
computer. In short, the Petition and the citations to Dr. Joseph’s Declaration
fail to explain how Spawn discloses that computer instructions executed at
one computer allocate a task to another computer.
Furthermore, we are not persuaded that Petitioner has made a
sufficient showing with regard to the recited limitations that require storing
specific instructions in the memory of the recited computers. Regarding the
“first set of instructions limitation,” Petitioner merely states that the top-
level application computer necessarily includes instructions stored in
memory. See Pet. 21 (citing Ex. 1007, 3132). That statement is
conclusory, lacking sufficient detail regarding which specific set of
instructions is stored in which specified memory of which specified
computer. Dr. Joseph’s Declaration is also insufficient in this regard,
because it is too generic and the cited portions of Spawn are not explained.
For example, the Declaration states that “Spawn discloses a multi-tiered
distributed processing scheme, and all disclosed operations necessarily
require instructions stored in memory to be executed by a processor.” Ex.
1007, 32. This is not enough. A computer may necessarily include a
memory and a processor, but it may not necessarily store specific programs,
especially in a distributed processing environment, such as that taught in
Spawn. In short, we are not persuaded that the Petition has made a sufficient
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showing of either express or inherent disclosure that all of the recited sets of
instructions are stored in the specific memories recited in claim 1.
As for the claims that depend from claim 1 (claims 2, and 410),
Petitioner has not provided any further arguments or evidence regarding the
above discussed limitation. Therefore, having reviewed Petitioner’s
evidence, we are not persuaded that Petitioner has demonstrated a reasonable
likelihood of establishing that the limitations of claims 1, 2, and 410 are
met by Spawn.
B. Obviousness over Spawn and Kisor
1. Kisor (Ex. 1006)
Kisor is directed to a method and system for assigning tasks to peer-
to-peer computers connected to a network. Ex. 1006, Abstract. Figure 1 of
Kisor is reproduced below.
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In Figure 1, the computer network 100 includes central computer 104
and a plurality of remote computers 108, 112, 116, and 120. Ex. 1006,
3:18–24. Each computer, including both the central computer and the
remote computer, may be coupled to other computers in the network via a
variety of communication techniques. Id. at 3:24–33. Central computer 104
executes management program 144 to coordinate operation of the network.
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
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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. Claims 3, 4, and 6.
In support of the obviousness challenge as to claims 3, 4, and 6,
Petitioner relies on the disclosures of Spawn discussed above with regard to
independent claim 1. Petitioner relies on Kisor as teaching additional
limitations recited in those dependent claims. Further, Petitioner does not
show that Kisor makes up for Spawn’s deficiencies discussed above.
Because we have determined that the Petition fails to show sufficiently how
Spawn discloses all the limitations of claim 1, we are not persuaded that
there is a reasonable likelihood that Petitioner would prevail in showing that
dependent claims 3, 4, and 6 are obvious over Spawn and Kisor.

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. 35–36. 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. 1007, 7–16 (¶¶ 21–30). Dr. Joseph’s Declaration, in turn, refers
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generally to voluminous excerpts from three computer science treatises. Ex.
1007, 8–9, 13-14 (¶¶ 22, 26) (including Attachments B, D, and E.
3,4,5
).
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., No. 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
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).

3
RONALD L. GRAHAM, ET AL., CONCRETE MATHEMATICS: A FOUNDATION
FOR COMPUTER SCIENCE (2d ed. 1994).
4
HAROLD ABELSON, ET AL., STRUCTURE AND INTERPRETATION OF COMPUTER
PROGRAMS (2d ed. 1996).
5
GREGORY R. ANDREWS., FOUNDATIONS OF MILTITHREADED, PARALLEL,
AND DISTRIBUTED PROGRAMMING (2000), Part II.
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Petitioner devotes approximately one and one-half pages to this
grounds of unpatentability in its Petition. Pet. 35–36. Petitioner’s
contentions (Pet. 35–36) 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. 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 1–10 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 ’065 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.

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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