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

Patent Trial and Appeal Board

Feb 29, 2016

09108071 (P.T.A.B. Feb. 29, 2016)

Trials@uspto.gov Paper 11
571-272-7822 Entered: February 29, 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 IPR2015-00973
Patent 6,377,577 B1
____________

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

MOORE, Administrative Patent Judge.

DECISION

Request for Rehearing
37 C.F.R. § 42.71

I. INTRODUCTION
Petitioner, Arista Networks, Inc., filed a Request for Rehearing (Paper
10, “Req. Reh’g”) of our Decision denying inter partes review (Paper 9,
“Dec.”) of claims 1, 2, 5, 7–10, 12–16, 18–22, 25, and 28–31 of U.S. Patent
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No. 6,377,577 B1 (Ex. 1001, “the ’577 patent”). In the Decision, we
determined the information presented in the Petition (Paper 6, “Corr. Pet.”)
does not show sufficiently that there is a reasonable likelihood Petitioner
would prevail at trial with respect to at least one claim of the ’577 patent.
Accordingly, we denied the Petition and declined to institute a trial. In
making that decision, we considered information presented in a Preliminary
Response (Paper 8, “Prelim. Resp.”) filed by Patent Owner, Cisco Systems,
Inc.
For the reasons that follow, Petitioner’s request for Rehearing is
denied and institution of an inter partes review is not ordered.
II. ANALYSIS
When considering a request for rehearing of a decision on a petition,
the Board reviews the decision for an abuse of discretion. 37 C.F.R.
§ 42.71(c). An abuse of discretion may arise if a decision is based on an
erroneous interpretation of law, if a factual finding is not supported by
substantial evidence, or if an unreasonable judgment is made in weighing
relevant factors. Star Fruits S.N.C. v. U.S., 393 F.3d 1277, 1281 (Fed. Cir.
2005); Arnold P’ship v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004); In re
Gartside, 203 F.3d 1305, 1315–16 (Fed. Cir. 2000). The party requesting
rehearing has the burden of showing that the decision should be modified,
and “[t]he request must specifically identify all matters the party believes the
Board misapprehended or overlooked.” 37 C.F.R. § 42.71(d).
With respect to all the challenges, Petitioner contends our Decision
was based on a factual finding not supported by substantial evidence. See
generally, Req. Reh’g. We address Petitioner’s contention in detail below.
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A. Introduction
In its Petition, Petitioner challenged the patentability of claims 1, 2, 5,
7–10, 12–16, 18–22, 25, and 28–31 of the ’577 patent as unpatentable based
on the following specific grounds (Corr. Pet. 9–41):
References Basis Challenged Claim(s)
Hendel1 35 U.S.C. § 102 1, 2, 5, 7–10, 12–16, 18–22, 25, 28, 29, 31
Hendel and Muller2 35 U.S.C. § 103 7, 22, 25, 28, 29, 31
Hendel, Muller, “and
knowledge of one of
ordinary skill”
35 U.S.C. § 103 30
Hendel and Elliot3 35 U.S.C. § 103 25

In the Decision, we determined the information presented in the Petition
does not show sufficiently that there is a reasonable likelihood Petitioner
would prevail at trial with respect to at least one claim of the ’577 patent.
Dec. 12. Specifically, in our Decision, we found that Hendel fails to
disclose “generating an access result in response to said at least one selected
match.” Dec. 10–12. Petitioner contends that we overlooked its contentions
with respect to Hendel’s disclosure of matching for quality of service. Req.
Reh’g 2–3.

1 U.S. Patent No. 6,081,522, filed June 30, 1997, issued June 27, 2000 (Ex.
1007, “Hendel”).
2 U.S. Patent No. 5,938,736, filed June 30, 1997, issued Aug. 17, 1999 (Ex.
1008, “Muller”).
3 U.S. Patent No. 5,867,495, filed Nov. 18, 1996, issued Feb. 2, 1999 (Ex.
1019, “Elliot”).
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B. Claim Construction
In our Decision, we determined the broadest reasonable construction
of “access control” to include “restrictions or modifications on the intended
destination address to which a packet is to be transmitted.” Dec. 8. This
determination was based, in part, on the following text from the
Specification:
[T]he invention can be used to augment or override routing
decisions otherwise made by the router, using the access control
element 120. In addition to specifying the packet 130 is to be
dropped or forwarded to the higher-level processor, the access
control element 120 can alter the output interface, which was
selected by the routing element 110, to another selected output
interface. The invention can thus be used to implement QOS
(quality of service) policies and other administrative policies.

Ex. 1001, 6:10–18.
As an initial matter, upon reviewing the Decision for the purpose of
rehearing, we determine that the phrase “modifications on the intended
destination address to which a packet is to be transmitted” introduces
uncertainly into the construction.4 The construction in the Decision appears
to conflate the “destination” of a packet with the output interface to which a
packet is directed. The Specification does not describe, however, modifying
the “destination” of the packet; the only “modification” on how the packet is
routed specifically described in the Specification is when “the access control
element 120 . . . [alters] the output interface, which was selected by the
routing element 110, to another selected output interface.” Ex. 1001, 6:13–

4 Petitioner does not seek rehearing of the claim construction (Reh’g Req. 4,
n. 1) but our analysis requires that we revisit the claim construction
determination from the Decision.
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16; Reh’g Req. 4–5. Thus, we modify our construction of “access control”
to mean only restrictions on the transmission of a packet or alteration of a
selected output interface for the packet.
C. Quality of Service Argument
As noted above, in our Decision, we found that Hendel fails to
disclose “generating an access result in response to said at least one selected
match,” as recited in claim 1, the only independent claim challenged. Dec.
10–12. We further determined that “Petitioner has not shown that the
filtering decision is done ‘in response to [] at least one selected match’ as
required by claim 1.” Id. at 11. We also determined that “[n]either
Petitioner, nor Petitioner’s Declarant, has tied an actual match in Hendel to a
decision whether to forward the packet or make some modification to the
intended transmission of the packet.” Id.
In making the above determination, we focused on, among other
things, the “filtering” aspect of Hendel, which Petitioner emphasized. Id.
However, as Petitioner argues on rehearing, Petitioner also mentioned
quality of service, stating “Hendel’s L3/L4 lookups to the forwarding
memory provide access control capability such as . . . quality of service
functionality (Ex. 1007, at 7:5–6, 14:50–54)[.]” Corr. Pet. 15; Reh’g Req. 6.
Thus, on rehearing, we must determine whether the Petition sufficiently
shows that Hendel discloses “generating an access result in response to said
at least one selected match,” in light of the Petition’s discussion concerning
quality of service. In light of our revised claim construction, we must also
determine whether the quality of service disclosure advanced in the
Rehearing Request discloses an “access result” that indicates a restriction on
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the transmission of a packet or alteration of a selected output interface for
the packet.
Petitioner argues that “Hendel makes clear that quality of service
functionality—i.e., what must be done to forward the packet—is done upon
a positive match to an entry in an associative memory.” Reh’g Req. 7.
Petitioner suggests this is all that is needed to disclose the element of claim 1
at issue. Id. at 6. Specifically, Petitioner suggests that “the Decision
embraces the ’577 patent’s clear contemplation of QoS-type routing, in
which a packet’s transmission is modified so as to guarantee a certain level
of network performance.” Id. However, as noted above, the construction
we are applying does not encompass any and all “QoS type routing,” or any
and all “modifications” to transmission, but specifically a restriction on
transmission or an alteration of a selected output port.
Petitioner argues that forwarding a packet in a way that takes into
account quality of service meets the claim limitations. Reh’g Req. 5–6. For
example, Petitioner states that “Hendel implements ‘quality of service’”
(Reh’g Req. 6) and “Hendel describes QoS within at least the various
sections cited within the Petition” (id. at 5). Petitioner cites the following
quotations from Hendel: 1) “ . . . determinations based on examining the
packet may be necessary, such as priority and quality of service (QoS)
factors such as bandwidth reservation” (Ex. 1007, 7:4–6); 2) “Another
example might be forcing a match on a particular source within a class type.
This might occur when the operator might want to provide packets coming
from a particular server with a high priority regardless of the destination or
layer 4 application” (id. at 12:66–13:3); and 3) “In this way, the multi-layer
network element 12 may add additional functionality above and beyond
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normal layer 2 bridges by allowing quality of service factors to be applied to
layer 2 bridging or routing within the same subnet or VLAN” (id. at 14:50–
54). Reh’g Req. 5.
None of Petitioner’s citations show that a match results in a packet not
being forwarded (restriction) or that an output port is selected and altered.
Rather, these citations generally state that priority can be given to certain
packets and quality of service can be applied to layer 2 routing. Thus, we
are not persuaded that Petitioner’s citation to quality of service in general
discloses “generating an access result in response to said at least one
selected match.”
Additionally, Petitioner cites to its Declarant Dr. Chao. Reh’g Req. 6
(citing Ex. 1003 ¶ 31). Petitioner’s Declarant states without citation that “a
switch may modify the forwarding decision to account for network policies
such as quality of service determinations. That is, a packet may be destined
for a certain MAC address and port on the switch, but the switch may
determine that the packet can be transmitted more reliably through another
port, and so it will change the destination port for that packet.” Ex. 1003
¶ 31. Petitioner’s Declarant’s testimony is conclusory and unsupported by
evidence, and, therefore, we give that testimony no weight.
At pages 8–10 of the Rehearing Request, Petitioner again argues that
the disclosure of quality of service, in general, is an indication that Hendel
discloses “access control” as required by the claims. Reh’g Req. 8–10. For
the reasons discussed above, we are not persuaded by these additional
arguments.
For the reasons stated above, we determine Petitioner has not shown
sufficiently that Hendel discloses all of the limitations of independent claim
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1. Accordingly, the information presented does not show a reasonable
likelihood that Petitioner would prevail in showing that independent claim 1,
or claims 2, 5, 7–10, 12–16, 18–22, 25, and 28-31 that depend therefrom, are
anticipated by Hendel. Additionally, for the obviousness grounds, Petitioner
does not rely on Muller, Elliot, or the knowledge of one of ordinary skill to
teach or suggest this limitation or otherwise cure the deficiency in Hendel.
Thus, we determine that Petitioner has not demonstrated that there is a
reasonable likelihood that it would prevail with respect to the ground that
claims 7, 22, 25, and 28–31 are unpatentable.
D. “Matching Entry” Argument
Petitioner also argues that the Board “misapprehended or overlooked
Hendel’s undisputed teaching that a ‘matching entry’ in the associative
memory of Hendel (‘forwarding memory 40’) provides a destination to
which a packet should be directed, and that Hendel’s packet redirection is
used to implement ‘quality of service’ policies.” Reh’g Req. 7. Based on
the amended construction, this argument is moot. Our revised construction
no longer encompasses a change in the intended “destination.” Nonetheless,
to the extent that Petitioner is referring to directing the packet to a new
output port, we address the Rehearing Request’s statement that Hendel
“determin[es] a revised ‘destination’ for a packet.” See Reh’g Req. 7–8
(citing Ex. 1007, at 7:5–6 (quoted above), 14:50–54 (quoted above), 8:55–65
(“forward the packet to the appropriate destination(s)”), 11:39–43 (“If a
match exists . . . input port 50i [is instructed] what to do with the packet”)).
As noted in the Decision (Dec. 11), the citations provided by Petitioner
suggest only that the “appropriate” destination is determined, not that a
“revised” destination is provided. The Decision did not overlook or
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misapprehend Petitioner’s arguments or evidence. We fully considered
Petitioner’s position and determined that the evidence on which Petitioner
relied was not persuasive in establishing a reasonable likelihood that claim 1
is unpatentable over Hendel. A request for rehearing is not an opportunity
merely to disagree with the panel’s assessment of the arguments or weighing
of the evidence. It is not an abuse of discretion to have performed an
analysis or reached a conclusion with which Petitioner disagrees, and mere
disagreement with the Board’s analysis or conclusion is not a proper basis
for rehearing. We are not persuaded that this determination was an abuse of
our discretion. 37 C.F.R. § 42.71(c) (“When rehearing a decision on
petition, a panel will review the decision for an abuse of discretion.”) Thus,
we are not persuaded by this argument.
E. Considerations Under Amended Construction
Finally, as to the amended construction, claim 13 specifically recites
“said routing decision includes determining an output interface for said
packet” and claims 20–21 recite a “preliminary routing decision includes
determining at least one output interface for said packet.” Petitioner argued
in the Petition that these limitations were met by Hendel. Corr. Pet. 27, 30–
32. On rehearing, Petitioner does not rely on this argument to show that the
limitation to “access control” is met by Hendel. However, because this
section may be considered relevant based on the amended claim
construction, we discuss it here. Petitioner cites to Hendel’s statement that
“multi-layer network element for forwarding received packets
from an input port to one or more output ports…. The results
from the two searches are combined to forward the packet to the
appropriate one or more output ports.” Ex. 1007, at . . .
[Abstract], 17:9–24 (describing the forwarding decision made by
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the merge logic as indicating appropriate output ports); see also
Ex. 1003, ¶ 112.

Corr. Pet. 27 (emphasis omitted). Petitioner also relies on the following
statement in Hendel: “the forwarding logic 52 also searches the forwarding
memory 40 for an entry indicating the port of the destination address.” Ex.
1007, 11:8–10; Corr. Pet. 30–32. These citations do not suggest that any
alteration is done to a selected output port; they suggest only that the
appropriate output port is selected. Petitioner also relies on Hendel’s
statement that “the appropriate output ports may include no output ports or
one or more output ports.” Ex. 1007, 9:43–44; Corr. Pet. 13. Again, this
statement does not indicate that a selected output port is altered. Thus, this
evidence does not persuade us that there is a reasonable likelihood that
Petitioner would prevail at trial with respect to at least one claim of the ’577
patent.
III. CONCLUSION
We considered Petitioner’s Request for Rehearing. As a result of the
arguments presented, we have amended the construction of “access control”
to “restrictions on the transmission of a packet or alteration of a selected
output interface for the packet.” We then reevaluated the arguments
presented in the Petition and considered the arguments presented on
rehearing. Based on the reevaluation and considerations undertaken by the
Board, the information presented does not show that there is a reasonable
likelihood that Petitioner would prevail at trial with respect to at least one
claim of the ’577 patent, based on any grounds presented in the Petition or
any arguments made on rehearing. Thus, on rehearing, we again deny the
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petition for inter partes review of claims 1, 2, 5, 7–10, 12–16, 18–22, 25,
and 28–31.
ORDER
Accordingly, it is
ORDERED that that the motion for rehearing is DENIED;
FURTHER ORDERED that the petition is DENIED as to all
challenged claims, and no trial is instituted.

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Patent 6,377,577 B1
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PETITIONER:
Walter Renner
Kevin E. Greene
FISH & RICHARDSON P.C.
axf@fr.com
IPR40963-0003IP1@fr.com

PATENT OWNER:
Jon E. Wright
Lori A. Gordon
Robert G. Sterne
Byron L. Pickard
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
jwright-PTAB@skgf.com
lgordon-PTAB@skgf.com
rsterne-PTAB@skgf.com
bpickard-PTAB@skgf.com