Symantec Corporationv.Finjan, Inc.

Patent Trial and Appeal Board

Feb 26, 2016

13290708 (P.T.A.B. Feb. 26, 2016)

Trials@uspto.gov Paper No. 7
571-272-7822 Entered: February 26, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

SYMANTEC CORP.,
Petitioner,

v.

FINJAN, INC.,
Patent Owner.
____________

Case IPR2015-01897
Patent 8,677,494 B2
____________

Before JAMES B. ARPIN, ZHENYU YANG, and
CHARLES J. BOUDREAU, Administrative Patent Judges.

BOUDREAU, Administrative Patent Judge.

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

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I. INTRODUCTION
Symantec Corp. (“Petitioner”) filed a Petition (Paper 1, “Pet.”)
requesting inter partes review pursuant to 35 U.S.C. § 311 of claims 1, 2, 5,
6, 10, 11, 14, and 15 of U.S. Patent No. 8,677,494 B2 to Edery et al. (Ex.
1001, “the ’494 patent”). Pet. 1. Finjan, Inc. (“Patent Owner”) filed a
Preliminary Response. Paper 6 (“Prelim. Resp.”). We review the Petition
under 35 U.S.C. § 314, which provides that an inter partes review may not
be instituted “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).
For the reasons that follow and on this record, we are not persuaded
that Petitioner demonstrates a reasonable likelihood of prevailing in showing
the unpatentability of any of the challenged claims on the asserted grounds.
Accordingly, we deny Petitioner’s request to institute an inter partes review.
A. The ’494 Patent
The ’494 patent, entitled “Malicious Mobile Code Runtime
Monitoring System and Methods,” issued March 18, 2014, from U.S. Patent
Application No. 13/290,708 (“the ’708 application”), filed November 7,
2011. Ex. 1001, [21], [22], [45], [54]. On its face, the ’494 patent purports
to claim priority from nine earlier applications, including U.S. Patent
Application No. 08,964,388 (“the ’388 application”), filed November 6,
1997, which issued July 18, 2000, as U.S. Patent No. 6,092,194 (Ex. 1007,
“the ’194 patent” or “Touboul I”). Ex. 1001, [60], [63], col. 1, ll. 7–55. For
reasons stated below, we determine on this record that the challenged claims
are entitled at least to the benefit of the November 6, 1997 filing date of the
’388 application.
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B. Related Proceedings
The ’494 patent is the subject of a district court action between the
parties, Finjan, Inc. v. Symantec Corp., 3:14-cv-02998 (N.D. Cal.), and has
also been asserted in three other district court actions, Finjan, Inc. v. Sophos,
Inc., 3:14-cv-01197 (N.D. Cal.), Finjan, Inc. v. Palo Alto Networks, Inc.,
3:14-cv-04908 (N.D. Cal.), and Finjan, Inc. v. Blue Coat Systems, Inc., 5:15-
cv-03295 (N.D. Cal.). Pet. 1; Paper 5, 1. Petitioner also has filed another
petition seeking inter partes review of the ’494 patent, a petition seeking
inter partes review of related U.S. Patent No. 6,154,844 (hereinafter
“Touboul II”), and two petitions seeking inter partes review of related U.S.
Patent No. 7,613,926, in Cases IPR2015-01892, IPR2015-01894, IPR2015-
01893, and IPR2015-01895, respectively. Pet. 1. Palo Alto Networks, Inc.
also has filed a petition seeking inter partes review of the ’494 patent (Case
IPR2016-00159, Paper 2), and a petition filed by Sophos Inc. seeking inter
partes review of the ’494 patent was denied on September 24, 2015 (Case
IPR2015-01022, Paper 7).
C. References Relied Upon
Petitioner relies on the following references:
Exhibit Reference
1007 US 6,092,194, issued July 18, 2000 (“Touboul I”)
1016 US 6,154,844, issued Nov. 28, 2000 (“Touboul II”)
Pet. 23–24. Petitioner also relies on the Declaration of Jack W. Davidson
(Ex. 1021).
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D. Asserted Grounds of Unpatentability
Petitioner challenges the patentability of the challenged claims on the
following four grounds:
Reference Basis Claims Challenged
Touboul I § 102(b) 1, 5, 6, 10, 14, and 15
Touboul I § 103(a) 2 and 11
Touboul II § 102(b) 1, 5, 6, 10, 14, and 15
Touboul II § 103(a) 2 and 11

Pet. 24.
II. DISCUSSION
A. Claim Interpretation
In an inter partes review proceeding, claims of an unexpired patent
are given their broadest reasonable interpretation in light of the specification
of the patent in which they appear. 37 C.F.R. § 42.100(b); Office Patent
Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012); In re
Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1275–79 (Fed. Cir. 2015), cert.
granted sub nom. Cuozzo Speed Techs. LLC v. Lee, 136 S. Ct. 890 (2016).
On this record and for purposes of this Decision, we determine that no claim
terms require express construction.
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B. Priority Date
1. Background
As filed, the ’708 application from which the ’494 patent issued
claimed priority from the following seven earlier-filed applications:
1) U.S. Patent Application No. 08/964,388 (“the ’388 application”) to
Shlomo Touboul, which, as indicated in Section I.A. above, was filed on
November 6, 1997, and issued as Touboul I on July 18, 2000;
2) U.S. Patent Application No. 09/539,667 (“the ’667 application”) to
Mr. Touboul, filed March 30, 2000, as a continuation of the ’388
application; the ’667 application issued October 12, 2004, as U.S. Patent No.
6,804,780 B1 (Ex. 1006, “the ’780 patent”);
3) U.S. Patent Application No. 09/551,302 (“the ’302 application”) to
Mr. Touboul, filed April 18, 2000; the ’302 application issued November 12,
2002, as U.S. Patent No. 6,480,962 B1 (Ex. 1009, “the ’962 patent”);
4) U.S. Provisional Patent Application No. 60/205,591 (Ex. 1005,
“the ’591 provisional”) to Nimrod Itzhak Vered, Yigal Mordechai Edery,
and David R. Kroll, filed May 17, 2000;
5) U.S. Patent Application No. 09/861,229 (“the ’229 application”) to
Messrs. Edery, Vered, Kroll, and Touboul,1 filed May 17, 2001, as a

1 The ’229 application, as filed, named only Messrs. Vered, Edery, and Kroll
as inventors. However, a Request to Correct Inventorship, requesting to add
Mr. Touboul as an inventor, was filed on June 21, 2005. Ex. 2005, 3. The
Request was accompanied by supporting papers, including a statement
signed by Mr. Touboul and stating that the error in inventorship occurred
inadvertently and that there was no deceptive intent on his part; an Assent of
Assignee To Correction And/Or Addition of Inventor; a new Declaration
signed by Messrs. Vered, Edery, Kroll, and Touboul; and an Assignment
executed by Mr. Touboul. Id. at 4–14. The Office granted the Request on
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continuation-in-part of the ’667 and ’302 applications and claiming the
benefit of the ’591 provisional; the ’229 application issued June 6, 2006, as
U.S. Patent No. 7,058,822 B2 (Ex. 1004, “the ’822 patent”);
6) U.S. Patent Application No. 11/370,114 (“the ’114 application”) to
Messrs. Edery, Vered, Kroll, and Touboul, filed March 7, 2006, as a
continuation of the ’229 application; the ’114 application issued November
3, 2009, as U.S. Patent No. 7,613,926 B2 (Ex. 1003, “the ’926 patent”); and
7) U.S. Patent Application No. 12/471,942 (“the ’942 application”) to
Messrs. Edery, Vered, Kroll, and Touboul, filed May 26, 2009, as a
continuation of the ’114 application; the ’942 application issued December
13, 2011, as U.S. Patent No. 8,079,086 B1 (Ex. 1002, “the ’086 patent”).
Ex. 3002, 1.
On December 6, 2013, during original prosecution of the ’708
application, Applicants filed a petition to amend the application to include
references to priority claims from two additional applications, namely, U.S.
Patent Application No. 08/790,097 (“the ’097 application”) to Mr. Touboul,
filed January 29, 1997, which issued as U.S. Patent No. 6,167,520 (Ex.
1010, “the ’520 patent”), and of which the ’302 application was a
continuation; and U.S. Provisional Application No. 60/030,639 (Ex. 1008,
“the ’639 provisional”) to Mr. Touboul, filed November 8, 1996, from which
the ’388 and ’097 applications had both claimed priority. Ex. 3003. The
Office granted the Applicants’ petition on December 24, 2013. Ex. 3004.

August 11, 2005, before the ’822 patent issued. Id. at 15–17. Although Mr.
Touboul’s name was not printed on the ’822 patent when it issued (Ex. 1004,
[75]), it was later added by a Certificate of Correction (id. at 25) issued on a
request filed under 37 C.F.R. § 1.322 (“Certification of correction of Office
mistake”). Ex. 3001.
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To better understand Patent Owner’s claims to priority for the ’494
patent, Petitioner prepared a chart, which we have reproduced below with an
annotation to identify the ’194 patent as Touboul I:

Petitioner’s chart provides “a graphical depiction of the claimed priority
chain in the ’494 patent (with dashed arrows indicating that the later
application is a continuation-in-part of the earlier application).” Pet. 4.
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As set forth in Section I.D. above, Petitioner contends that claims 1, 5,
6, 10, 14, and 15 of the ’494 patent are anticipated—and claims 2 and 11 of
the ’494 patent are rendered obvious—by each of Touboul I and Touboul II.
Pet. 24. Although neither Touboul I nor Touboul II issued until 2000,
Petitioner contends that the priority claims in the ’494 patent are “defective
for a number of reasons and, therefore, the challenged claims are not entitled
to earlier priority based on any of the Priority Applications.” Pet. 5. In
particular, according to Petitioner,
It is well settled that, in order for a later-filed application
to be entitled to the benefit of the filing dates of earlier-filed
applications, each application in the priority chain must, inter
alia: (i) satisfy the written description requirement of § 112 for
the claims of the later-filed application; and (ii) include specific
references to each of the earlier-filed applications in the chain.
Here, the priority chain of the ’494 patent fails to meet
either requirement. The Priority Applications lack the
continuing disclosure throughout the chain that is necessary to
support the challenged claims of the ’494 patent. In particular,
each of the ’086, ’926, and ’822 patents lacks sufficient
disclosure under § 112 for virtually all of the elements recited in
the challenged claims. Thus, each of these patents constitutes a
break in the priority chain and, therefore, the challenged claims
are not entitled to earlier priority. Moreover, neither the ’086
patent, nor the ’926 patent, include a priority claim or any
reference whatsoever to a number of earlier-filed applications
(i.e., the ’194 patent, ’520 patent and ’639 provisional) that are
included in the priority chain of the ’494 patent. Thus, the ’086
and ’926 patents both fail to satisfy the specific-reference
requirement under § 120 and, for this additional reason, these
patents constitute a break in the priority chain.
Additionally, when it issued in 2006, the ’822 patent also
lacked any priority claim or any reference whatsoever to these
earlier-filed applications (nor did it even share any inventors in
common with the many of the earlier-filed applications). This
remained the case until 2014 . . . when Patent Owner amended
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the priority claims during an ex parte reexamination of the ’822
patent.
Id. at 5–6 (internal citations omitted). Accordingly, Petitioner contends, “the
earliest possible priority date of the challenged claims is the filing date of the
’494 patent, i.e., November 7, 2011,” and both Touboul I and Touboul II are
“prior art to the ’494 patent under pre-AIA 35 U.S.C. § 102(b).” Id. at 8, 23,
24.
Patent Owner counters, inter alia, that the ’494 patent properly claims
priority back to Touboul I, rendering both Touboul I and Touboul II
“inoperative as prior art.” Prelim. Resp. 1. For the reasons that follow, we
agree with Patent Owner.
2. Continuity of Disclosure
To claim priority from an earlier application under 35 U.S.C. § 120,
each application in the chain leading back to the earliest application must
comply with the written description requirement of 35 U.S.C. § 112. Zenon
Envtl., Inc. v. U.S. Filter Corp., 506 F.3d 1370, 1378 (Fed. Cir. 2007); see
also In re Hogan, 559 F.2d 595, 609 (CCPA 1977) (“[T]here has to be a
continuous chain of copending applications each of which satisfies the
requirements of § 112 with respect to the subject matter presently
claimed.”). If any application in the priority chain fails to make the requisite
disclosure, the later-filed application is not entitled to the benefit of the filing
date of applications preceding the break in the priority chain. Lockwood v.
Am. Airlines Inc., 107 F.3d 1565, 1571–72 (Fed. Cir. 1997).
Petitioner contends that the priority chain of the ’494 patent does not
satisfy the requirement set forth by the Federal Circuit and the Board that
each application must include sufficient disclosure to satisfy the written
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description requirements of 35 U.S.C. § 112 for the claims at issue to secure
the benefit of the earliest claimed priority date. Pet. 8 (citing Holmer v.
Harari, 681 F.3d 1351, 1355 (Fed. Cir. 2012); Hyatt v. Boone, 146 F.3d
1348, 1354–55 (Fed. Cir. 1998); In re Hogan, 559 F.2d at 609; Polaris
Wireless, Inc. v. TruePosition, Inc., Case IPR2013-00323, Paper 62, slip op.
at 22 (PTAB Nov. 3, 2014); Focal Therapeutics, Inc. v. Senorx, Inc., Case
IPR2014-00116, Paper 8, slip op. at 12 (PTAB Apr. 22, 2014)). According
to Petitioner, claim elements and features such as “deriving security profile
data for [a] Downloadable,” Downloadable security profile (“DSP”) data
“including a list of suspicious computer operations that may be attempted by
the Downloadable,” and “storing the [DSP] data in a database,” as recited in
challenged independent claims 1 and 10; “stor[ing] a date & time when the
[DSP] data was derived [by said Downloadable scanner], in the database,” as
recited in dependent claims 2 and 11; and “suspicious computer operations
includ[ing] calls made to an operating system, a file system, a network
system, and to memory,” as recited in dependent claims 6 and 15, “are
described in some of the earliest-filed applications in the priority chain,
namely: the ’780 patent, the ’194 patent, and the ’639 provisional.” Pet. 9.
Petitioner asserts that, “[i]mportantly, however, none of this same disclosure
corresponding to these claim elements is included in the specifications of the
’086, ’926, or ’822 patents. Nor are these claim elements described
anywhere in the ’086, ’926, or ’822 patents.” Id. at 9–10 (citations omitted).
Further, Petitioner asserts, “[a]lthough the ’822 patent is characterized as a
‘continuation-in-part’ of the ’780 patent, the ’822 patent specification is
directed to completely new subject matter and is missing the vast majority of
the disclosure in the ’780 patent.” Id. at 10.
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Petitioner’s assertions are not persuasive. As Patent Owner points
out, the ’822 patent incorporates by reference the ’780 and ’962 patents; the
’926 patent incorporates by reference the ’194, ’780, ’962, and ’822 patents;
the ’086 patent incorporates by reference the ’194, ’780, ’962, ’822, and
’926 patents; and the ’494 patent incorporates by reference the ’822, ’926,
and ’086 patents. Prelim. Resp. 17. The ’494 patent also incorporates by
reference the ’194, ’780, and ’962 patents. Ex. 1001, 1:31–32, 35–38, 47–
48.
As Patent Owner correctly explains (Prelim. Resp. 17–18), material
necessary to provide a written description of a claimed invention as required
by 35 U.S.C. § 112 may be incorporated into a patent application by
reference, provided that the incorporated reference is a U.S. patent or U.S.
patent application publication that does not itself incorporate such “essential
material” by reference, by “[e]xpress[ing] a clear intent to incorporate by
reference by using the words ‘incorporat(e)’ and ‘reference’” and “[c]learly
identify[ing] the referenced patent [or] application.” 37 C.F.R. § 1.57(c),
(d). Moreover, the Federal Circuit has explained that “incorporated patents
are ‘effectively part of the host [patents] as if [they] were explicitly
contained therein.’” X2Y Attenuators, LLC v. U.S. Int’l Trade Comm’n, 757
F.3d 1358, 1362–63 (Fed. Cir. 2014) (alterations in original) (quoting
Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1329 (Fed.
Cir. 2001)). Contrary to Petitioner’s contentions (Pet. 11–15), the
“boilerplate language” used in the ’822, ’926, ’086, and ’494 patents,
broadly stating without further qualification that the earlier-filed patents are
“incorporated by reference,” is sufficient in view of Federal Circuit
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precedent to incorporate the disclosure of at least the ’780 patent2 into each
later-filed patent. See, e.g., Harari v. Lee, 656 F.3d 1331, 1335 (Fed. Cir.
2011) (finding “entire . . . application disclosure was incorporated by the
broad and unequivocal language: ‘The disclosures of the two applications
are hereby incorporate[d] by reference’”). We agree with Patent Owner that
the facts here are distinguishable from those in cases on which Petitioner
relies. Prelim. Resp. 23–24. For example, in Zenon, as Patent Owner
asserts, there was a lack of continuity of disclosure in a priority chain
because the priority references were not incorporated in their entirety, but
only with respect to specific portions. Id.
On this record, and particularly in view of Petitioner’s statement that
the specification of the ’780 patent, among others, describes the “claim
elements and features” not otherwise included in the specifications of the
’822, ’926, ’086, and ’494 patents (Pet. 10)—and, thus, does not itself
incorporate such “essential material” by reference (see 37 C.F.R.
§1.57(d))—we agree with Patent Owner’s conclusion that “each application
in the priority chain contains written description support for the challenged
claims, and continuity of disclosure exists up to and including the ’494
[p]atent without interruption.” Prelim. Resp. 16.3

2 We note that, although the ’822 patent does not expressly incorporate by
reference the ’194 patent, the ’667 application from which the ’780 patent
issued was a continuation of the ’388 patent from which the ’194 patent
issued, and the ’194 and ’780 patents share essentially the same disclosure.
Compare Ex. 1006 with Ex. 1007.
3 Petitioner also asserts that “the ’822 patent did not even include any
inventors in common with the earlier applications until Patent Owner
‘corrected’ the inventorship more than 5 years after the ’822 patent issued.”
Pet. 10. As explained in note 1 supra, however, the inventorship of the ’229
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3. Specific Reference to Earlier-Filed Applications
A patent is entitled to the priority date of an earlier filed application if,
among others, it contains or is amended to contain a specific reference to the
earlier filed application. 35 U.S.C. § 120.
Contrary to Petitioner’s assertion that “neither the ’086 patent, nor the
’926 patent, include a priority claim or any reference whatsoever to a
number of earlier-filed applications (i.e., the ’194 patent, ’520 patent and
’639 provisional) that are included in the priority chain of the ’494 patent”
(Pet. 6), the ’086 and ’926 patents both include priority claims to the ’194
patent and incorporate the ’194 patent by reference in its entirety. Ex. 1002,
[63], 1:26–30; Ex. 1003, [63], 1:23–27. Moreover, as Patent Owner points
out, the ’520 patent and ’639 provisional are not within the priority chain
from the ’494 patent to the ’194 patent, and the failure of the ’926 and ’086
patents to include a priority claim or reference to the ’520 patent and ’639
provisional does not affect the ’494 patent’s entitlement to the benefit of the
November 6, 1997 filing date of the ’388 application that matured into the
’194 patent (i.e., Touboul I).
Petitioner also argues that the failure of the ’926 and ’086 patents to
include a priority claim or any reference to the ’520 patent and ’639
provisional constitutes a break in the priority chain of the ’494 patent. Pet.
17. For purposes of this Decision, however, we need not reach this issue.

application from which the ’822 patent issued was corrected in 2005, prior to
the issuance of the ’822 patent. See Ex. 2005. Accordingly, Petitioner’s
assertion is both incorrect and unpersuasive.
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4. Delay in Correction of ’822 Patent Priority Claim
As filed, the ’229 application that matured into the ’822 patent
included a claim of priority from, and incorporated by reference, the ’302
application that matured into the ’962 patent, the ’667 application that
matured into the ’780 patent, and the ’591 provisional, but it did not claim
priority from or include any reference to the ’520 and ’194 patents or the
’097 and ’388 applications from which those patents respectively issued. As
Petitioner points out, however, Patent Owner, in the course of ex parte
reexamination of the ’822 patent in 2014, filed a Petition to Accept
Unintentionally Delayed Priority Claim Under 37 C.F.R. 1.78, requesting
amendment to include references to the ’520 and ’194 patents.
Reexamination Control No. 90/013,017, Petition dated March 6, 2014, at 1–
3 (Ex. 1015, 7–9); see also Pet. 18. The Office granted Patent Owner’s
Petition on July 25, 2014. Reexamination Control No. 90/013,017, Decision
dated July 25, 2014, at 1–3 (Ex. 1015, 1–3)).
Notwithstanding Patent Owner’s representation that the delay in
requesting correction of the priority claim was unintentional, Petitioner
asserts that “the publically available information concerning the ’822 patent,
as well as other patents in the same family and other applications owned by
Patent Owner, cast[s] serious doubts concerning the veracity of Patent
Owner’s representation that this delayed priority claim in the ’822 patent
was ‘unintentional.’” Pet. 19 (emphasis added). In support of this assertion,
Petitioner points to Patent Owner’s amendment of the priority claim in the
application that matured into the ’494 patent; the assertions of priority
claims going through the ’822 patent in the applications for the ’926, ’086,
and ’494 patents; and amendments of priority claims in one other application
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and one other patent, and suggests that “it appears Patent Owner has, on
numerous occasions, attempted to gain extra patent term for its patents by
not making certain priority claims up front, and then only doing so in certain
applications when an earlier priority date is needed to avoid/disqualify
intervening prior art.” Id. at 20–22.
Patent Owner responds, inter alia, that “Petitioner is essentially
alleging inequitable conduct by questioning the veracity of Patent Owner’s
Statement to the USPTO,” and “validity challenges based on inequitable
conduct are improper in a petition for Inter Partes Review.” Prelim. Resp.
28. We agree. The Board is not a court of general jurisdiction, but an
administrative tribunal whose jurisdiction is limited statutorily in the context
of inter partes review proceedings to determinations of patentability
pursuant to 35 U.S.C. §§ 102 and 103 based on prior art consisting of
patents and printed publications. 35 U.S.C. § 311(b). Thus, we do not make
any determination with respect to Petitioner’s allegations regarding the
veracity of Patent Owner’s statements to the Office in prior proceedings.
Moreover, Petitioner’s doubts and inferences regarding Patent Owner’s past
actions and motives are insufficient bases for us to question Patent Owner’s
candor in this proceeding. See 37 C.F.R. § 42.11.
C. Anticipation by and Obviousness over Touboul I and Touboul II
On this record and for the reasons stated in Section II.B. above, we are
persuaded that claims 1, 2, 5, 6, 10, 11, 14, and 15 of the ’494 patent are
entitled at least to the benefit of the November 6, 1997 filing date of the ’388
patent that matured into the ’194 patent, and, accordingly, that neither
Touboul I (i.e., the ’194 patent) nor Touboul II, which issued on November
28, 2000, from an application filed December 22, 1997, constitutes prior art
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to those claims. We conclude, therefore, that Petitioner has not
demonstrated a reasonable likelihood that it would prevail at trial on any of
the asserted grounds.

III. CONCLUSION
On this record, Petitioner has not shown that Touboul I and
Touboul II are prior art to the challenged claims of the ’494 patent.
Accordingly, Petitioner has not demonstrated a reasonable likelihood of
prevailing on its challenges to the patentability of those claims on the
grounds asserted in the Petition.

IV. ORDER
Upon consideration of the record before us, it is, therefore,
ORDERED that the Petition is denied, and no inter partes review is
instituted as to any claim of the ’494 patent.

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For PETITIONER:

Joseph J. Richetti
Daniel A. Crowe
BRYAN CAVE LLP
joe.richetti@bryancave.com
dacrowe@bryancave.com

For PATENT OWNER:

James Hannah
Jeffrey H. Price
KRAMER LEVIN NAFTALIS & FRANKEL LLP
jhannah@kramerlevin.com
jprice@kramerlevin.com

Michael Kim
FINJAN, INC.
mkim@finjan.com