Arista Networks, Inc.v.Cisco Systems, Inc.

Patent Trial and Appeal Board

Feb 16, 2016

10307154 (P.T.A.B. Feb. 16, 2016)

Trials@uspto.gov Paper 7
571-272-7822 Entered: February 16, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

ARISTA NETWORKS, INC.,
Petitioner,

v.

CISCO SYSTEMS, INC.,
Patent Owner.
____________

Case IPR2015-01710
Patent 7,224,668 B1
____________

Before BRYAN F. MOORE, MATTHEW R. CLEMENTS, and
PETER P. CHEN, Administrative Patent Judges.

MOORE, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
35 U.S.C. § 325(d); 37 C.F.R. § 42.108

I. INTRODUCTION
Petitioner, Arista Networks, Inc., filed a Petition for inter partes
review of claims 1–10, 12, 13, 15–28, 30, 31, 33–43, 45–49, 51–64, 66, 67,
and 69–72 of U.S. Patent No. 7,224,668 B1 (Ex. 1101, “the ’668 patent”).
Paper 2 (“Pet.”). Patent Owner, Cisco Systems, Inc., filed a Preliminary
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Response. Paper 6 (“Prelim. Resp.”). Institution of an inter partes review is
authorized by statute when “the information presented in the petition . . . and
any response . . . shows that there is a reasonable likelihood that the
petitioner would prevail with respect to at least 1 of the claims challenged in
the petition.” 35 U.S.C. § 314(a); see 37 C.F.R. § 42.108. Upon
consideration of the Petition and the specific facts of this case, we exercise
our discretion to deny review under 35 U.S.C. § 325(d).
A. Related Matters
The parties state that the ’668 patent is the subject of Cisco Systems,
Inc. v. Arista Networks, Inc., No. 4:14-cv-05343-JSW (N.D. Cal.), filed
December 5, 2014, and ITC Inv. No. 337-TA-945 (Network Devices,
Related Software and Components Thereof (II)), filed December 19, 2014.
Pet. 1; Paper 5 (Patent Owner’s Mandatory Notice). The ’668 patent is also
the subject of IPR2015-00974. Petitioner also has filed petitions requesting
inter partes review of other patents owned by Patent Owner: IPR2015-
00973 (U.S. Patent No. 6,377,577), IPR2015-00975 (U.S. Patent No.
8,051,211), IPR2015-00976 (U.S. Patent No. 7,023,853), IPR2015-00978
(U.S. Patent No. 7,340,597), IPR2015-01049 (U.S. Patent No. 6,377,577),
IPR2015-01050 (U.S. Patent No. 7,023,853), IPR2016-00018 (U.S. Patent
No. 8,051,211), IPR2016-00119 (U.S. Patent No. 7,047,526), IPR2016-
00244 (U.S. Patent No. 7,953,886), IPR2016-00301 (U.S. Patent No.
6,377,577), IPR2016-00303 (U.S. Patent No. 6,377,577), IPR2016-00304
(U.S. Patent No. 7,023,853), IPR2016-00306 (U.S. 7,023,853), IPR2016-
00308 (U.S. Patent No. 7,162,537), and IPR2016-00309 (U.S. Patent No.
7,224,668).
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B. The ’668 Patent
The ’668 patent relates generally to an internetworking device, such
as a router, with improved immunity to Denial of Service (“DoS”) attacks.
Ex. 1101, Abstract. At the time, a router typically separated its functionality
into a data plane, responsible for accepting transit packets at input ports and
routing or switching them to output ports, and a control plane, responsible
for higher layer functions, such as establishing routing tables. Id. at 1:52–
59. Denial of Service attacks were commonly directed at the control plane.
Id. at 1:59–67. Attempts to solve such problems were difficult to administer
and could result in poor performance when control-plane policies were
applied not only to control plane packets, but also to transit packets. Id. at
2:24–3:2.
To address these and other issues, the ’668 patent discloses an
internetworking device whose control plane processes are collectively
arranged as a single addressable port such that all packets intended for the
control plane always pass through this designated port, which thereby
provides the ability to better manage control plane traffic. Id. at 3:42–50. A
set of port services unique to the control plane may be applied to the
aggregate control plane port. Id. at 3:54–56.
Figure 1 is reproduced below.
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Figure 1 is a block diagram of internetworking device 100, such as a
router, comprising control plane port 140, which defines a single access path
between switch engine 130 and control plane 150. Id. at 4:47–67. Line
cards 110 and central switch engine 130 accept packets received on a given
port 120 and route them through to another output port 120. Id. at 5:5–7.
Because all packets destined to control plane 150 pass through central switch
engine 130 prior to being routed to functions 155, central switch engine 130
can be used to implement aggregate control plane protection. Id. at 5:36–42.
Control plane port services determine if a given packet is destined to a
control plane process 150. Id. at 5:56–58. Control plane port 140 may be a
single physical port or may be a virtual address, but either way, it can be
treated as a traditional hardware port to which a full range of traditional port
control features—e.g., rate limitation, access lists, hierarchical queues based
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on priority—can be applied to help protect control plane 150 from a DoS
attack, or to provide other QoS (quality of service). Id. at 5:1–4, 5:66–6:44.
C. Illustrative Claim
Of the challenged claims, claims 1, 19, 37, and 55 are independent. Claim 1
is reproduced below:
1. An internetworking device comprising:
a. a plurality of physical network interface ports, each for
providing a physical connection point to a network for the
internetworking device, the ports being configurable by control
plane processes;
b. port services, for operating on packets entering and
exiting the physical network interface ports, the port services
providing an ability to control and monitor packet flows, as
defined by control plane configurations;
c. a control plane, comprising a plurality of
internetworking control plane processes, the control plane
processes for providing high-level control and configuration of
the ports and the port services;
d. wherein:
i. a control plane port entity provides access to the
collection of control plane processes, so that a set of
control plane port services can be applied thereto; and
ii. the control plane port services operate on
packets received from specific, predetermined physical
ports and destined to the collection of control plane
processes in a way that is independent of the physical
port interfaces and services applied thereto.
Ex. 1001, 9:17–40.
D. Asserted Grounds of Unpatentability
Petitioner contends that claims 1–10, 12, 13, 15–28, 30, 31, 33–43,
45–49, 51–64, 66, 67, and 69–72 of the ’668 patent are unpatentable based
on the following specific grounds (Pet. 14–56):
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References Basis Challenged Claim(s)
Frazier1 and Habraken2 35 U.S.C. § 103
1–6, 8, 9, 10, 12, 13, 15–22,
24–27, 28, 30, 31, 33–40, 42,
43, 45–47, 48, 49, 51–58, 60–
63, 64, 66, 67, and 69–72
Frazier, Habraken, and
Moberg3 35 U.S.C. § 103 7, 23, 41, and 59
II. DISCUSSION
A. Claim Construction
In an inter partes review, we construe claim terms in an unexpired
patent according to their broadest reasonable construction in light of the
specification of the patent in which they appear. 37 C.F.R. § 42.100(b); see
also In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1278–79 (Fed. Cir.
2015), cert. granted sub nom. Cuozzo Speed Techs., LLC v. Lee, 84
U.S.L.W. 3218 (U.S. Jan. 15, 2016) (No. 15-446). 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). An inventor may provide
a meaning for a term that is different from its ordinary meaning by defining

1 U.S. Patent No. 6,246,680 B1, filed June 30, 1997, issued June 12, 2001
(Ex. 1104, “Frazier”). We note that the first named inventor on this
reference is Shimon Muller and the third named inventor is Howard Frazier,
however, Petitioner referred to this reference as “Frazier” so to avoid
confusion we will refer to this reference as “Frazier.”
2 Joe Habraken, PRACTICAL CISCO ROUTERS, Que Corp. (1999) (Ex. 1105
“Habraken”).
3 U.S. Patent No. 6,460,146 B1, filed December, 1998, issued October 1,
2002 (Ex. 1106, “Moberg”).
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the term in the specification with reasonable clarity, deliberateness, and
precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
For purposes of this Decision, we determine that we need not
expressly construe any of the terms for which the parties have proposed
constructions.
B. Asserted Obviousness over Frazier and Habraken
All of the currently challenged claims of the ’668 patent were also
challenged in IPR2015-00974 (“’974 IPR”) in which we did not institute
inter partes review. In the ’974 IPR, we denied Petitioner’s proposed
anticipation ground based on Amara4 (with Habraken5 cited to support the
knowledge of one of ordinary skill). ’974 IPR, Decision on Institution
(Paper 7, “’974 Dec”), 7–14. In that case, we found that Petitioner had not
shown sufficiently either that Amara discloses “a plurality of physical
network interface ports . . . the ports being configurable by control plane
processes,” or that Amara combined with Habraken provides a person of
ordinary skill in the art reason to modify Amara’s “internal applications.”
Id.
The instant Petition advances two obviousness grounds challenging
the same claims as were challenged in the ’974 IPR, each of which
essentially seeks to replace Amara with Frazier. Pet. 14, 56. According to
the Petition, Frazier is proffered because “after the filing of the first petition
[] Arista became aware of Frazier and appreciated its disclosure, particularly
with respect to the CPU port” (Pet. 60). The CPU port disclosure of Frazier

4 US 6,674,743 B1, issued January 6, 2004. IPR974, Ex. 1004.
5 IPR974, Ex. 1010. This is the same reference referred to in this case as
Habraken.
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is not relied on by Petitioner to show the limitation to “a plurality of physical
network interface ports . . . the ports being configurable by control plane
processes.”
Other than the substitution of Frazier for Amara, the art cited in the
present Petition’s obviousness grounds overlaps completely with that
asserted against the claims in the ’974 Petition. Furthermore, certain of
Petitioner’s assertions regarding the disclosures of Frazier are substantially
similar to the disclosure of Amara as characterized by Petitioner in the 974
IPR; in this sense, the arguments made in both cases are substantially
similar. For example, Petitioner states in this case, with citations to its
declarant, that
a POSITA would have been motivated to modify Frazier’s
device 101 an administrator to issue commands to the CPU
161 so that the software processes running on CPU 161
configure the ports coupled to network interface 205. Ex.
1101, ¶ 80. The capability to disable a certain network
interface 205 port, for example, would have been beneficial to
handle a situation in which the link connected to the port
became unreliable. Id. Further, a POSITA would have
understood that the software processes running on CPU 161
would, for example, need to be able to configure whether a
port operates in 10 Mb Ethernet mode, 100 Mb Ethernet
mode, or 10/100 Mb Ethernet mode, or whether a port
operates in half-duplex or full-duplex mode, or whether auto-
negotiation is enabled. Id. Because routers as of the Critical
Date operated in these different modes, it was beneficial for
networking devices to be configurable by the software
processes running on CPU 161 in the manner described. Id.
Doing so in Frazier would likewise provide flexibility and
allow an administrator of Frazier’s device to maintain routing
on a network by bringing the hardware interfaces to life. Ex.
1105, pp. 142-43. Part of that configuration would involve
enabling the interfaces and assigning the addresses to the
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interfaces, and that information would be stored in the
configuration of the device as taught by Habraken. Id.

Pet. 30–31.
Compare these statements with the ’974 IPR, where Petitioner states
through its declarant that
[, i]n particular, a POSITA would have understood that the
internal applications 230 would be able to enable or disable any
given physical interface port, set a protocol for any given
physical interface port, or set the address of any given physical
interface port. See, e.g., Habraken, page 132-134. The
capability to disable a certain physical interface port, for
example, would have been necessary to handle a situation in
which the link connected to the port became unreliable.
Further, a POSITA would have understood that the internal
applications 230 would, for example, need to be able to
configure whether a port operates in 10 Mb Ethernet mode, 100
Mb Ethernet mode, or 10/100 Mb Ethernet mode, or whether a
port operates in half-duplex or full-duplex mode, or whether
auto-negotiation is enabled. Because routers as of the Critical
Date operated in these different modes, it was critical for
networking devices to be configurable by the internal
applications in the manner described. Accordingly, a POSITA
would have understood that Amara describes the interface
ports 202-208 being configurable by the internal applications
230 and, when appropriate, the internal applications 230
configuring the ports 202-206.

’974 IPR, Ex. 1002 ¶ 46. The italicized portion from both cases is nearly
identical with Frazier’s “software processes running on CPU 161” replacing
Amara’s “internal applications 230.”
The ground we analyzed in detail in the ’974 IPR was an anticipation
ground, not obviousness, however, we did analyze therein the combination
of Habraken and Amara. We found, in the ’974 Decision, “[w]hile this
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passage [on pages 132 to 134 of Habraken] describes configuring a port, it is
not clear what aspect of the Cisco router is providing the Setup dialog.
Nothing, for example, attributes the Setup dialog to “control plane
processes” or “internal applications” or the like of the Cisco router.” ’974
Dec. 11.
Petitioner also presented an obviousness ground based on Amara and
Habraken, which was not stated with specificity. “The [’974 IPR] Petition,
therefore, fails to identify with sufficient specificity the differences between
the claimed invention and the prior art.” ’974 Dec. 17. While the current
Petition apparently attempts to provide such specificity (See Pet. 28–31),
Patent Owner, nonetheless, has been forced to address a similar ground with
similar arguments in two separate Petitions. Prelim Resp. 9, 10; ’974
Prelim. Resp. 22–25, 49–52; see Biodelivery Sciences International, Inc. v.
RB Pharmaceuticals Limited, Case IPR2014-00998, slip op. at 7–8 (PTAB
December 19, 2014) (Paper 12) (determining, in exercising § 325(d)
discretion with respect to a ground in the second-filed petition that was
based on a reference not formally included in the ground from the first-filed
petition and which the prior DI merely acknowledged as a citation in a claim
chart, that the ground in the second-filed petition presented was “the same
arguments and relies substantially on the same prior art that the same
Petitioner relied upon in its earlier Petition regarding the same claims of the
same patent”). Allowing similar, serial challenges to the same patent, by the
same petitioner, risks harassment of patent owners and frustration of
Congress’s intent in enacting the Leahy-Smith America Invents Act. See
H.R. Rep. No. 112-98, pt.1, at 48 (2011) (“While this amendment is
intended to remove current disincentives to current administrative processes,
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the changes made by it are not to be used as tools for harassment or a means
to prevent market entry through repeated litigation and administrative
attacks on the validity of a patent. Doing so would frustrate the purpose of
the section as providing quick and cost effective alternatives to litigation.”).
For these reasons, we conclude that the instant Petition advances “the same
or substantially the same prior art or arguments [that] previously were
presented to the Office” in the ’974 IPR, and, therefore, we have discretion
under § 325(d) to deny institution of the obviousness ground based on
Frazier and Habraken.
Our discretion to deny these grounds is further guided by additional
facts. Petitioner does not contend specifically that the newly-cited
references were not known or available to it at the time it filed the ’974 IPR.
Rather, Petitioner states only that it “became aware of Frazier and
appreciated its disclosure” after the filing of the ’974 IPR. See Unilever,
Inc. v. Procter & Gamble Co., Case IPR2014-00506, slip op. at 6 (PTAB
July 7, 2014) (Paper 17) (considering, in exercising § 325(d) discretion,
whether new references were previously known).
For the reasons above, we, therefore, exercise our discretion under
§ 325(d) to deny institution of inter partes review on the obviousness
challenge based on Frazier and Habraken to claims 1–6, 8, 9, 10, 12, 13, 15–
22, 24–27, 28, 30, 31, 33–40, 42, 43, 45–47, 48, 49, 51–58, 60–63, 64, 66,
67, and 69–72.
B. Asserted Obviousness over Frazier, Habraken, and Moberg
Petitioner argues that dependent claims 7, 23, 41, and 59 are
unpatentable under 35 U.S.C. § 103(a) as obvious over Frazier, Habraken,
and Moberg. In this ground, Petitioner relies upon its analysis of Frazier and
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Habraken with respect to the independent claims from which these claims
depend, and alleges that the additional reference—Moberg—teaches the
additional limitation(s) recited in the dependent claims listed above. Pet.
56–60.
As discussed above, we exercise our discretion, under § 325(d), to
find that this Petition presents the same argument as to the disclosure of “a
plurality of physical network interface ports . . . the ports being configurable
by control plane processes,” as recited in each of the respective independent
claims from which these claims depend. Petitioner does not allege that
Moberg teaches or suggests this limitation. Pet. 56–60. Additionally, in the
’974 IPR we declined to institute on a ground that dependent claims 7, 23,
41, and 59 were obvious over Amara, Habraken, and Moberg. ’974 Dec.
17–18. Because we exercise our discretion not to institute on the underlying
independent claims and because this ground is substantially similar to a
ground presented in Petition in the ’974 IPR, we exercise our discretion not
to institute on these challenged dependent claims.
III. CONCLUSION
For the foregoing reasons, we determine that the Petition presents
substantially the same art and arguments as the Petition in the ’974 IPR, and,
taking into account the particular facts of this case, we exercise our
discretion to deny institution of review under 35 U.S.C. § 325(d).
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IV. ORDER
Accordingly, it is
ORDERED that that the Petition is DENIED as to all challenged
claims of the ’668 patent, and no trial is instituted.

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PETITIONER:
Walter K. Renner
Kevin E. Greene
David J. Goren
FISH & RICHARDSON P.C.
IPR40963-0006IP2@fr.com
axf@fr.com

PATENT OWNER:
Lori A. Gordon
Robert G. Sterne
Daniel S. Block
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
lgordon-PTAB@skgf.com
rsterne-PTAB@skgf.com
dblock-PTAB@skgf.com