Metacluster Lt, UAB

Patent Trials and Appeals Board

Dec 1, 2021

IPR2021-00983 (P.T.A.B. Dec. 1, 2021)

Trials@uspto.gov Paper 9
571-272-7822 Date: December 1, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

BRIGHT DATA LTD.,
Petitioner,
v.
METACLUSTER LT, UAB,
Patent Owner.

IPR2021-00983
Patent 10,601,948 B1

Before DEBRA K. STEPHENS, BRYAN F. MOORE, and
BARBARA A. PARVIS, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION
Denying Institution of Inter Partes Review
35 U.S.C. § 314, 37 C.F.R. § 42.4

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I. INTRODUCTION
A. Background and Summary
Bright Data LTD. (“Petitioner”) filed a petition for inter partes review
(Paper 1 (“Pet.” or “Petition”)) challenging claims 1–20 of U.S. Patent
10,601,948 B1 (Ex. 1001 (“’948 Patent”)). Metacluster Lt, UAB (“Patent
Owner”) timely filed a Preliminary Response (Paper 6 (“Prelim. Resp.”)).
The standard for instituting an inter partes review is set forth in 35 U.S.C.
§ 314(a), which provides as follows:
(a) THRESHOLD.—The Director may not authorize an inter partes
review to be instituted unless the Director determines that the
information presented in the petition filed under section 311 and
any response filed under section 313 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)).
Petitioner challenges claims 1–20 as unpatentable under 35 U.S.C.
§ 103 or § 103 (Pet. 3). Generally, Patent Owner contends that the Petition
should be denied as to all challenged claims (see Prelim. Resp.). Based on
our review of the record, we conclude Petitioner is not reasonably likely to
prevail in demonstrating that at least one of the challenged claims is not
patentable.
B. Real Parties in Interest
Patent Owner states that Metacluster Lt, UAB is the real-party-in-
interest (Paper 5, 1).
Petitioner states that Bright Data LTD is the real-party-in-interest
(Pet. 1).
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C. Related Matters
According to Petitioner, the ’948 Patent “is not currently the subject
of any federal court litigation or any allegation of invalidity” (Pet. 1). Patent
Owner does not identify any proceedings related to the ’948 Patent (see
generally Paper 5).
D. The ’948 Patent
The ’948 Patent, titled “Smart Proxy Rotator,” issued March 24, 2020
(Ex. 1001, codes (45), (54)). The ’948 Patent describes a system for rotating
which proxy a client will use (id. at 3:28–34). By way of background, the
’948 Patent explains that, “[w]hen a client sends a web request,” e.g., a
request for a web page from a web server, “the request goes to [a] proxy
server first” (id. at 2:2–6). Acting as an intermediary between the client and
web server, the “proxy server . . . makes the web request on the client's
behalf, collects the response from the web server, and forwards the web page
data so that the client can see the page in the browser” (id. at 1:29–31, 2:3–
6). The ’948 patent describes issues arising with the use of proxies, e.g.,
“[i]f the same proxy is used for too many requests, the proxy will ultimately
be banned by the Internet service provider or the web page” or “[i]f too
many requests come in from one IP address in a short period of time, then
the site will return some sort of error message and disallow the requests from
that proxy” (id. at 2:46–53). The ’948 Patent states that rotating proxies
addresses such problems and, further, purports to disclose an improved
“efficient manner” of rotating proxies using a Smart Proxy Rotator (SPR)
(id. at 2:53–55, 3:28–31, 6:62–55). Figure 1 of the ’948 Patent, reproduced
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below, is a component diagram showing the architecture of a system
including such an SPR (id. at 4:42–44, 8:23–24).

Figure 1
As shown in Figure 1, “elements 1 through 9 are the comprising parts
of [a] Smart Proxy Rotator” (id. at 5:1–2) while “elements 10 through 12 are
external systems” (id. at 5:2–3). Specifically, external system element 10 is
a “Web Scraper,” element 11 is a “Proxy,” and element 13 is a “Target” or
“Target Server” (id. at 5:48, 5:64, 6:24). Web Scraper 10 accesses web
content provided by Target 12, i.e., a web server, through intermediary
Proxy 11, i.e., a proxy server, (id. at 5:48–6:8, 6:24–25). There may be
multiple Proxies 11; the particular Proxy 11 which Web Scraper 10 uses is
selected by SPR 1 (id. at 8:13–15, 8:26–29). Moreover, SPR 1 selects that
particular proxy to “avoid[] using proxies with a higher error rate” by
“balanc[ing] proxies 11 in the list [of proxies] and prevent[ing] the proxies
from going down when the proxies are over-used or the Error rate 15 [from a
proxy] is increased” (id. at 3:65–66, 6:52–55).
Figure 2, reproduced below, is a sequence, or flow, diagram
illustrating “two primary functionalities” of SPR 1: first, selecting a proxy
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for Web Scraper 10 to use to request web data from Target 12; and second,
monitoring and updating the selected proxy’s service quality (id. at 4:45–46,
8:24–45).

Figure 2
Regarding SPR 1’s first primary functionality, shown in the top half
of Figure 2, the
use of the SPR 1 begins with the Client's Web scraping 10
software connecting to SPR 1 making a web scraping or other
data gathering request. Web Scraper 10 contacts SPR 1,
requesting a proxy for every request for the target content, e.g. a
web page. The process further comprises: SPR 1 accepting a
request for a proxy from a client's Web [S]craper 10 (step 25a),
[and] selects a proper proxy
(id. at 9:4–12; see id. at 8:26–29). SPR 1 “select[s] a proper proxy” from a
proxy provider “according to the currently valid operational settings”
(id. at 8:26–29, 9:17–23). Operational settings include, amongst other
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settings, a “proxy provider’s weights,” i.e., “provider utilization priorities”
(id. at 8:31–37, 9:17–20). Then, “SPR 1 send[s] the selected proxy's
identification and connectivity information to the client's Web [S]craper
10 . . . (step 25b)” (id. at 9:26–31). After Web Scraper 10 receives the
selected proxy information from SPR 1, Web Scraper 10 uses “the [selected]
proxy to perform a request (step 26a) and obtain[s] the target data through
the provided proxy (step 26b)” (id. at 9:26–34).
Regarding SPR 1’s second primary functionality, shown in the bottom
half of Figure 2, Web Scraper 10 captures “relevant quality/performance
metrics for the [previous] proxy session and collect[s] the performance and
availability information of the proxy” and sends that information to SPR 1
(id. at 9:34–40). Using that collected proxy performance information, SPR 1
performs “quality metrics analysis and dynamic modification of . . .
operations settings,” for example, “modifying the load directed at the
[proxy] provider” by “reducing or increasing the utilization threshold
relative to other [proxy] providers or disabling the [proxy] provider”
(id. at 9:46–48, 9:61–65). The utilization threshold for a proxy provider is
modified by calculating a weight for the proxy provider, which the proxy
provider’s utilization threshold is based on (id. at 13:65–14:2, 14:27–30).
For example “if one provider has a weight equal to 10, and the other
provider has a weight equal to 20, the proxy rotator should use the second
provider 66.6% of the time and the first provider 33.3% of the time,” and
those “percentages are the utilization thresholds of each provider”
(id. at 8:2–8). By “changing the utilization threshold of proxy providers that
is based at least in part upon usage history and availability of the proxies,”
the system purports to avoid “possible overuse of [a] proxy provider”
(id. at 15:21–25).
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Additionally, the ’948 Patent further explains, in its background that a
“proxy can encrypt the client's data so that the client's data becomes
unreadable in transit” (id. at 2:11–12). In some embodiments, “a Web
Scraper “obtain[s] a first proxy” and the Web Scraper “establish[es] an
encrypted connection with the target server through the first proxy, to
request and receive the content designated within the request through the
encrypted connection” (id. at 14:3–11).

E. Challenged Claims
Challenged claims 1, 10, and 17 are independent. Claim 1 is
reproduced below.
1. A computer-implemented method for dynamically
configuring a utilization threshold of a proxy provider, the
method comprising:
running a smart proxy rotator (SPR) on a computing
device connected to a network;
obtaining a proxy from the SPR, according to currently
valid SPR operational settings, by a Web Scraper to use for a
request for content;
establishing, by the Web Scraper, an encrypted connection
to a target server through the proxy;
requesting and obtaining the content designated within the
request, through the encrypted connection, by the Web Scraper;
providing, by the Web Scraper, performance and
availability information of the proxy to the SPR;
calculating, at the SPR, a weight for the proxy provider;
and
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dynamically configuring utilization threshold of the proxy
provider based on the calculation.
(Ex. 1001, 16:21–39).
F. References Relied Upon
Petitioner relies upon the following prior art references:
Reference Exhibit
Smith, US 2017/0155623 A1, published June 1, 2017 1006
Raja, US 2008/0225710 A1, published Sept. 18, 2008 1007
Shribman, US 9,241,044 B2, issued Jan. 19, 2016 1008
(Pet. 3).
Petitioner also relies on the Declaration of Dr. V. Thomas Rhyne
(Ex. 1003).
Patent Owner relies on the Declaration of Dr. James Olivier (Ex.
2003).
G. Prior Art and Asserted Grounds
Petitioner asserts that claims 1–20 are unpatentable on the following
grounds:
Claim Challenged 35 U.S.C. § References/Basis
1-9, 17–20 102 Smith
10–16 103 Smith, Raja
10, 14 102 Shribman
1–3, 7, 10, 12, 14, 17,
18 103 Shribman
1–3, 7, 10, 12, 14, 17,
18 103 Shribman, Raja
(Pet. 3).
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II. ANALYSIS
A. Level of Ordinary Skill in the Art
The level of skill in the art is a factual determination that provides a
primary guarantee of objectivity in an obviousness analysis (Al-Site Corp. v.
VSI Int’l Inc., 174 F.3d 1308, 1324 (Fed. Cir. 1999) (citing Graham v. John
Deere Co., 383 U.S. 1, 17–18 (1966); Ryko Mfg. Co. v. Nu-Star, Inc., 950
F.2d 714, 718 (Fed. Cir. 1991))).
Petitioner asserts that a person of ordinary skill in the art (“POSITA”)
in the technical field of the ’948 patent would have been an
individual who had either (1) a bachelor’s degree or equivalent
in the field of Electrical Engineering, Computer Engineering, or
Computer Science, or in an equivalent field that includes network
engineering as a topic of study, plus at least one year of industry
technical experience in the computer network field, such as
serving as an engineer for an Internet service provider
performing network design, development, or configuration tasks,
or as a software developer for network communications software
or related utility software, or (2) as of that time, had at least three
years of full-time technical experience as stated (or an equivalent
combination of academic study and work experience).
(Pet. 7 (citing Ex. 1003 ¶¶ 34– 35)).
Patent Owner does not contest Petitioner’s assertion (see generally
Prelim. Resp.).
The prior art itself demonstrates the level of ordinary skill in the
art at the time of the invention (see Okajima v. Bourdeau, 261 F.3d 1350,
1355 (Fed. Cir. 2001) (explaining that specific findings regarding ordinary
skill level are not required “where the prior art itself reflects an appropriate
level and a need for testimony is not shown”) (quoting Litton Indus. Prods.,
Inc. v. Solid State Sys. Corp., 755 F.2d 158, 163 (Fed. Cir. 1985))).
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Based on the present record and the disclosure in the ’948 Patent, and
in light of Petitioner’s definition of the level of ordinary skill in the art, we
determine an ordinarily skilled artisan is: an individual who had (1) a
bachelor’s degree or equivalent in the field of Electrical Engineering,
Computer Engineering, or Computer Science, or in an equivalent field that
includes network engineering as a topic of study (hereinafter, “technical
study”), plus at least one year of industry technical experience in the
computer network field, such as serving as an engineer for an Internet
service provider performing network design, development, or configuration
tasks, or as a software developer for network communications software or
related utility software, or (2) three years of full-time technical experience in
the field of electrical engineering, computer engineering, or computer
science or in an equivalent field that includes network engineering or
network communications software (hereinafter, “technical fields”), or (3) an
equivalent combination of academic study in technical study and work
experience in the technical fields.

B. Claim Construction
In an inter partes review filed after November 13, 2018, we construe
claim terms according to the standard set forth in Phillips v. AWH Corp.,
415 F.3d 1303, 1312–17 (Fed. Cir. 2005) (en banc) (37 C.F.R. § 42.100(b)
(2019)). Under Phillips, claim terms are afforded “their ordinary and
customary meaning” (Phillips, 415 F.3d at 1312). “[T]he ordinary and
customary meaning of a claim term is the meaning that the term would have
to a person of ordinary skill in the art in question at the time of the
invention” (id. at 1313). “Importantly, the person of ordinary skill in the art
is deemed to read the claim term not only in the context of the particular
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claim in which the disputed term appears, but in the context of the entire
patent, including the specification” (id.). An inventor may rebut that
presumption by providing a definition of the term in the specification with
reasonable clarity, deliberateness, and precision (In re Paulsen, 30 F.3d
1475, 1480 (Fed. Cir. 1994)). In the absence of such a definition, limitations
are not to be read from the specification into the claims (In re Van Geuns,
988 F.2d 1181, 1184 (Fed. Cir. 1993)).
Petitioner does not offer any particular claim construction for any
particular claim terms (see Pet. 8). Instead, Petitioner “gives the claim terms
their plain and ordinary meaning in light of the specification and prosecution
history as would have been read by a” person of ordinary skill in the art (id.).
Patent Owner proposes a number of claim terms to be construed. The
’948 Patent states “general terminology descriptions may be helpful . . . and
are intended to be interpreted in the broadest possible interpretation” and
further includes a description of the term “Smart Proxy Rotator” (Ex. 1001,
4:65–67, 5:4 (emphasis added)). Specifically, Patent Owner proses
definitions for the terms “Smart Proxy Rotator,” “Web Scraper,”
“proxy”/”proxies,” “Proxy Provider,” and “utilization threshold”
(Prelim. Resp. 14–21). We address those five proposed claim terms in turn
below.
1. “Smart Proxy Rotator”
Patent Owner contends the ’948 Patent “defines the term ‘Smart
Proxy Rotator’ as ‘a system coupled of separate components implementing a
specific method and responsible for collecting statistical data, proxy control,
rotation, maintenance, and reporting’” (Prelim. Resp. 15 (citing Ex. 1001,
5:4–7)).
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The ’948 Patent describes a Smart Proxy Rotator “as a system coupled
of separate components implementing a specific method and responsible for
collecting statistical data, proxy control, rotation, maintenance, and
reporting” (id. at 5:4–7).
In accordance with the Specification’s “general terminology
description,” we construe the term “Smart Proxy Rotator” as a system
coupled of separate components implementing a specific method and
responsible for collecting statistical data, proxy control, rotation,
maintenance, and reporting.

2. “Web Scraper”
Patent Owner contends that the ’948 Patent “defines the term ‘Web
Scraper’ as ‘an at least partly automated computer program or script that
gathers data or content from a network for the purpose of replicating content
or for data analysis’” (Prelim. Resp. 16 (citing Ex. 1001, 5:48–51)). Patent
Owner further asserts that the “Web Scraper is external to—is not part of—
the Smart Proxy Rotator” because the ’948 Patent describes the “Web
Scraper” is an “external system[]” (id. (citing Ex. 1001, 5:1–3)).
The ’948 Patent states “general terminology descriptions may be
helpful . . . and are intended to be interpreted in the broadest possible
interpretation” and further includes a description of the term “Web Scraper”
(Ex. 1001, 4:65–67, 5:48). The ’948 Patent discloses a Web Scraper “is
an at least partly automated computer program or script that gathers data or
content from a network for the purpose of replicating content or for data
analysis” (id. at 5:48–51).
In accordance with the Specification’s “general terminology
description,” we construe the term “Web Scraper” as “an at least partly
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automated computer program or script that gathers data or content from a
network for the purpose of replicating content or for data analysis.”

3. “proxy”
Patent Owner contends that the term “proxy” should be construed as
“a proxy server (a computer system or an application)—external to the
Smart Proxy Rotator System—opened for the client connection, that acts as
an intermediary for requests from clients seeking resources from other
servers” (Prelim. Resp. 20 (citing Ex. 2003 ¶ 54)).
The ’948 Patent states “general terminology descriptions may be
helpful . . . and are intended to be interpreted in the broadest possible
interpretation” and further includes a description of the term “Proxy” or
“Proxies” (Ex. 1001, 4:65–67, 5:64–67). The ’948 Patent describes a
“Proxy” as “a proxy server (a computer system or an application) opened for
the client connection, that acts as an intermediary for requests from clients
seeking resources from other servers” (id. at 5:64–67).
In accordance with the Specification’s “general terminology
description,” we construe the term “Proxy” as “a proxy server (a computer
system or an application) opened for the client connection that acts as an
intermediary for requests from clients seeking resources from other servers.”

4. “Proxy Provider”
Patent Owner contends that the ’948 Patent “defines the term as ‘the
party providing the actual proxy as a service’” (Prelim. Resp. 20 (citing
Ex. 1001, 6:16–17)).
The ’948 Patent states “general terminology descriptions may be
helpful . . . and are intended to be interpreted in the broadest possible
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interpretation” and further includes a description of the term “Proxy
Provider” (Ex. 1001, 4:65–67, 6:16–19). The ’948 Patent describes a “Proxy
Provider” as “the party providing the actual proxy as a service. Proxy
services shall mean any proxy server that acts as an intermediary for
requests from clients seeking resources from other servers” (id. at 6:16–19).
In accordance with the Specification’s “general terminology
description,” we construe the term “Proxy Provider” as “a server party
providing an actual proxy as a service.”

5. “utilization threshold”
Patent Owner contends that the term “utilization threshold” should be
construed as “‘the portion of all proxy requests received by the SPR during a
time period that the SPR will refer to a particular proxy provider,’ which
may be equal to the weight assigned to that particular proxy provider divided
by the sum of weights assigned to all proxy providers during the same time
period” (Prelim. Resp. 20 (citing Ex. 2003 ¶ 56)). Patent Owner’s definition
requiring a “utilization threshold” to be a “portion of all proxy requests
received by the SPR during a time period that the SPR will refer to a
particular proxy provider” is too narrow.
The ’948 Patent does not expressly define the term “utilization
threshold,” and, instead, describes utilization thresholds using an example
(id. at 8:1–8). The ’948 Patent states
[o]ne of the usage examples can be the following: if one provider
has a weight equal to 10, and the other provider has a weight
equal to 20, the proxy rotator should use the second provider
66.6% of the time and the first provider 33.3% of the time, when
no changes to the default providers’ weights have been
introduced. These percentages are the utilization thresholds of
each provider.
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(id. (emphasis added)). That is, the ’948 Patent suggests that a utilization
threshold is a goal amount of use, not an actual amount of use. A utilization
threshold may represent a desired maximum percentage (i.e., proportion), of
proxy requests to be referred to a particular proxy provider.
Based on the Specification’s use of a “utilization threshold,” we
construe the term to mean “a maximum percentage of use assigned to a
particular proxy provider that is equal to a weight for the particular proxy
provider divided by the sum of respective weights assigned to all proxy
providers during the same time period.”

6. Additional Terms
After considering the parties’ assertions and the evidence before us,
we determine it is unnecessary to construe expressly any additional claim
terms in determining whether to institute trial (see Vivid Techs., Inc. v. Am.
Sci. & Eng’g, Inc. 200 F.3d 795, 803 (Fed. Cir. 1999) (“only those terms
need be construed that are in controversy, and only to the extent necessary to
resolve the controversy”)).

C. Asserted Anticipation by Smith
Petitioner contends Smith anticipates claims 1–9 and 17–20 (Pet. 13–
31).
1. Smith (Ex. 1006)
Smith is a US patent application publication titled “Selecting
Proxies,” and published June 1, 2017 (Ex. 1006, codes (43, 54)). Smith
describes a system for “selecting proxies” which “facilitate communication
between an external device and a computing device behind [a] firewall”
(id. ¶ 12, code (57)). Figure 3, reproduced below, is a block diagram
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illustrating a “computing device for selecting proxies, where the computing
device is in communication with a plurality of proxies and computing
devices through a firewall” (id. ¶ 43).

Figure 3
(id. at Fig. 3). As shown in Figure 3, “computing device 200 may
communicate with computing devices [350A–350N] via proxies [300A–
300N] through a firewall 250” (id.). Further, “each proxy device may
communicate with some or all of the computing devices [350A–350N]”
(id. ¶ 44). “For example, proxy 300A may be used to communicate with
computing devices 350A, 350B, 350C, 350D and 350N” and “proxy 300B
may be used to communicate with computing devices 350A, 350B, 350C,
and 350D,” etc. (id.).
Furthermore, computing device 200 includes a “series of engines”
used to select proxies (id. ¶ 37). Figure 2, reproduced below, is a block
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diagram of computing device 200, showing the “engines” used for selecting
proxies (id. ¶¶ 4, 36–37).

Figure 2
Device communication engine 220, shown within computing device 200,
“may determine a device to which to send communication” through the
firewall and via a proxy (id. ¶ 38; see id. ¶ 18). Further, “[p]roxy
availability determination engine 230 may determine a set of proxies
available to communicate with the device through the firewall” (id. ¶ 39; see
id. ¶¶ 19–20). Still further, “[p]roxy label engine 240 may determine a set of
success labels for the set of proxies” (id. ¶ 40; see id. ¶¶ 21–24). Success
labels “may comprise information indicating that a predetermined number of
previous attempts to communicate with the device were successful, were
unsuccessful, were attempted but blocked due to external reasons, and/or
were otherwise handled” (id. ¶ 21). Even further,
“[p]roxy grouping engine 250 may group the set of proxies into
a plurality of proxy subsets based on the success labels
determined for the set of proxies such that a first subset of proxies
comprise a plurality of proxies each having the first success label
and such that each subset of proxies is associated with a
respective success label”
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(id. ¶ 41; see id. ¶¶ 25–30). And,
[p]roxy selection engine 260 may select a first subset of proxies
to communicate with the device based on the success label
associated with the first subset of proxies, and select a first proxy
from the selected first subset of proxies, associate each subset of
proxies with a respective weight, and select the first subset of
proxies based on a first weight associated with the first subset of
proxies
(id. ¶ 42; see id. ¶¶ 31–35). The respective “weight[s] may represent a
percentage based on which a proxy subset should be selected” (id. ¶ 33).
Smith also describes that its proxy selection engine “revises the
weights associated with each proxy subset” (id.; see id. ¶ 57). In an
example, “the weights associated with each proxy” are revised “based upon
the success of the attempts to use proxies from each subset of proxies”
(id. ¶ 33). Accordingly, after “a predetermined number of consecutive
unsuccessful attempts to communicate with the device using a proxy from a
particular proxy subset,” the proxy selection engine “may reduce the weight
associated with that subset and re-allocate the weights associated with the
other proxy subsets” (id.; see id. ¶ 57).

2. Independent Claim 1
Petitioner contends Smith anticipates independent claim 1 (Pet. 13–
22).
a) Alleged Failure to Disclose: Web Scraper
Petitioner contends Smith discloses “obtaining a proxy from the SPR,
according to currently valid SPR operational settings, by a Web Scraper to
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use for a request for content” (Pet. 15–18). Petitioner annotates Figure 2, “a
block diagram of an example computing device 200 for selecting proxies”:

(Pet. 15 (citing Ex. 1006, Fig. 2)). Figure 2 of Smith discloses computing
device 200 which includes processor 210, device communication engine
220, proxy availability determination engine 230, proxy label engine 240,
proxy grouping engine 250, and proxy selection engine 260 (Ex. 1006, Fig.
2).
Petitioner asserts Smith’s “device communication engine 220, the
proxy availability determination engine 230, the proxy label engine 240,
and/or the proxy grouping engine 250, all illustrated in Fig. 2 of Smith . . .
collectively correspond to the claimed Web Scraper” (Pet. 17 (citing
Ex. 1003 ¶ 60)). Petitioner further asserts that “device communication
engine 220 may . . . be used for requesting content” (id. (citing Ex. 1003
¶ 60)).
Petitioner also annotates Figure 3, “a block diagram of an example
computing device for selecting proxies in communication with a plurality of
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(Pet. 16 (citing Ex. 1006, Fig. 3)). As shown in Figure 3 as annotated by
Petitioner, Smith’s system includes computing device 200 which includes
the Web Scraper and the SPR, firewall 250, proxies 300A–300N
(surrounded by a red box labeled “Proxy”), and target servers 150A–150N
(surrounded by a red box labeled “Target Server”) (Ex. 1006, Fig. 3). Thus,
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Petitioner asserts computing device 200 provides both a “Web Scraper” and
an “SPR,” as shown in Petitioner’s annotation of Figures 2 and 3 of Smith.
Petitioner points to Smith’s description that “[d]evice communication
engine 220 may determine a device to which to send communications”;
“[p]roxy availability determination engine 230 may determine a set of
proxies available to communicate with the device”; “[p]roxy label engine
240 may determine a set of success labels for the set of proxies, wherein a
success label for an individual proxy comprises information related to
communicating with the device via the individual proxy”; and
proxy grouping engine 250 may group the set of proxies into a
plurality of proxy subsets based on the success labels determined
for the set of proxies, such that a first subset of proxies comprise
a plurality of proxies each having the first success label and such
that each subset of proxies is associated with a respective success
label
(Ex. 1006 ¶¶ 38–41).
Petitioner asserts Smith discloses “communication device 200 may
communicate with computing devices 350A, 350B, 350C, 350D, . . ., 350N
[(target servers)] via proxies 300A, 300B, etc.” (Pet. 18–19 (quoting Ex.
1006 ¶ 43)). Petitioner further asserts that “communication may be sent to
the device via the selected proxy” (id. at 19 (quoting Ex. 1006 ¶ 55; Ex.
1003 ¶ 63)).
Patent Owner argues Petitioner has not asserted any of Smith’s
collective engines 220, 230, 240, and 250, on which Petitioner relies on
discloses the recited web scraper (Prelim. Resp. 28). In particular, Patent
Owner contends Smith’s engines do not disclose “an at least partly
automated computer program or script that gathers data or content from a
network for the purpose of replicating content or for data analysis” and
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this feature (id. at 28 (quoting Ex. 1001, 5:48–51)). According to Patent
Owner, Petitioner asserts “Smith also discloses ‘a request by the computing
device 100 to communicate with a device” (id. (quoting Ex. 1006 ¶ 18)).
Petitioner has not shown that engines 220, 230, 240, and 250, asserted
by Petitioner as disclosing the recited Web Scraper, perform the step of
“requesting and obtaining the content designated within the request” recited
in claim 1. In particular, Petitioner has not reasonably shown that Smith
discloses that its device communication engine 220 (which, as discussed
above, Petitioner asserts is a component of Smith’s “Web Scraper”) requests
content (see Pet. 17). Petitioner asserts Smith discloses “a request by the
computing device 100 to communicate with a device” and, that, as such,
“device communication engine 220 may therefore be used for requesting
content” (id. (citing Ex. 1006 ¶ 18); Ex. 1003 ¶ 60)). But, Petitioner’s
assertion that a computing device’s (i.e., computing device 100) request for
content from another device somehow discloses a particular component of
the computing device 100, requests content (i.e., device communication
engine 220), is unsupported by the record.
More specifically, Petitioner relies on paragraphs 43 and 55 of Smith
as disclosing this feature (Pet. 19). Smith’s paragraph 43 describes Figure 3
–– “an example computing device for selecting proxies, where the
computing device is in communication with a plurality of proxies and
computing devices through a firewall” (Ex. 1006 ¶ 43). Smith further
describes Figure 3 discloses “computing device 200 may communicate with
computing devices 350A, 350B, 350C, 350D, . . ., 350N via proxies 300A,
300B, . . . 300[N] through a firewall 250” (Ex. 1006 ¶ 43; Pet. 19).
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Paragraph 55 of Smith describes operation 450 of Figure 4 ––
“communication may be sent to the device via the selected proxy” (Ex. 1006
¶ 54; Pet. 19).
We further find Smith describes “[d]evice communication engine 220
may determine a device to which to send communication” (Ex. 1006 ¶ 38) or
“may determine a device . . . based on a request by the computing device
100 to communicate with a device” (id. ¶ 18). None of these disclosures of
Smith, however, discloses any of the engines, which are relied upon as
describing the recited Web Scraper, “requesting and obtaining the content
within the request,” as recited in claim 1. More particularly, the
identification of a device (which content requests will be sent to) is not itself
“requesting and obtaining the content within the request,” as recited in claim
1. Rather, the identification of a device is merely the location from which
content will be requested. Petitioner has not shown where Smith describes
device communication engine 220 itself, or any of the relied-upon engines,
taken alone or in combination, requests and obtains content (see Pet. 17).
Even if, as Petitioner and its expert assert, device communication engine 220
“may” request content (Pet. 17; Ex. 1003 ¶ 60), the possibility that device
communication engine 220 could request content is not enough to show that
“each and every element as set forth in the claim is found” in Smith
(Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 628, 631, 2
USPQ2d 1051, 1053 (Fed. Cir. 1987); see Bettcher Indus., Inc. v. Bunzl
USA, Inc., 661 F.3d 629, 639 (Fed. Cir. 2011) (“Inherency, however, may
not be established by probabilities or possibilities”) (citations omitted))).
Thus, in light of the current record, Petitioner has not sufficiently
shown Smith discloses the recited “requesting and obtaining the content
designated within the request, . . . by the Web Scraper,” as recited in claim 1.
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b) Conclusion
Based on the record before us, we determine Petitioner’s contentions,
in view of the supporting testimony presented, do not show sufficiently
Smith discloses the recited invention of claim 1.

3. Independent Claim 17
Petitioner contends Smith anticipates independent claim 17 (Pet. 28–
30). Petitioner’s analysis here makes similar contentions and relies on
similar disclosures as Petitioner’s analysis in claim 1 (see id. at 13–22, 28–
30). For example, Petitioner relies on Smith’s device communication
engine 220 to disclose “a Web Scraper . . . to request content from a target
server” (Pet. 29–30 (citing Ex. 1003 ¶ 86)). For the same reasons discussed
above, Petitioner has not reasonably shown that device communication
engine 220 (or the collection of device communication engine 220, proxy
availability determination engine 230, proxy label engine 240, and/or the
proxy grouping engine 250) discloses “a Web Scraper . . . to request content
from a target server.”
Accordingly, Petitioner has not sufficiently shown Smith discloses
claim 17.

4. Dependent Claims 2–9 and 18–20
Petitioner contends Smith discloses claims 2–9 and 18–20 (Pet. 22–
31).
Because Petitioner has not shown that Smith discloses claims 1
and 17, Petitioner has not shown that Smith discloses claims 2–9 and 18–20,
which depend from claims 1 and 17.
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5. Conclusion
Based on the record before us, we determine Petitioner’s proffered
arguments, evidence, and supporting testimony do not establish a reasonable
likelihood that Petitioner would prevail in showing that Smith anticipates
claims 1–9 and 17–20.

D. Asserted Obviousness Over Smith and Raja
Petitioner contends claims 10–16 are obvious over the combination of
Smith and Raja (Pet. 31–38).

1. Raja (Ex. 1007)
Raja is a US patent application publication titled “Systems and
Methods for Load Balancing Based on User Selected Metrics,” and
published September 18, 2008 (Ex. 1007, codes (43), (54)). By way of
background, Raja explains that “a user on a client may request to access a
service, such as a web server;” multiple servers can be used to provide that
“service in order to meet the demand and load from a volume of users
accessing the service” (id. ¶ 2). Further, a load balancer “manage[s] access
to the multiple servers and direct[s] client requests to a suitable server based
on load” and “distributes the load across multiple servers” (id.). Raja aims
to provide “a load balancing technique in which load balancing decisions
can be made based on metrics known by another device monitoring such
metrics” (id. ¶ 5). Figure 1A of Raja illustrates an exemplary network
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environment that Raja’s load balancing technique is used in, and is
reproduced below:

(id. ¶ 48). As shown in Figure 1A, “one or more clients 102a–102n” are “in
communication with one or more servers 106a–106n,” the communication
provided “via one or more networks 104, 104’” as well as “via appliance
200” (id.). Servers 106 may be web servers providing web services, and, in
one embodiment, “server 106a receives requests from the client 102,
forwards the requests to a second server 106b and responds to the request by
the client 102 wit h a response to the request from the server 106b”
(id. ¶¶ 57, 114 (“a server 106 may provide an http service 270”)). That is,
server 106a acts as an intermediary between requesting client 102 and
request servicing server 106b.
Furthermore, appliance 200 “provides load balancing of servers 106 in
responding to requests from clients 102” (id. ¶ 65). Appliance 200
determines a load for services provided by servers 106 based on metrics
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collected by appliance 200, e.g., “information on a number of connections,
sessions or clients of the service 270” or “information on any thresholds of
the service 270 or server 106, such as a threshold identifying a maximum
number of sessions or clients” (id. ¶¶ 172, 175). Further, “appliance 200
may use a weight . . . and a threshold . . . for each of the metrics used in the
determination of the load” (id. ¶ 175). “[I]f a threshold of a metric of a
service . . . has been exceeded, the appliance may, in response to the
threshold being exceeded, redirect the client making the request to another
resource” (id. ¶ 178). Appliance 200 “continue[s] to monitor metrics in
view of the thresholds . . . to dynamically manage load balancing and
directing client requests to a suitable or appropriate resource” (id. ¶ 252).
In addition, appliance 200 provides encryption via an encryption
engine 234 (id. ¶¶ 95, 106). “[E]ncryption engine 234 encrypts and decrypts
network packets, or any portion thereof, communicated via the appliance
200” (id. ¶ 106). Further, “encryption engine 234 uses a tunneling protocol
to provide a virtual private network between a client 102a–102n and a server
106a–106n” (id. ¶ 106).

2. Independent Claim 10
Petitioner contends the combination of Smith and Raja renders
independent claim 10 obvious (Pet. 31–35).
a) Alleged Failure to Teach: “wherein the content is unreadable to a
Smart Proxy Rotator (SPR)”
Petitioner contends the combination of Smith and Raja teaches
“wherein the content is unreadable to a Smart Proxy Rotator (SPR) due to
network transport layer or application layer encryption” (Pet. 33–34 (citing
Ex. 1007 ¶¶ 51, 57, 106, Fig. 1a; Ex. 1003 ¶ 96)). In particular, Petitioner
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points out that Raja describes a “a load balancing appliance 200 arranged
between clients 102 and servers 106” and “an encryption mechanism
implemented by appliance 200 in which ‘the encryption engine 234 uses a
tunneling protocol to provide a virtual private network between a client
102a–102n and a server 106a–106n” (id. at 33 (citing Ex. 1007 ¶¶ 51, 57,
106); Ex. 1006 ¶ 96)). Petitioner asserts, “[i]t would have been obvious to a
[person having ordinary skill in the art] to combine the encryption
mechanism of Raja into Smith, e.g., to make content unreadable to proxy
selection engine 260 of Smith corresponding to Smith’s SPR, since Smith
involves selection of devices based on load balancing just as Raja does”
(id. at 34 (citing Ex. 1003 ¶ 96)).
Patent Owner contends Petitioner’s stated motivation for the
combination is “deficient” (Prelim. Resp. 38). Specifically, Patent Owner
argues “Petitioner provides no reason that a POSITA would have found the
proposed modification with Raja to be beneficial or advantageous for
turning to Raja” (id.). According to Patent Owner, “Petitioner[‘]s
modifications assume –– without any support –– that any components in a
network that performs load balancing are simply interchangeable with the
components in any other network that contemplates load balancing” (id.
at 39).
Obviousness requires “a reason that would have prompted a person of
ordinary skill in the relevant field to combine the elements in the way the
claimed new invention does” (KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007)). We agree that Petitioner has not articulated adequate
motivation with rational underpinning, for the combination of Smith and
Raja. Specifically, Petitioner “combine[s] the encryption mechanism of
Raja into Smith, e.g., to make content unreadable to proxy selection
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engine 260 of Smith corresponding to Smith’s SPR, since Smith involves
selection of devices based on load balancing just as Raja does” (Pet. 34).
Petitioner merely states an ordinarily skilled artisan would have found it
obvious “to combine the encryption mechanism of Raja into Smith, e.g., to
make content unreadable to proxy selection engine 260 of Smith
corresponding to Smith’s SPR, since Smith involves selection of devices
based on load balancing just as Raja does” (id. at 34 (citing Ex. 1003 ¶ 96)).
However, neither Petitioner nor its expert explains sufficiently what the
actual benefit or improvement would be by incorporating encryption into
communications with Smith’s SPR (see id.; see also Ex. 1003 ¶ 96). In
particular, although Smith and Raja both describe “selection of devices
based on load balancing,” Petitioner has not explained how the encryption
features of Raja applied to Smith’s SPR, are tied to, or provide, load
balancing improvements (see generally Pet.; Ex. 1003 ¶ 96). Indeed,
Petitioner has not explained sufficiently why the encryption features of Raja
are any type of improvement at all to Smith’s system (see generally Pet.).
Further, Petitioner has not explained sufficiently why an ordinarily skilled
artisan would include encryption of content to the SPR such that the content
is unreadable to the SPR, but not to the other engines of Smith (id.).
Petitioner further contends “such a combination would have been a
matter of applying a known technique to a known device ready for
improvement to yield predictable results” (id. at 34 (citing Ex. 1003 ¶ 96)).
Again, however, Petitioner’s assertion and duplicative declaration by Dr.
Rhyme, fail to explain sufficiently how this combination was an
improvement and why an ordinarily skilled artisan would have been
motivated to make the content unreadable to the SPR. Petitioner has the
burden to demonstrate “that a skilled artisan would have been motivated to
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combine the teachings of the prior art references to achieve the claimed
invention, and that the skilled artisan would have had a reasonable
expectation of success in doing so” (Intelligent Bio-Sys., Inc. v. Illumina
Cambridge Ltd., 821 F.3d 1359, 1367–1368 (Fed. Cir. 2016) (citations
omitted)).
Petitioner has not articulated reasoning with a rational underpinning
as to why an ordinarily skilled artisan would have been motivated to
incorporate Raja’s encryption features into Smith’s load balancing system to
achieve content that is unreadable to the SPR of the computing device.
Accordingly, based on the record before us, we determine Petitioner has not
sufficiently shown that a person having ordinary skill in the art would have
been motivated to combine Smith and Raja in the manner suggested by
Petitioner.
b) Conclusion
Based on the record before us, we determine Petitioner’s contentions,
in view of the supporting testimony presented, do not support combining
Smith and Raja.

3. Dependent Claims 11–16
Petitioner contends Smith discloses claims 11–16 (Pet. 35–37).
Because Petitioner has not shown that the combination of Smith and Raja
teaches claim 10, Petitioner has not shown that claims 11–16 would have
been obvious over the combination of Smith and Raja.

4. Conclusion
Based on the record before us, we determine Petitioner’s proffered
arguments, evidence, and supporting testimony do not establish a reasonable
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likelihood that Petitioner would prevail in showing that claims 10–16 would
have been obvious over Smith and Raja.

E. Asserted Anticipation by Shribman
Petitioner contends Shribman anticipates claims 10 and 14 (Pet. 38–
46).
1. Shribman (Ex. 1008)
Shribman is a patent titled “System and Method for Improving
Internet Communication by Using Intermediate Nodes,” and issued January
19, 2006 (Ex. 1008, codes (45), (54)). Shribman describes a technique “for
fetching a content from a web server to a client device . . . using tunnel
devices serving as intermediate devices. The client device access an
acceleration server to receive a list of available tunnel devices” (id. at code
(57)). Figure 5, reproduced below, is a schematic which illustrates client
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devices, tunnel devices, acceleration servers, and data servers networked
together over the Internet (id. at 76:32–33, 81:34–41).

As shown in Figure 5, client device #1 31a, client device #2 31b, data server
#1 22a, data server #2 22b, tunnel device #1 33a, tunnel device #2 33b,
tunnel device #3 33c, and acceleration server 32 are networked and
communicate over the Internet (id. at 81:39–41). Further, client devices 31a,
31b access data servers 22a, 22b using one or more of tunnel devices 33a,
33b “under the management and control of an acceleration server 32”
(id. at 81:34–39).
In one example of a client device requesting content from data servers
using tunnel devices as intermediaries, “client device #1 31a determines that
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external content from a data server is required” (id. at 83:46–37; see id. Fig.
5b). Figure 5b is a timing chart showing the messages exchanged between
devices for the client to receive content from a data server, and is reproduced
below (id. at 76:36–38).

Client device 31a sends a ‘Content Request’ message 56g to selected tunnel
device #1 33a which, in turn, sends a ‘Content Request’ message 56h to the
data server #22a (id. at 83:48–57; see id. Fig. 5b). Data server 22a prepares
the requested content, sends the requested content back to tunnel device
#33a in a ‘Send Content’ message 56i, tunnel device 33a in turn sends the
requested content in ‘Send Content’ message 56j to the client device 31a
(id. at 81:57–65; see id. Fig. 5b).
As noted previously, an acceleration server may select which tunnel
device — e.g., tunnel device #1 33a, tunnel device #2 33b, or tunnel device
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#3 33c — acts as an intermediary between client device and data server
(id. at 89:15–20). Further, the “selection of the tunnel device (or devices) to
be used, or the priorities assigned to them, may be based on the available
communication attributes or their history” (id. at 89:61–63). In particular,
the “selection may be based on a past performance of the tunnel devices,
such as information relating to former transactions involving these tunnel
devices” (id. at 96:55–61). Such past performance of the tunnel devices is
stored in a transaction log, which the client device prepares and sends to the
acceleration server (id. at 96:19–27, Fig. 5b).
Additionally, Shribman explains, in its Background section, that
“[e]ncryption based mechanisms are commonly end-to-end processes
involving only the sender and the receiver, where the sender encrypts the
plain text message . . . making it unreadable to anyone, except the receiver”
(id. at 25:34–38). Furthermore, Shribman explains that “[o]nion routing
(OR) is a technique for anonymous communication over the Internet or any
other computer network” in which “[m]essages are repeatedly encrypted and
then sent through several network nodes” (id. at 27:26–29). The onion
routing encryption technique “prevents these intermediary nodes from
knowing the origin, destination, and contents of the message” (id. at 27:32–
33).
2. Independent Claim 10
Petitioner contends Shribman anticipates independent claim 10
(Pet. 38–45).
(1) Alleged Failure to Disclose: “calculate and configure utilization
thresholds of a plurality of proxy providers”
Petitioner contends Shribman discloses “calculate and configure
utilization thresholds of a plurality of proxy providers by evaluating proxy
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performance and availability information received from the Web Scraper”
(Pet. 44–45 (citing Ex. 1008, 89:61–90:24; Ex. 1003 ¶ 112); see id. at 38–39
(citing Ex. 1008, 89:61–63; Ex. 1003 ¶ 107)). Specifically, Petitioner
asserts, “[f]or example, Shribman teaches that ‘[t]he selection of the tunnel
device (or devices) to be used, or the priorities assigned to them, may be
based on the available communication attributes or their history’” (id. at 44–
45 (quoting Ex. 1008, 89:61–90:24 (emphases added by Petitioner); citing
Ex. 1003 ¶ 112)). From this one statement, Petitioner concludes “[t]hus,
Shribman teaches to calculate and configure utilization thresholds (e.g.,
priorities assigned) of a plurality of proxy providers (e.g., tunnel devices) by
evaluating proxy performance and availability information (e.g., transaction
log) received from the Web Scraper (e.g., client device #1 31a)” (id. at 45
(citing Ex. 1003 ¶ 112)). Dr. Rhyne, Petitioner’s declarant, states the same
conclusion, “Shribman teaches to calculate and configure utilization
thresholds (e.g., priorities assigned) of a plurality of proxy providers (e.g.,
tunnel devices) by evaluating proxy performance and availability
information (e.g., transaction log) received from the Web Scraper (e.g.,
client device #1 31a)” (Ex. 1003 ¶ 112). No cites to Shribman or
explanation as to how priorities assigned discloses utilization thresholds is
provided (see generally Pet.; see also Pet. 38 (setting forth how Shribman
discloses the preamble of claim 10, relying on the same disclosure of
Shribman)).
Patent Owner contends Petitioner fails to show Shribman discloses
“utilization thresholds” for the plurality of Proxy Providers (id. at 45–46).
More specifically, Patent Owner contends, “Shribman’s priorities operate as
rankings which are used to select between multiple tunnel devices and do
not function as thresholds” and, as a result, “Shribman fails to disclose its
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priorities are used as thresholds” (Prelim. Resp. 46 (citing Ex. 1008, 91:38–
41; Ex. 2003 ¶ 96)).
We agree with Patent Owner that Shribman fails to disclose a
utilization threshold. Shribman discloses:
The selection of the tunnel device (or devices) to be used, or the
priorities assigned to them, may be based on the available
communication attributes or their history. For example, based
on the costs associated with the usage of a network, the higher
cost network may have lower priority and less used than lower
cost or free network. In another example, a high quality network,
such as having a higher available bandwidth or throughput, lower
communication errors or packet loss, lower hops to destination,
or lower transfer delay time, is having higher priority that a lower
quality network.
(Ex. 1008, 89:61–90:3 (emphasis added); Pet. 45; Ex. 1003 ¶ 112). The
remaining relied upon disclosure of Shribman describes “indicators or
measures associated with the communication channel associated with a
network interface, and may be based on, use, or include the methodology
and schemes described” in references cited and incorporated by reference
(Ex. 1008, 90:3–24; Pet. 45).
A priority is not a utilization threshold. Rather, as set forth by Patent
Owner (Prelim. Resp. 46), the disclosed priority is a ranking of devices. A
threshold is a level, point, or value. Thus, a priority is a precedence in
position –– it does not set a threshold for utilization of the devices.
Petitioner has not explained sufficiently how Shribman’s priority discloses
the recited “utilization threshold” (see generally Pet.). Nor does Petitioner’s
declarant provide any additional explanation (see Ex. 1003 ¶¶ 112–113).
Therefore, Petitioner has not proffered sufficient evidence or
argument to show Shribman discloses “calculate and configure utilization
thresholds of a plurality of proxy providers,” as recited in claim 10.
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(2) Conclusion
Based on the record before us, we determine Petitioner’s contentions,
in view of the supporting testimony presented, do not support Shribman
discloses claim 10.

3. Dependent Claim 14
Petitioner contends Shribman discloses claim 14 which depends from
independent claim 10 (Pet. 45–46). Based on the reasons set forth supra,
and on the record before us, Petitioner has not sufficiently shown Shribman
discloses the elements of claim 14.

4. Conclusion
Based on the record before us, we determine Petitioner’s proffered
arguments, evidence, and supporting testimony do not establish a reasonable
likelihood that Petitioner would prevail in showing that Shribman anticipates
claims 10 and 14.

F. Asserted Obviousness over Shribman
Petitioner contends claims 1–3, 7, 10, 12, 14, 17, and 18 are obvious
over Shribman (Pet. 46–61).
1. Independent Claim 1
Petitioner contends claim 1 is obvious over Shribman (Pet. 47–55).
a) Alleged Failure to Teach: “dymamically configuring utilization
threshold of the proxy provider based on the calculation”
Petitioner contends Shribman teaches “dynamically configuring
utilization threshold of the proxy provider based on the calculation”
(Pet. 54–55 (citing Ex. 1008, 89:61–90:24; Ex. 1003 ¶ 126; Ex. 1011, 1:1–
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49)). Again, Petitioner relies on Shribman’s disclosure that “[t]he selection
of the tunnel device (or devices) to be used, or the priorities assigned to
them, may be based on the available communication attributes or their
history” (Pet. 54 (quoting Ex. 1008, 89:61–90:24 (emphases added by
Petitioner); citing Ex. 1003 ¶ 126)).
Petitioner further contends “[w]eighting is a well-known technique for
making selections” (id. (citing Ex. 1011, 1:1–49)). Petitioner then
concludes, “[i]n view of Shribman, it would have been obvious to a [person
of ordinary skill in the art] to dynamically configure the priorities assigned
to selection of tunnel devices based on a calculation of a weight[s] for
selecting tunnel devices” (Pet. 54 (citing Ex. 1003 ¶ 126)). Petitioner further
concludes, “[t]hus, in view of Shribman, it would have been obvious to a
[person of ordinary skill in the art] to dynamically (e.g., based on the
available communication attributes or their history) configure a utilization
threshold (e.g., priorities assigned) of the proxy provider (e.g., tunnel
devices) based on the calculation” (id. at 54–55 (citing Ex. 1003 ¶ 126)).
Petitioner’s declarant, Dr. Rhyne, does not provide any additional
explanation (Ex. 1003 ¶¶ 126–127).
Patent Owner contends, referencing its previous arguments, Shribman
fails to teach “a utilization threshold” for a proxy provider (Prelim. Resp.
48). Patent Owner additionally contends Petitioner’s modification of
Shribman is “deficient” (Prelim. Resp. 49–51; see id. at 52–54).
For the reasons set forth supra, we determine Petitioner has not shown
sufficiently that Shribman discloses a “utilization threshold.” Additionally,
Petitioner’s reasoning for modifying Shribman to teach “dynamically
configuring utilization threshold” is not persuasive. In particular, Petitioner
fails to articulate reasoning with a rationale underpinning, as to why an
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ordinarily skilled artisan would have found dynamically configuring
utilization threshold of a proxy provider obvious in light of Shribman’s
teachings (see id. at 54–55). Rather, Petitioner merely recites that it would
have been obvious and then recites the claim limitation (id.). Accordingly,
Petitioner has not persuaded us an ordinarily skilled artisan would have
found it obvious to “dynamically configur[e] utilization threshold of the
proxy provider based on the calculation,” as recited in claim 1.
b) Conclusion
Based on the record before us, we determine Petitioner’s proffered
arguments, evidence, and supporting testimony do not establish a reasonable
likelihood that Petitioner would prevail in showing that claim 1 would have
been obvious over Shribman.

2. Independent Claim 10
Relying on its discussion of independent claim 1, Petitioner contends
independent claim 10 is obvious over Shribman (Pet. 58). As set forth
supra, Petitioner has not shown sufficiently that Shribman teaches a
“utilization threshold,” and, accordingly, a computing device to “calculate
and configure utilization thresholds of a plurality of proxy providers,” as
recited in claim 10.

3. Independent Claim 17
Petitioner contends independent claim 17 is obvious over Shribman
(Pet. 58–61). Petitioner’s analysis here makes similar contentions and relies
on similar disclosures as Petitioner’s analysis in claim 1 (see id. at 47–55,
58–61). As set forth supra, Petitioner has not shown sufficiently that
Shribman teaches a “utilization threshold,” and accordingly, teaches
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“dynamically configur[ing] utilization threshold of the proxy provider based
on the weight calculated,” as recited in claim 17.

4. Dependent Claims 2, 3, 7, 10, 12, 14, and 18
Petitioner contends Smith discloses claims 2, 3, 7, 12, 14, and 18
(Pet. 55–58, 61). For the reasons set forth supra, Petitioner has not shown
sufficiently that Shribman teaches a “utilization threshold.” Thus, Petitioner
has not shown sufficiently that Shribman teaches dependent claims 2, 3, 7,
10, 12, 14, and 18.

5. Conclusion
Based on the record before us, we determine Petitioner’s proffered
arguments, evidence, and supporting testimony do not establish a reasonable
likelihood that Petitioner would prevail in showing that Smith anticipates
claims 1–3, 7, 10, 12, 14, 17, and 18.

G. Asserted Obviousness over Shribman and Raja
Petitioner contends claims 1–3, 7, 10, 12, 14, 17, and 18 are obvious
over the combination of Shribman and Raja (Pet. 61–67).
1. Independent Claim 1
Petitioner contends claim 1 is obvious over the combination of
Shribman and Raja (Pet. 61–64).
a) Alleged Improper Combination
Petitioner contends
it would have been obvious to a [person having ordinary skill in
the art] to combine the teachings of Raja with the knowledge of
a [person having ordinary skill in the art] into Shribman to
calculate weights for a proxy provider (e.g., tunnel
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devices) at the SPR (e.g., acceleration server 32) since Shribman
involves selection of devices based on load balancing just as Raja
does
(Pet. 62–63 (citing Ex. 1003 ¶ 144)). Petitioner further contends
it would have been obvious to a [person having ordinary skill in
the art] to combine the teachings of Raja with the knowledge of
a [person having ordinary skill in the art] into Shribman to
dynamically configure a utilization threshold of the proxy
provider (e.g., tunnel devices) based on calculations of weights
since Shribman concerns the selection of devices based on load
balancing, just as Raja does
(id. at 64 (citing Ex. 1003 ¶ 145)).
Patent Owner contends Petitioner’s motivation for the combination of
Shribman and Raja is “[d]eficient” (Prelim. Resp. 56–57).
Based on the record before us, Petitioner has not persuaded us an
ordinarily skilled artisan would have found it obvious to combine the
teachings of Raja with those of Shribman. In particular, Petitioner has not
articulated sufficiently why an ordinarily skilled artisan would have
incorporated Raja’s “calculating, at the SPR, a weight for the proxy
provider” and “dynamically configuring utilization threshold of the proxy
provider based on the calculation [of a weight for a proxy provider],” as
recited in claim 1. Petitioner contends “Shribman discloses ‘load balancing’
as an advantage [and] Raja is similarly directed to ‘improvements to load
balancing by providing a load balancing solution that allows a user to select
metrics, weights and thresholds from metrics collected or determined by a
load balancing appliance as well as metrics obtained from another device,
such as a server running the service’” (Pet. 61–62 (quoting Ex. 1007,
Abstract (emphasis by Petitioner); citing Ex. 1003 ¶ 144)). That both
references include discussion of load balancing does not explain why an
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ordinarily skilled artisan would have incorporated the asserted features of
Raja’s “load balancing solution” in the system of Shribman.
Accordingly, based on the record before us, Petitioner has not
persuasively shown an ordinarily skilled artisan would have combined the
teachings of Raja with those of Shribman.
b) Conclusion
Based on the record before us, we determine Petitioner’s proffered
arguments, evidence, and supporting testimony do not establish a reasonable
likelihood that Petitioner would prevail in showing that claim 1 would have
been obvious over Shribman.

2. Independent Claim 10
Referencing its previous contention that claim 10 is obvious over
Shribman, Petitioner further contends Raja teaches “wherein the content is
unreadable to a Smart Proxy Rotator (SPR) due to network transport layer or
application layer encryption” (Pet. 65 (citing Ex. 1007 ¶ 106; Ex. 1003
¶ 149)). More specifically, Petitioner asserts Raja “discloses an encryption
mechanism implemented by the appliance 200 in which ‘the encryption
engine 234 uses a tunneling protocol to provide a virtual private network
between a client 102a–102n and a server 106a–106n’” (id. (citing Ex. 1007
¶ 106; Ex. 1003 ¶ 149)). Thus, Petitioner contends “[b]ased on this
encryption mechanism, Raja teaches content being unreadable to an SPR”
(id. (citing Ex. 1003 ¶ 149)). Petitioner then asserts, “it would have been
obvious to a [person of ordinary skill in the art] to combine the tunneling
protocol of Raja into Shribman to implement a tunneling protocol by the
acceleration server 32 to make content unreadable to the acceleration server
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32 since Shribman involves selection of devices based on load balancing just
as Raja does” (id.).
Patent Owner contends Petitioner’s motivation for the combination is
“[d]eficient” (Prelim. Resp. 60–62). In particular, Petitioner asserts
“Petitioner[’]s modifications assume ––without any support––that any
components in a network that performs load balancing are simply
interchangeable with the components in any other network that contemplates
load balancing” (Prelim. Resp. 57).
Based on the record before us, Petitioner has not shown an ordinarily
skilled artisan would have combined the teachings of Raja with those of
Shribman. In particular, Petitioner’s articulation that an ordinarily skilled
artisan would have combined the teachings because both references
“involve[s] selection of devices based on load balancing” does not explain
why an ordinarily skilled artisan would make “the content [] unreadable to a
Smart Proxy Rotator,” as recited in claim 10. That the references are
analogous is not sufficient reasoning as to why an ordinarily skilled artisan
would have combined the teachings as recited in claim 10.

3. Independent Claim 17
Referencing its previous contention that claim 17 is obvious over
Shribman, Petitioner further contends Raja teaches “wherein proxy
providers’ weights are periodically calculated and configured according to
the proxy performance and availability information submitted by the Web
Scraper at any configured period of time” (Pet. 66–67 (citing Ex. 1007
¶¶ 157, 175; Ex. 1003 ¶ 152)).

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4. Dependent Claims 2, 3, 7, 12, 14, and 18
Petitioner contends claims 2, 3, 7, 12, 14, and 18 are obvious over the
combination of Shribman and Raja (Pet. 64–67).

5. Conclusion
Based on the record before us, we determine Petitioner’s proffered
arguments, evidence, and supporting testimony do not establish a reasonable
likelihood that Petitioner would prevail in showing that claims 1–3, 7, 10,
12, 14, 17, and 18 are obvious over Shribman and Raja.

III. CONCLUSION
After considering the record before us, we are not persuaded the
Petition has demonstrated a reasonable likelihood of prevailing in showing
any of claims 1–20 of the ’983 Patent are unpatentable.

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:
Thomas Dunham
Elizabeth A. O’Brien
RUYAKCHERIAN LLP
tomd@ruyakcherian.com
elizabetho@ruyakcherian.com

FOR PATENT OWNER:
Eagle Robinson
Daniel Leventhal
Michael Pohl
Chad Wallis
NORTON ROSE FULBRIGHT US LLP
eagle.robinson@nortonrosefulbright.com
daniel.leventhal@nortonrosefulbright.com
michael.pohl@nortonrosefulbright.com
chad.wallis@nortonrosefulbright.com