Correct Transmission LLC

Patent Trials and Appeals Board

Oct 22, 2021

IPR2021-00814 (P.T.A.B. Oct. 22, 2021)

Trials@uspto.gov Paper 12
Tel: 571-272-7822 Entered: October 22, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

JUNIPER NETWORKS, INC.,
Petitioner,

v.

CORRECT TRANSMISSION, LLC,
Patent Owner.
____________

IPR2021-00814
Patent 7,768,928 B2
____________

Before BRYAN F. MOORE, JOHN R. KENNY, and
STEPHEN E. BELISLE, Administrative Patent Judges.

BELISLE, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
35 U.S.C. § 314

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I. INTRODUCTION
A. Case Posture
Juniper Networks, Inc. (“Petitioner”) filed a Petition (Paper 1, “Pet.”)
requesting an inter partes review of claims 1–3, 6, 7, 9–15, 18–24, 26, 27,
and 30–32 (“Challenged Claims”) of U.S. Patent No. 7,768,928 B2
(Ex. 1001, “the ’928 patent”). Petitioner identifies itself as a real party in
interest. Pet. x. Correct Transmission, LLC (“Patent Owner”) identifies
itself as a real party in interest (Paper 4, 1), and timely filed a Preliminary
Response to the Petition (Paper 6, “Prelim. Resp.”). In addition, with prior
authorization from the Board, the parties filed supplemental briefing
concerning the Preliminary Response. Paper 9 (“Reply-1”); Paper 10
(“Reply-2”); Paper 11 (“Sur-Reply-1”).
We have authority to determine whether to institute an inter partes
review. 35 U.S.C. § 314(b) (2018); 37 C.F.R. § 42.4(a) (2020). We may not
institute an inter partes review “unless . . . 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).
Applying those standards, and upon consideration of the information
presented in the Petition, Preliminary Response, and supplemental briefing,
we determine that Petitioner has not demonstrated a reasonable likelihood of
prevailing with respect to any of challenged claims 1–3, 6, 7, 9–15, 18–24,
26, 27, and 30–32 of the ’928 patent. See 35 U.S.C. § 314; 37 C.F.R.
§ 42.4(a). Accordingly, constrained by the record before us, we deny
institution of an inter partes review of the ’928 patent.
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B. Related Proceedings
The parties indicate that the ’928 patent is involved in two U.S.
district court actions, namely, Correct Transmission, LLC v. Juniper
Networks, Inc., No. 6:20-cv-670 (W.D. Tex.); and Correct Transmission,
LLC v. Adtran, Inc., No. 6:20-cv-669 (W.D. Tex.). Pet. x; Paper 4, 1.
Patent Owner also indicates that the following matters may affect, or
be affected by, a decision in this case: Juniper Networks, Inc. v. Correct
Transmission, LLC, IPR2021-00469 (PTAB); Juniper Networks, Inc. v.
Correct Transmission, LLC, IPR2021-00571 (PTAB);1 and Juniper
Networks, Inc. v. Correct Transmission, LLC, IPR2021-00682 (PTAB).
Paper 4, 1; see Pet. x.
C. The ’928 Patent
The ’928 patent is titled “Connectivity Fault Management (CFM) in
Networks With Link Aggregation Group Connections,” and issued on
August 3, 2010, from U.S. Patent Application No. 11/483,650, filed July 11,
2006. Ex. 1001, codes (10), (21), (22), (45), (54).
The ’928 patent generally relates to “Connectivity and Fault
Management (CFM) and, more particularly but not exclusively, to
implementing CFM techniques over networks that put into practice link-
aggregation mechanisms.” Ex. 1001, 1:8–11.
The ’928 patent summarizes the invention as follows:
[A] maintenance entity operable in an Ethernet Connectivity
Fault Management (CFM) domain. The maintenance entity
comprises a port definer module and a connection configured to

1 On August 30, 2021, the Board denied institution of an inter partes review
of U.S. Patent No. 7,127,523 B2 in IPR2021-00571. Paper 10.
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be connected to a group of aggregated links. The port definer
module is configured to examine a designated link of the group
by forwarding at least one CFM message via the designated link.
Ex. 1001, 3:7–14 (emphases added). The ’928 patent explains that the
Ethernet CFM domain is “preferably defined according to recognized
Standards such as IEEE 802.lag and ITU-T SG 13 Q5 WG. Id. at 7:5–7.
It also explains that “aggregated links” or a “link aggregation group (LAG)”
“may be understood to describe parallel usage of network cables and ports
for increasing the bandwidth of a single logical link beyond the limits of any
one single cable or port,” and that “[t]he [l]ink aggregation is based on a
networking Standard known as IEEE 802.3ad.” Id. at 7:8–15; see id.
at 1:55–58 (“A LAG is a group of two or more network links bundled
together to appear as a single link. For instance, bundling two 100 Mbps
network interfaces into a single link creates one 200 Mbps link.”).
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Figure 3 of the ’928 patent is reproduced below.

Figure 3 is a schematic illustration of an exemplary
network arrangement, which defines a maintenance
domain having a LAG connection.
Ex. 1001, 5:51–53, Fig. 3. Figure 3 above depicts an exemplary network
section having LAG 10, which is used for connecting between maintenance
entity 11, which is preferably defined as a maintenance end-point (MEP),
and several other maintenance entities 12, which are configured as MEPs or
maintenance entity group (MEG) intermediate points (MIPs). Id. at 8:63–
67, 1:30–32 (“A flow point at the edge of a CFM domain is a maintenance
end-point (MEP).”), 1:32–33 (“A flow point inside a domain and visible to
an MEP is a maintenance entity group (MEG) intermediate point (MIP).”).
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Each one of LAG members 10 is “a bidirectional connection that adds a
certain bandwidth, of preferably 100 Mbps or 1000 Mbps, to the logical
connection between the source point 11 and a target point 12.” Id. at 9:8–12.
According to the ’928 patent, “[p]ackets of the CFM messages are
transferred, as any other packets, over the physical connections that connect
among different entities in the network.” Ex. 1001, 9:47–49. Source
point 11 “usually balances the packets which are transferred thereto in order
to efficiently utilize the bandwidth of the links of the LAG,” which is
achieved using “known balancing algorithms.” Id. at 10:27–37. If
distribution of a CFM message, which has been configured for checking a
specific LAG member, is done regardless of the packet source destination,
“the CFM message which is designated to pass through a specific LAG
member . . . is routed according to the balancing algorithm,” which may
“mislead the sending” maintenance entity. Id. at 10:49–57 (emphases
added).
According to the ’928 patent, “[i]n order to avoid such errors, each
source point is configured for identifying CFM messages and to forward
them via an associated LAG member.” Ex. 1001, 10:58–60. “[W]hen the
source point receives or generates a CFM message, it does not forward it via
an LAG member which has been chosen using a balancing algorithm such as
a hashing function, but forwards the CFM message via the LAG member
which it specifies.” Id. at 10:60–64. This processing flow is shown in
Figure 4, reproduced below:
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Figure 4 is a flowchart of a forwarding process.
Ex. 1001, 5:54–55, Fig. 4. According to the ’928 patent, configuring the
source point to identify CFM messages and forward them to a designated
LAG member “enables system operators to define the exact path of Ethernet
CFM frames in a decisive and accurate manner” and further determine
whether the designated LAG member is experiencing a failure. Id. at 10:60–
64, 11:24–28, 12:55–57.
D. Illustrative Claim
The ’928 patent includes thirty-two claims, of which claims 1–3, 6, 7,
9–15, 18–24, 26, 27, and 30–32 are challenged. Claims 1, 14, 22, and 32 are
the challenged independent claims. Claim 1 is illustrative and reproduced
below.
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1. A maintenance entity in an Ethernet Connectivity Fault
Management (CFM) domain, comprising:
a port definer module;
a connection configured to be connected to a group of aggregated
physical links, said group of links comprising a single
logical link to which packets are directed;
said port definer module being configured to designate any one
physical link of said logical link as required for examining
of said designated physical link of said logical link, said
designation comprising forwarding at least one CFM
message to said logical link in such a way as to be
forwarded over said logical link specifically via said
designated physical link, said designation being available
for each physical link separately, thereby allowing
examination according to requirement of any physical link
of said logical link.
Ex. 1001, 14:51–67.
E. Applied References
Petitioner relies upon the following references:
Hayami et al., U.S. Patent No. 6,198,726 B1 (Ex. 1006,
“Hayami”), filed August 28, 1997, issued March 6, 2001.
Bruckman et al., U.S. Patent No. 6,957,369 B2
(Ex. 1007, “Bruckman”), filed May 30, 2002, issued
October 18, 2005.
ITU-T Recommendation Y.1731: OAM Functions and
Mechanisms for Ethernet Based Networks, listed as approved
May 22, 2006 (Ex. 1005, “Y.1731”).
Pet. 2.
Petitioner submits Y.1731 “is a printed publication from ITU’s
Telecommunication Standardization Sector, which published on May 22,
2006,” and “is prior art under at least §102(a).” Pet. 2–3. Petitioner also
submits the Declaration of Mr. Huub van Helvoort (Ex. 1033), who testifies,
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inter alia, that “ITU-T published a version of Y.1731 on its website to ITU
members shortly after SG13 approval of the final draft,” and that “this
publication occurred no later than June 1, 2006.” Ex. 1033 ¶ 8; see Reply-1,
2. Patent Owner opposes. Prelim. Resp. 31–36. Because we deny
institution of an inter partes review of the ’928 patent on the merits, even
assuming Y.1731 is a printed publication and properly qualifies as prior art
in this case, we need not and do not reach herein whether Y.1731 qualifies
as a printed publication.
F. Asserted Grounds of Unpatentability
Petitioner challenges the patentability of claims 1–3, 6, 7, 9–15, 18–
24, 26, 27, and 30–32 of the ’928 patent based on the following grounds.
Claim(s) Challenged 35 U.S.C. § Reference(s)/Basis
1–3, 6, 7, 9–15, 18–24, 26, 27, 30–32 103(a)2 Y.1731, Hayami
1–3, 6, 7, 9–15, 18–24, 26, 27, 30–32 103(a) Bruckman
Pet. 2. Petitioner relies upon the Declarations of Yaling Yang, Ph.D.
(Ex. 1003) and Mr. Huub van Helvoort (Ex. 1033).
II. ANALYSIS
A. Applicable Law
Petitioner challenges the patentability of claims 1–3, 6, 7, 9–15, 18–
24, 26, 27, and 30–32 of the ’928 patent on grounds that the claims would
have been obvious under 35 U.S.C. § 103 in light of various references

2 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29,
125 Stat. 284, 287–88 (2011), amended 35 U.S.C. § 103. Because the
’928 patent was filed before March 16, 2013, the effective date of the
relevant amendment, the pre-AIA version of § 103 applies.
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including: Y.1731, Hayami, and Bruckman. “In an [inter partes review],
the petitioner has the burden from the onset to show with particularity why
the patent it challenges is unpatentable.” Harmonic Inc. v. Avid Tech., Inc.,
815 F.3d 1356, 1363 (Fed. Cir. 2016) (citing 35 U.S.C. § 312(a)(3)
(requiring inter partes review petitions to identify “with particularity . . . the
evidence that supports the grounds for the challenge to each claim”))
(emphasis added). This burden never shifts to Patent Owner. See Dynamic
Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir.
2015) (citing Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316,
1326–27 (Fed. Cir. 2008)) (discussing the burden of proof in inter partes
review).
A claim is unpatentable under 35 U.S.C. § 103 if “the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations, including (1) the scope and content of the prior art;
(2) any differences between the claimed subject matter and the prior art;
(3) the level of skill in the art; and (4) when of record, objective evidence of
obviousness or non-obviousness, i.e., secondary considerations. Graham v.
John Deere Co., 383 U.S. 1, 17–18 (1966). Secondary considerations may
include the following: “commercial success, long felt but unsolved needs,
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failure of others, etc.”3 Id. The totality of the evidence submitted may show
that the challenged claims would not have been obvious to one of ordinary
skill in the art. In re Piasecki, 745 F.2d 1468, 1471–72 (Fed. Cir. 1984).
When evaluating a combination of teachings, we must also “determine
whether there was an apparent reason to combine the known elements in the
fashion claimed by the patent at issue.” KSR, 550 U.S. at 418 (citing In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
We analyze the challenges presented in the Petition in accordance
with the above-stated principles.
B. Level of Ordinary Skill in the Art
Petitioner contends that a person of ordinary skill in the art, at the time
of the effective filing date of the ’928 patent:
would have had a bachelor’s degree in electrical engineering,
computer engineering, computer science, or a closely related
field, and one to two years of experience in the design and
development of network communication systems. Alternatively,
a POSITA would have a Master’s degree or similar post-graduate
work in electrical engineering, computer engineering, computer
science, or a closely related field, and less years of design and
development experience.
Pet. 7 (citing Ex. 1003 ¶¶ 67–71). Patent Owner does not present an
alternative definition at this stage of the proceeding. Prelim. Resp. 30.
We regard Petitioner’s proposed definition as reasonable, and
consistent with the prior art before us. See In re GPAC Inc., 57 F.3d 1573,
1579 (Fed. Cir. 1995) (determining that the Board of Patent Appeals and

3 At this stage of the proceeding, Patent Owner has not presented objective
evidence of non-obviousness.
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Interferences did not err in concluding that the level of ordinary skill in the
art was best determined by the references of record). Accordingly, we apply
the level of skill set forth above, which also is consistent with the testimony
of Dr. Yang (Ex. 1003 ¶¶ 67–71).
C. Claim Construction
Petitioner does not propose any claim terms for construction. Pet. 7
(“For purposes of this proceeding, Petitioner construes each of the
’928 claim terms as having its ordinary and custom[ary] meaning.”).
Although, Petitioner does submit that, “[f]or purposes of this IPR only,
Petitioner relies on the claim scope positions Patent Owner has advanced in
district court for ‘port definer module.’” Pet. 8. Similarly, Patent Owner
argues each claim term should have its ordinary and customary meaning,
except that, as in the parallel district court proceeding, the function of
alleged means-plus-function term “port definer module” should be construed
to be “designating any one physical link of the logical link and examining
the designated link of the logical link.” Prelim. Resp. 11–12. We note that,
in the Preliminary Response, Patent Owner does not appear to identify any
structure in the Specification for performing that function. See generally
Prelim. Resp. Regardless, we do not find that the express construction of
any term is necessary for this decision. See Vivid Techs., Inc. v. Am. Sci. &
Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly those terms need be
construed that are in controversy, and only to the extent necessary to resolve
the controversy.”); Nidec Motor Corp. v. Zhongshan Broad Ocean Motor
Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (applying Vivid Techs. in the
context of an inter partes review).
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D. Obviousness of the Challenged Claims over the Combination of
Y.1731 and Hayami (Ground 1)
Petitioner contends claims 1–3, 6, 7, 9–15, 18–24, 26, 27, and 30–32
are unpatentable under 35 U.S.C. § 103 as obvious over the combination of
Y.1731 (Ex. 1005) and Hayami (Ex. 1006). Pet. 9–55. Patent Owner
opposes Petitioner’s contentions. Prelim. Resp. 30–48. Based on our review
of the Petition and Preliminary Response, we determine that Petitioner has
not demonstrated a reasonable likelihood that it would prevail in showing
that any of claims 1–3, 6, 7, 9–15, 18–24, 26, 27, and 30–32 is unpatentable
as obvious over the combination of Y.1731 and Hayami, as discussed below.
We begin with an overview of Y.1731.
1. Overview of Y.1731
Y.1731 generally “provides mechanisms for user-plane OAM
[Operation, Administration and Maintenance] functionality in Ethernet
networks,” and “is designed specifically to support point-to-point
connections and multipoint connectivity in the ETH layer [Ethernet MAC
layer network].” Ex. 1005, 3, 12–13.4 Such OAM mechanisms “offer
capabilities to operate and maintain the network and service aspects of ETH
layer,” including detecting loss of continuity (LOC) between any pair of
Maintenance Entity Group End Points (MEPs) in a Maintenance Entity
Group (MEG). Id. at 3, 13, 19, 67 (I.1).

4 We refer to exhibit page numbering (i.e., the page numbering added by
Petitioner), and not to the original pagination of Exhibit 1005.
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Figure II.1 of Y.1731 is reproduced below.

Figure II.1 is an example MEG level assignment for
shared MEG levels.
Ex. 1005, 71, Fig. II.1/Y.1731. “Figure II.1 provides an example scenario
with the default assignment of MEG Levels, where the Customer, Provider,
and Operator roles share the MEG Levels. In the figure, triangles represent
MEPs, circles represent MIPs [MEG Intermediate Points], and diamonds
represent TrCPs [Traffic Conditioning Points].” Id. at 13–18, 71.
Figure II.2 of Y.1731 is reproduced below.

Figure II.2 is an example MEG level assignment for
independent MEG levels.
Ex. 1005, 72, Fig. II.2/Y.1731. “Figure II.2 provides an example scenario
where the customer and service provider do not share the MEG Levels.
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However, the service provider and operator share the MEG Levels. In the
figure, triangles represent MEPs, circles represent MIPs, and diamonds
represent TrCPs.” Id. at 13–18, 72.
2. Independent Claims 1, 14, 22, and 32
a. Physical/Logical Link Limitations
Independent claims 1, 14, 22, and 32 each require, through various
phrasing, aggregated physical links with a single logical link to which
packets are directed. See Ex. 1001, claim 1 (“a group of aggregated physical
links, said group of links comprising a single logical link to which packets
are directed”), claim 14 (“at least one group of aggregated physical links
comprising a single logical link”), claim 22 (“connecting first and second
maintenance entities via a link aggregation group (LAG), said LAG
comprising a single logical link made up of a plurality of physical links”),
claim 32 (“a group of aggregated physical links, said group of links
comprising a single logical link to which packets are directed”). We refer to
these limitations collectively as the Physical/Logical Link Limitations.
The parties dispute, inter alia, whether Petitioner’s cited evidence
adequately supports Petitioner’s contention that Y.1731 discloses the
Physical/Logical Link Limitations, as recited in each of challenged
independent claims 1, 14, 22, and 32. See, e.g., Prelim. Resp. 36–39;
Pet. 16–19, 52.
Petitioner contends Y.1731 discloses the Physical/Logical Link
Limitations. Pet. 16. But Petitioner does not direct us to any explicit
disclosure in Y.1731 of such features. Instead, Petitioner cites to a sentence
in Y.1731 stating, “[t]he architectural basis for this Recommendation is the
Ethernet specification G.8010/Y.1306 which also accounts for IEEE
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802.1D, 802.1Q, and 802.3” (Ex. 1005, 9 (emphases added)), and argues
“Y.1731 teaches applying point-to-point and multipoint Ethernet
connections to operate in conjunction with connections and architectures
standardized in 802.3” (Pet. 16). Petitioner then argues “the 802.3ad
Standard (and the omnibus 802.3 Standard which includes 802.3ad)
describes ‘one or more links to be aggregated together to form a Link
Aggregation Group, such that a MAC Client can treat the Link Aggregation
Group as if it were a single link’ through the establishment of logical links.”
Pet. 17. Petitioner also contends “Figure II.2, Y.1731 describes aggregated
virtual connections to implement OAM functions on a network between
MEPs.” Pet. 16. Petitioner concludes that “[b]ased on Y.1731’s teachings
and its discussion of 802.3, a POSITA would have understood Y.1731
discloses a LAG for creating a single logical link for packet transfer.”
Pet. 17.
Patent Owner argues:
With regard to the required aggregation of physical links,
or LAG, Petitioner claims Y.1731 “discloses these claim
elements.” Pet. at 16. Yet Petitioner does not point to any
substantive element in Y.1731, but instead relies on the 802.3ad
Standard to state that one or more links can be aggregated
together to form a LAG. Pet. at 17. Notably, 802.3ad is not even
mentioned in the cited Y.1731 Patent. Recognizing this fact,
Petitioner apparently interprets Y.1731 to “encourage
investigation of the entire 802.3 standard.” Pet. at 17, FN 57. As
a result of this handwaving, Petitioner comes to the conclusion
of “Based on Y.1731’s teachings and its discussion of 802.3, a
POSITA would have understood that Y.1731 discloses a LAG.”
Pet. at 17. The only reference Petitioner makes to Y.1731 is to
Figure II.2, which purportedly discloses “aggregated virtual
connections” as opposed to the required “aggregation of physical
links.”
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Prelim. Resp. 37–38. Patent Owner also argues “Petitioner, instead of citing
actual language from Y.1731, improperly relies on the ’928 Patent as a
roadmap to its obviousness analysis, which does not meet the required
burden.” Prelim. Resp. 37 (emphasis added). Patent Owner further argues
“Petitioner recognizes that Y.1731 does not disclose implementation of a
LAG interface, and instead attempts to push together a variety of references
not even mentioned in Y.1731, without providing any rationale as to why a
POSITA would understand Y.1731 to include more than [it] explicitly
discloses.” Prelim. Resp. 38 (emphasis added). We find Patent Owner’s
arguments persuasive.
Petitioner has not explained sufficiently, let alone with particularity,
why the skilled artisan, but for hindsight, would have (1) taken Y.1731,
which says nothing concerning aggregated physical links with a single
logical link to which packets are directed; (2) then turned to the architectural
basis for Y.1731, namely “Ethernet specification G.8010/Y.1306”; (3) then
turned to standards “IEEE 802.1D, 802.1Q, and 802.3,” which are
“account[ed] for” by G.8010/Y.1306, and specifically selected to pursue
802.3 from among those; (4) then, without any reference or indication in
Y.1731 itself, turned specifically to standard IEEE 802.3ad within the set of
802.3 standards, and specifically to its disclosure of aggregated physical
links with a single logical link; and then (5) upon making all of these
connections, understood Y.1731 itself to disclose or teach aggregated
physical links with a single logical link, particularly in the context of the
Challenged Claims as a whole. See InTouch Techs., Inc. v. VGO Commc’ns,
Inc., 751 F.3d 1327, 1351 (Fed. Cir. 2014) (“It appears that [the expert]
relied on the [] patent itself as her roadmap for putting what she referred to
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as pieces of a ‘jigsaw puzzle’ together.”); Sensonics, Inc. v. Aerosonic Corp.,
81 F.3d 1566, 1570 (Fed. Cir. 1996) (citing W.L. Gore & Assoc. v. Garlock,
Inc., 721 F.2d 1540, 1553 (Fed. Cir. 1983)) (“To draw on hindsight
knowledge of the patented invention, when the prior art does not contain or
suggest that knowledge, is to use the invention as a template for its own
reconstruction—an illogical and inappropriate process by which to
determine patentability.”). Although “[a] person of ordinary skill is also a
person of ordinary creativity, not an automaton” (KSR, 550 U.S. at 421), the
Federal Circuit has observed that “‘the prejudice of hindsight bias’ often
overlooks that the ‘genius of invention is often a combination of known
elements which in hindsight seems preordained.’” Polaris Industries, Inc. v.
Arctic Cat, Inc., 882 F.3d 1056, 1068 (Fed. Cir. 2018).
In this case, Petitioner contends as “Ground 1” that “[t]he
combination of Y.1731 and Hayami renders obvious all Challenged Claims.”
Pet. 9. Thus, the question before us is not whether aggregated physical links
with a single logical link to which packets are directed, as a disparate puzzle
piece, were known in the art—the ’928 patent itself tell us that puzzle piece
was known. See Ex. 1001, 1:41–2:9 (“Such a solution, which has been
adapted by many network planners, is a link aggregation group (LAG)
mechanism. A LAG is a group of two or more network links bundled
together to appear as a single link. . . . In other words, the two or more
network links are used in parallel in order to increase the logical link speed
beyond the physical limits of any one of them.”). Rather, the question
before us is whether the skilled artisan would have understood Y.1731 alone
(or in combination with Hayami) to teach the Physical/Logical Link
Limitations. Petitioner acknowledges Y.1731 itself does not explicitly
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disclose this limitation, but as outlined above, asks us to leap from Y.1731 to
IEEE 802.3ad, a specific standard not cited, let alone discussed, in Y.1731,
and infuse hand-picked teachings from IEEE 802.3ad into Y.1731 as if
taught therein ab initio. See Pet. 16–19. On the record before us, we find
Petitioner does not provide particular evidentiary support and explanation
for such a leap. See 35 U.S.C. § 312(a)(3) (The petition must identify
supporting evidence “with particularity.” (emphasis added)); 37 C.F.R
§ 42.104(b)(4) (“The petition must specify where each element of the claim
is found in the prior art . . . .” (emphasis added)).
Additionally, even if we were to assume that the skilled artisan was
aware of each of the hand-picked teachings from Y.1731 and standard
IEEE 802.3ad individually, we find Petitioner does not provide with
particularity any rationale to combine such teachings, i.e., “whether the
relevant skilled artisan had a motivation to combine pieces of prior art in the
way eventually claimed in the patent at issue.” Intercontinental Great
Brands LLC v. Kellogg N. Am. Co., 869 F.3d 1336, 1343 (Fed. Cir. 2017)
(citing Apple Inc. v. Samsung Elecs. Co., 839 F.3d 1034, 1047–48, 1051
(Fed. Cir. 2016) (en banc)) (emphasis added).
For the foregoing reasons, and constrained by the Petition, we are not
persuaded that the cited evidence adequately supports Petitioner’s contention
that Y.1731 discloses the Physical/Logical Link Limitations, as recited in
independent claims 1, 14, 22, and 32.
b. Designating Limitations
Independent claims 1, 14, 22, and 32 also each require, through
various phrasing, designating any one physical link of the logical link for
examination of the physical link. See Ex. 1001, claim 1 (“port definer
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module being configured to designate any one physical link of said logical
link as required for examining of said designated physical link of said
logical link”), claim 14 (“port definer module of said first maintenance
entity being configured to designate any physical link as required of said
single logical link”), claim 22 (“using said first maintenance entity to select
one of said physical links as a designated link for forwarding a CFM
message via a designated link of said LAG . . . each of said physical links
being selectable as said designated link, thereby to provide for examination
as required for any physical link of said group comprising said single logical
link”), claim 32 (“port definer module being configured to designate any one
physical link of said logical link as required for sending an Ethernet packet
via said designated physical link of said logical link”). We refer to these
limitations collectively as the Designating Limitations.
The parties dispute, inter alia, whether Petitioner’s cited evidence
adequately supports Petitioner’s contention that Y.1731 discloses the
Designating Limitations, as recited in each of challenged independent
claims 1, 14, 22, and 32. See, e.g., Prelim. Resp. 39–42; Pet. 19–24, 52–53.
Petitioner contends Y.1731 discloses the Designating Limitations, but
does so based on the premise that “Y.1731 discloses a group of aggregated
physical links appearing as a single logical link for packet transfer”
(Pet. 19), of which we are not persuaded, as discussed above. Petitioner
argues “Y.1731 discloses [that] an MEP [maintenance end-point] includes
structure capable of performing the function ‘designating any one physical
link of the logical link’” (Pet. 20 (emphasis added)), but does not direct us
with particularity to any actual teaching in Y.1731 of such a designating
function involving both physical and logical links. Petitioner also argues
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“Y.1731’s MEP forwards frames to predefined ports,” and concludes that
the skilled artisan “would have understood Y.1731 describes the
functionality of designating any one physical link of the logical link”
(Pet. 20–21), but does so without explaining why the skilled artisan would
have had such an understanding. As with the Physical/Logical Link
Limitations (see supra), Petitioner again hand-picks certain disclosure in
standard IEEE 802.3ad concerning “Link Aggregation Control,” converts it
to a teaching of Y.1731, and concludes that “[b]y Y.1731 operating with
802.3-based connections and architectures, a POSITA would have
understood Y.1731 discloses or suggests its MEP includes a processor-based
electrical circuit capable of performing the function designating any one
physical link of the logical link.” Pet. 21–22 (citing, inter alia, Ex. 1013,
Fig. 43-2).
Patent Owner argues:
Petitioner provides no evidence from Y.1731 that the cited MEP
“designates any one physical link” as required by the
[Challenged Claims]. Petitioner doesn’t even attempt to identify
what action by the MEP would constitute a purported
“designation.” In fact, as Petitioner states, the MEP of Y.1731
forwards frames to predefined ports, as opposed to the MEP
designating a port for examination, which is required by the
[C]hallenged [C]laims.
Prelim. Resp. 41. Patent Owner also argues, given Petitioner’s infusion of
standard IEEE 802.3ad disclosures into Y.1731, “Petitioner does not
reconcile how Y.1731’s purported designation of ‘predefined ports’
complies with the 802.3ad standards.” Prelim. Resp. 41. Patent Owner
further argues “Petitioner fails to show how the MEP of Y.1731 designates a
physical link within the purported LAG of 802.3ad.” Prelim. Resp. 41–42.
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We find Patent Owner’s arguments persuasive. We also again find, on the
record before us, Petitioner simply does not provide particular (or clear)
evidentiary support and explanation for leaping from Y.1731 to standard
IEEE 802.3ad, or for how Y.1731 allegedly teaches the Designating
Limitations in combination with the Physical/Logical Link Limitations as
embodied in the Challenged Claims. See 35 U.S.C. § 312(a)(3); 37 C.F.R
§ 42.104(b)(4).
We recognize that a reason to combine teachings “need not be found
in prior art references, but equally can be found in the knowledge generally
available to one of ordinary skill in the art,” and such knowledge may be
established through “the testimony of an expert witness.” Alza Corp. v.
Mylan Lab’ys, Inc., 464 F.3d 1286, 1294 (Fed. Cir. 2006). In this case,
however, Petitioner’s expert does not sufficiently evidence or explain why a
person of ordinary skill in the art would have been motivated to modify
Y.1731 in view of the hand-picked disclosures from standard IEEE 802.3ad
to achieve the features of the Designating Limitations, or why a person of
ordinary skill in the art would “understand” Y.1731 itself to allegedly teach
such features, in the context of the Challenged Claims as a whole. See
Pet. 19–27; Ex. 1003 ¶¶ 91–101. We give such conclusory, unsupported
assertions by Petitioner’s expert little or no weight. See In re Am. Acad. of
Sci. Tech Ctr., 367 F.3d 1359, 1368 (Fed. Cir. 2004) (“[T]he Board is
entitled to weigh the declarations and conclude that the lack of factual
corroboration warrants discounting the opinions expressed in the
declarations.”); Rohm and Haas Co. v. Brotech Corp., 127 F.3d 1089, 1092
(Fed. Cir. 1997) (noting that a fact finder is not required to “credit the
unsupported assertions of an expert witness”); 37 C.F.R. § 42.65(a) (“Expert
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testimony that does not disclose the underlying facts or data on which the
opinion is based is entitled to little or no weight.”).
Notably, Petitioner appears to take inconsistent positions regarding
the Designating Limitations. On the one hand, Petitioner relies only on
Y.1731 for allegedly teaching the Designating Limitations (see Pet. 19–27),
but on the other hand, Petitioner admits Y.1731 “doesn’t expressly disclose
designating one of its physical links to examine the designated link”
(Pet. 14). Petitioner also admits that the Examiner allowed the Challenged
Claims based on the Designating Limitations. Pet. 6. We find Y.1731 not
only does not “expressly disclose” the Designating Limitations, but as
discussed above, Petitioner has not shown with particularity (and clarity)
how it otherwise does so.
For the foregoing reasons, and constrained by the Petition, we are not
persuaded that the cited evidence adequately supports Petitioner’s contention
that Y.1731 discloses the Designating Limitations, as recited in independent
claims 1, 14, 22, and 32.
3. Summary
For the foregoing reasons, we determine that Petitioner has not
demonstrated a reasonable likelihood of success in establishing the
unpatentability of any of independent claims 1, 14, 22, and 32, and claims 2,
3, 6, 7, 9–13, 15, 18–21, 23, 24, 26, 27, 30, and 31, which depend therefrom,
as obvious over the combination of Y.1731 and Hayami.
E. Obviousness of the Challenged Claims over Bruckman (Ground 2)
Petitioner contends claims 1–3, 6, 7, 9–15, 18–24, 26, 27, and 30–32
are unpatentable under 35 U.S.C. § 103 as obvious over Bruckman
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(Ex. 1007). Pet. 55–86. Patent Owner opposes Petitioner’s contentions.
Prelim. Resp. 48–65. Based on our review of the Petition and Preliminary
Response, we determine that Petitioner has not demonstrated a reasonable
likelihood that it would prevail in showing that any of claims 1–3, 6, 7, 9–
15, 18–24, 26, 27, and 30–32 is unpatentable as obvious over Bruckman, as
discussed below. We begin with an overview of Bruckman.
1. Overview of Bruckman
Bruckman relates generally “to diagnostic testing of electronic
equipment, and specifically to nonintrusive self-testing of communication
systems.” Ex. 1007, 1:5–7. Bruckman discloses:
A method for self-testing of an electronic system that
includes a main module and subsidiary modules, which are
connected to the main module by data lines, at least some of
which may be idle. One of the idle lines is selected to serve as
an aid line, and the subsidiary module to which the aid line is
connected is instructed to loop back traffic reaching the
subsidiary module via the aid line. Another idle line is selected
for testing, and a switch in the main module is configured to link
the aid line and the line under test. The subsidiary module to
which the line under test is connected transmits test traffic over
the idle line to the main module. If the test traffic does not return
to the subsidiary module within a predetermined period of time,
a failure is reported.
Id., Abstract. Figure 1 of Bruckman is reproduced below.
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Figure 1 is a block diagram that schematically illustrates
a communication system with non-intrusive hidden
failure detection capability.
Ex. 1007, 4:43–46, Fig. 1. As shown above in Figure 1, communication
system 20 comprises main module 22 and a number of subsidiary modules
24, labeled module A, B, . . . , K. Id. at 4:54–58. The main and subsidiary
modules plug into backplane 26, which includes traces 34 that connect the
modules. Id. at 4:58–60. Main module 22 comprises switch 28 and multiple
ports 30, labeled P1, P2, . . . , Pn, for connecting to ports 32 of subsidiary
modules 24 via the backplane traces. Id. at 4:60–63. Ports 30 and 32
typically comprise high-speed physical interface components. Id. at 4:63–
64.
Bruckman discloses that switch 28 aggregates upstream traffic from
ports 30 to an uplink trunk connecting to a high-speed network, and
distributes downstream traffic from the network to ports 30 using an
appropriate internal protocol. Ex. 1007, 5:1–5. Switch 28 can also be
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configured to direct data from any one of main module ports 30 to any other
main module port, thus forming a virtual connection between subsidiary
module ports 32 that are connected to these main module ports. Id. at 5:5–9.
Bruckman also discloses “[t]he physical layer interfaces between the
subsidiary modules and the main module are uniform, and the different
services are thus transmitted through ports 30 and 32 and are aggregated
by switch 28 irrespective of the differences in service type.” Ex. 1007,
5:21–26. In Bruckman, “an operator of system 20 installs subsidiary
modules 24 with some spare capacity, to allow provisioning of additional
services when requested by users,” and therefore, “some of traces 34 on
backplane 26 may be idle at any given time.” Id. at 5:26–30. In Figure 1
above, active traces 36 are shown by solid lines, and idle traces 38 are
dashed. Id. at 5:30–31.
2. Physical/Logical Link Limitations
The parties dispute, inter alia, whether Petitioner’s cited evidence
adequately supports Petitioner’s contention that Bruckman discloses the
Physical/Logical Link Limitations, as recited in each of challenged
independent claims 1, 14, 22, and 32. See, e.g., Prelim. Resp. 51–53;
Pet. 62–64.
Referring to Figure 1 of Bruckman, reproduced above, Petitioner
argues “Bruckman includes different groups . . . of aggregated links
connecting the main module to the subsidiary modules, where each
connection between the main and subsidiary modules comprises multiple
links.” Pet. 62. Petitioner also argues “Bruckman connects its main module
with ‘a trunk link to a core network’ to subsidiary modules serving network
users,” and notes that the ’928 patent specifies “LAG is also known as an
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Ethernet trunk.” Pet. 64. Petitioner concludes “[b]ased on Bruckman’s
teachings and what was generally known in the art, a POSITA would have
understood Bruckman discloses a group of aggregated physical links
comprising a single logical link for packet transfer and for connecting first
and second maintenance entities.” Pet. 64.
Patent Owner argues:
Communication between the main module and subsidiary
modules is made through one of the active lines, such as line 36.
Nothing in Bruckman suggests that these lines are comprised of
an aggregated group of physical links. Petitioner’s only
purported evidence of this is a citation to Dr. Yang [Petitioner’s
expert]. Petitioner’s expert states that the LAG term was known
in the art, without providing any reasoning as to why Bruckman’s
lines would be “aggregated” beyond a conclusory modified
drawing. Bruckman discloses that these extra lines are used “to
allow provisioning of additional services when requested by
users.” Notably, nothing says that these lines are aggregated
links, or that the separate idle and active connections of
Bruckman can “allow two or more links to be aggregated
together in such a manner that a destination entity can treat data
that is received as a number of links as a single logical link.”
Instead of explaining its position, Petitioner states that based on
Bruckman and “what was generally known in the art,” a POSTIA
would have “understood” that Bruckman discloses a group of
aggregated physical links comprising a single logical link.
Prelim. Resp. 52–53 (citations omitted). We find Patent Owner’s arguments
persuasive.
As shown above in Figure 1 of Bruckman, communication system 20
comprises traces 34 for carrying data between connecting ports 30 of main
module 22 and ports 32 of subsidiary modules 24, where some traces are
active traces 36 (shown by solid lines) and others are idle traces (shown by
dotted lines). Ex. 1007, 4:54–67, 5:21–54. According to Bruckman, idle
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traces 38 are used “to allow provisioning of additional services when
requested by users.” Id. at 5:26–31. Given Bruckman’s explicit disclosure
of using traces 34 individually, with some active and others idle, we are not
persuaded by Petitioner that Bruckman teaches a single logical link to which
packets are directed for transmission across aggregated physical links
(i.e., across two or more network links used in parallel in order to increase
the logical link speed beyond the physical limits of any one of them
(Ex. 1001, 1:53–67)). Petitioner does not direct us to any disclosure in
Bruckman of bundling together multiple communication links in parallel and
transmitting data over such aggregated links as if they were a single link.
See generally Pet. 62–64. Again, neither Petitioner nor its declarant has
explained sufficiently, let alone with particularity, why the skilled artisan,
but for hindsight, would have understood Bruckman to teach the
Physical/Logical Link Limitations. See InTouch Techs., 751 F.3d at 1351;
Sensonics, 81 F.3d at 1570.
For the foregoing reasons, and constrained by the Petition, we are not
persuaded that the cited evidence adequately supports Petitioner’s contention
that Bruckman discloses the Physical/Logical Link Limitations, as recited in
independent claims 1, 14, 22, and 32.
3. Designating Limitations
The parties dispute, inter alia, whether Petitioner’s cited evidence
adequately supports Petitioner’s contention that Bruckman discloses the
Designating Limitations, as recited in each of challenged independent
claims 1, 14, 22, and 32. See, e.g., Prelim. Resp. 53–58; Pet. 64–69.
Petitioner contends Bruckman discloses the Designating Limitations,
but does so based on the premise that Bruckman discloses the
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Physical/Logical Link Limitations (Pet. 64), of which we are not persuaded,
as discussed above. Petitioner also argues “Bruckman’s main module
selects the lines to be tested and oversees the testing process through use of
the subsidiary modules.” Pet. 64; see Pet. 65–67. Petitioner also argues
“[b]ecause Bruckman’s master module selects the lines for testing by
identifying particular connection ports, and oversees and initiates the testing
process through use of the subsidiary modules and ports, a POSITA would
have understood Bruckman describes the functionality of designating any
one physical link of the logical link.” Pet. 67.
Patent Owner responds, and we agree, “Petitioner makes no attempt to
explain how any purported physical link of Bruckman may be designated for
testing, given the fact that Bruckman expressly teaches that only ‘idle lines’
can have test traffic.” Prelim. Resp. 55 (emphasis added). Patent Owner
argues, and we agree:
Petitioner only addresses the “idle lines” in a conclusory manner
stating that the main module of Bruckman “confirms a specific
link.” Petitioner makes no attempt to distinguish idle lines vs.
active lines, or explain how an active line could be designated to
disclose how “any physical link” could be designated in
Bruckman’s system. Instead, Petitioner assumes this is fact and
concludes that “a POSITA would have understood” that
Bruckman designates any one physical link.
Prelim. Resp. 55–56. On the record before us, we find neither Petitioner nor
its declarant provides evidentiary support and explanation of sufficient
particularity for how Bruckman, which explicitly discloses designating for
testing only idle physical lines, allegedly teaches designating for testing any
physical lines associated with a single logical line, or for why the skilled
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artisan would understand Bruckman to teach doing so. See 35 U.S.C.
§ 312(a)(3); 37 C.F.R § 42.104(b)(4).
For the foregoing reasons, and constrained by the Petition, we are not
persuaded that the cited evidence adequately supports Petitioner’s contention
that Bruckman discloses the Designating Limitations, as recited in
independent claims 1, 14, 22, and 32.
4. Summary
For the foregoing reasons, we determine that Petitioner has not
demonstrated a reasonable likelihood of success in establishing the
unpatentability of any of independent claims 1, 14, 22, and 32, and claims 2,
3, 6, 7, 9–13, 15, 18–21, 23, 24, 26, 27, 30, and 31, which depend therefrom,
as obvious over Bruckman.
F. Discretionary Denial Under 35 U.S.C. § 314(a)
Because we deny institution upon consideration of the merits of
Petitioner’s challenges, Patent Owner’s arguments that we should exercise
our discretion under 35 U.S.C. § 314(a) to deny institution are moot.
III. CONCLUSION
Petitioner has not demonstrated a reasonable likelihood of prevailing
with respect to any of claims 1–3, 6, 7, 9–15, 18–24, 26, 27, and 30–32 of
the ’928 patent under either of proffered Grounds 1 and 2.
IV. ORDER
For the reasons given, it is:
ORDERED that, pursuant to 35 U.S.C. § 314(a), an inter partes
review is not instituted for claims 1–3, 6, 7, 9–15, 18–24, 26, 27, and 30–32
of U.S. Patent No. 7,768,928 B2.
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For PETITIONER:
Joseph Edell
Kyle Tsui
FISCH SIGLER LLP
joe.edell.IPR@fischllp.com
kyle.tsui@fischllp.com

For PATENT OWNER:
Bradley Liddle
Seth Lindner
CARTER ARNETT PLLC
bliddle@carterarnett.com
slindner@carterarnett.com