Veeam Software Corporationv.Symantec Corporation

Patent Trial and Appeal Board

Aug 7, 2013

10436354 (P.T.A.B. Aug. 7, 2013)

Trials@uspto.gov Paper 7
Tel: 571-272-7822 Entered: August 7, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
VEEAM SOFTWARE CORPORATION
Petitioner
v.
SYMANTEC CORPORATION
Patent Owner
_______________

Case IPR2013-00151
Patent 7,191,299
_______________

Before THOMAS L. GIANNETTI, SCOTT E. KAMHOLZ, and
TRENTON A. WARD, Administrative Patent Judges.

WARD, Administrative Patent Judge.

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

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I. INTRODUCTION
A. Background
Veeam Software Corporation (“Veeam”) filed a petition to institute an inter
partes review of claims 13 and 16 of U.S. Patent 7,191,299 B1 (the “ ’299 patent”).
Paper 2 (“Pet.”). Patent Owner Symantec Corporation (“Symantec”) 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:
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.

Petitioner contends that the challenged claims are unpatentable under
35 U.S.C. § 103 on the following specific grounds (Pet. 2-55):
1

Reference Basis Claims challenged
Ohran and Veritas § 103 13 and 16
Ohran and Barker § 103 13 and 16
Ohran and Preston § 103 13 and 16

1
The references relied upon are: US 5,835,953 (Ex. 1003) (“Ohran”), US
2002/0049718 (Ex. 1004) (“Kleiman”), VERITAS File System 3.4:
Administrator’s Guide – Solaris (Ex. 1006) (“Veritas”), “Unix Backup and
Recovery” (Ex. 1008) (“Preston”), US 6,691,245 (Ex. 1005) (“DeKoning”), and
Storage Area Network Essentials: A Complete Guide to Understanding and
Implementing SANs (Ex. 1007) (“Barker”). Additionally, Petitioner supports its
challenge with a declaration by Dr. Prashant Shenoy (Ex. 1002) (“Shenoy Decl.”).
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Reference Basis Claims challenged
Kleiman and Veritas § 103 13 and 16
Kleiman and Barker § 103 13 and 16
Kleiman and Preston § 103 13 and 16
DeKoning and Barker § 103 13 and 16
For the reasons given below, we deny institution of an inter partes review of
claims 13 and 16 on all grounds.
B. Additional Proceedings
In addition to this petition, Petitioner has filed a petition challenging the
patentability of claims 1, 2, 4, 5, 12, 14, and 15 of the ’299 patent. See IPR2013-
00143. Our decision on that petition is being entered today.
C. The Invention
The ’299 patent is titled “Method and System for Providing Periodic
Replication” and generally relates to enabling a data volume to be replicated
between a primary node and a secondary node within a storage system using a
“storage object.” ’299 patent, col. 2, l. 67 – col. 3, l. 2. The patent explains that
this “storage object” provides information about the changes to a volume with
respect to a point-in-time image of that volume and that the “storage object”
comprises a point-in-time copy of the data volume and a storage volume map. Id.
at col. 3, ll. 5-7, col. 5, ll. 11-13. Figure 3 from the ’299 patent is reproduced
below:

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Figure 3 of the ’299 patent.
Figure 3 of the ’299 patent above illustrates that primary node 300a includes the
primary data volume 310a, a point-in-time copy 316, a first data volume map 318,
and second data volume map 320. ’299 patent, col. 6, ll. 8-10. Furthermore,
Figure 3 of the ’299 patent illustrates that a secondary node 300b includes a
secondary data volume 310b and a point-in-time copy 322. ’299 patent, col. 6, ll.
33-39. In accordance with the method described in the patent, after initial
synchronization of the primary node 300a and secondary node 300b, the data
associated with incremental changes of the primary node 300a may be copied from
the point-in-time copy 316 of the primary node 300a, using a storage volume map
318, to a second point-in-time copy 322 of the secondary node 300b. Id. at col. 6,
ll. 33-42. The storage volume map 318 can be used to identify changes to storage
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volume. Id. Claims 13 and 16 are further directed at identifying a first set of one
or more modified regions by storing an extent, wherein the extent includes a
reference to a modified region of said first set of one or more modified regions and
a length. Claim 13 illustrates the claimed subject matter and is reproduced below
with emphasis added:
13. A method comprising:

creating a storage object corresponding to a storage
volume, wherein said storage object comprises a
point-in-time copy of said storage volume and a
storage volume map;

replicating said storage volume utilizing said storage
object; and

identifying a first set of one or more modified regions of
said first storage volume using said first storage
volume map, wherein

said creating a storage object comprises creating a
first storage object corresponding to a first storage
volume,
said first storage object comprises a first point-in-time
copy of said first storage volume and a first storage
volume map,
said replicating said storage volume comprises
copying data from said first point-in-time copy of
said first storage volume to a second storage
volume, and
said identifying a first set of one or more modified
regions comprises, storing an extent, wherein said
extent comprises a reference to a modified region
of said first set of one or more modified regions
and a length.

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D. Claim Construction
Consistent with the statute and the legislative history of the AIA, the Board
will interpret claims of an unexpired patent using the broadest reasonable
construction in light of the specification of the patent. See Office Patent Trial
Practice Guide, 77 Fed. Reg. 48756, 48766 (Aug. 14, 2012); 37 CFR
§ 42.100(b). There is a “heavy presumption” that a claim term carries its ordinary
and customary meaning. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359,
1366 (Fed. Cir. 2002). Petitioner and Patent Owner proffer several proposed
constructions, and we address the pertinent constructions as follows:
1. “replicating said storage volume”
Petitioner alleges that the term “replicating said storage volume” is updating
a second storage volume to cause the second storage volume to be consistent with
a first or primary storage volume. Pet. 5. Patent Owner alleges that the term
“replicating said storage volume” is creating a duplicate copy of the storage
volume by copying its data to a second storage location. Prelim. Resp. 13. The
’299 patent states that “[r]eplication is one technique utilized to minimize data loss
and improve the availability of data in which a replicated copy of data is
distributed and stored at one or more remote sites or nodes.” ’299 patent, col. 1,
ll. 21-24. We determine that the claims adequately define “replicating said storage
volume” by reciting that “said replicating said storage volume comprises copying
data from said first point-in-time copy of said first storage volume to a second
storage volume.” ’299 patent, claim 1. On the record presented, and consistent
with the claims and the specification, we construe “replicating said storage
volume” to mean “copying data from said first point-in-time copy of said first
storage volume to a second storage volume.”

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2. “storage object”
Petitioner alleges the ’299 patent discloses that the replication of the storage
volume utilizes a “storage object” comprising a point-in-time copy of said storage
volume and a storage volume map. Pet. 6. Patent Owner argues that the claimed
phrase “creating a storage object corresponding to a storage volume” is: “creating
and storing a data structure that includes a point-in-time copy of the storage
volume and a storage volume map.” Prelim. Resp. 18. In the related litigation
involving the ’299 patent in the District Court for the Northern District of
California (“District Court”), the Court did not adopt either of the parties’ proposed
constructions, but determined that “‘storage object’ is defined adequately in the
claim language itself: ‘creating a storage object corresponding to a storage volume,
wherein said storage object comprises a point-in-time copy of said storage volume
and a storage volume map.’” Symantec Corp. v. Veeam Software Corp., Case No.
12-cv-00700-SI, March 8, 2013 Claim Construction Order, 12-13 (Ex. 2002). On
the record presented, we agree with and, therefore, adopt the District Court’s
construction.
3. “point-in-time copy”
Petitioner alleges that the ’299 patent discloses that “a snapshot volume [is]
a point-in-time copy of another volume (e.g., a primary data volume).” Pet., 6
(quoting ’299 patent, col 4, ll. 40-42).
2
Furthermore, Petitioner alleges that the
’299 patent discloses that the point-in-time copy can be “space-optimized, such
that only data modified in the base (e.g., primary) data volume or the snapshot
itself is stored in the snapshot or full-image, such that all data from a
corresponding base volume is copied into the snapshot.” Pet. 6 (quoting '299

2
Patent Owner uses the terms snapshot volume and point-in-time copy
interchangeably. See ’299 patent, col 4. l. 40; Prelim. Resp. 19-20.
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patent, col 4, ll. 48-52). Based on this disclosure, Petitioner argues that the term
“point-in-time copy” is broad enough to cover a changed-block point-in-time copy
and a full point-in-time copy. Pet. 6. Patent Owner agrees that the term “point-in-
time copy” does not require the storage of “a separate copy of all the underlying
data on the volume,” but argues that it must at least include locations
corresponding to each of the regions on the storage volume. Prelim. Resp. 21.
Patent Owner’s narrow reading of the claim term “point-in-time copy” is not
required by the claims and, in fact, is contradictory to the disclosure in the
specification that the “point-in-time copy” can be “space-optimized, such that only
data modified in the base (e.g., primary) data volume” is stored. ’299 patent, col 4,
ll. 48-50. Accordingly, on the record presented, we conclude that the term “point-
in-time copy” is a “partial or complete copy of another data volume as it existed at
a particular point in time.”

II. ANALYSIS
A. Overview
Petitioner contends that the claims of the ’299 patent recite a replication
method that relies upon a storage object that comprises a point-in-time copy of the
primary data volume and a map of the changes to the primary data volume, a
method Petitioner alleges was well known in the prior art. Pet. 1. To support this
position, Patent Owner provides testimony of Dr. Prashant Shenoy. Shenoy
Decl. ¶¶ 18-122.
B. Obviousness of Claims 13 and 16 Over Ohran and Veritas
1. Overview of Ohran
Ohran discloses a backup system having primary storage devices that are to
be backed up on a backup storage device. Ohran, Abstr. The primary systems
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identify changes made to the primary storage device, and the identified changes are
captured in a static snapshot when the primary storage device is in a logically
consistent state. Id. The data in the static snapshot can then be transferred to the
backup system. Id. Figure 3 of Ohran is reproduced below:

Ohran Figure 3
As shown above in Fig. 3, Ohran discloses a mass storage device 20, associated
with a snapshot storage 22, a snapshot map 52, and a backup map 48, and backup
storage 24, associated with a backup capture buffer 26. Ohran, col. 12, l. 59 – col.
13, l. 30.
2. Overview of Veritas
The Veritas reference relied upon by Petitioner is a VERITAS File System
Administrator’s Guide that provides information on aspects of VERITAS File
System administration and serves as a guide for system administrators who
configure and maintain UNIX systems with the VERITAS File System. Veritas
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xv. The Veritas reference provides an extensive discussion of the VERITAS File
System, which is described as an alternative allocation scheme that includes
“extents” rather than just the block-based allocation scheme that is standard in
Unix. Veritas 4. Specifically, Veritas teaches that in a VERITAS File System,
disk space is allocated in 512-byte sectors to form logical blocks, and “[a]n extent
is defined as one or more adjacent blocks of data within the file system.” Veritas
5.
3. Analysis
Petitioner contends that claims 13 and 16 are obvious in view of Ohran and
Veritas. Pet. 16-21. Claim 13 requires “storing an extent, wherein said extent
comprises a reference to a modified region of said first set of one or more modified
regions and a length.” Claim 16 provides a similar recitation regarding storing an
extent. Petitioner concedes that Ohran fails to teach the “storing an extent”
limitation and relies upon a combination of the teachings of an extent-based file
system in Veritas with Ohran in asserting that claims 13 and 16 are obvious.
Pet. 16-17. Patent Owner argues in response that Veritas fails to teach “storing an
extent,” as set forth in claims 13 and 16. Prelim. Resp. 36-37.
In describing the need for storing an extent, the ’299 patent specification
discloses that in one embodiment of the invention, entire data regions are
transferred or copied even when the data change is less than the entire region,
which may result in sending more data than actually is required. ’299 patent, col.
8, ll. 10-14. “To overcome this inefficiency in the data transfer,” the ’299 patent
discloses storing “associated extents (either persistently on disk or non-
persistently/incore in RAM) in addition to setting a bit in [a] bitmap as described
herein. This extent information may then be used to send the exact data that was
modified by the application.” ’299 patent, col. 8, ll. 14-19. Thus, the ’299 patent
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discloses that extents can be implemented in addition to storage volume maps to
increase the efficiency of the data to be transferred by sending only the exact data
modified instead of an entire region noted as modified in the storage volume map.
See id.
Petitioner alleges that “Veritas discloses an extent-based file system that
uses extents to store data wherein an extent includes a reference to a disk address
and a length.” Pet. 17. Specifically, Veritas defines the term extent as a “group of
contiguous file[] system data blocks treated as a single unit.” Veritas 197. Patent
Owner argues that the “extents” described in Veritas refer to variable units of
storage space on a file system, which allow storage space to be allocated in larger
units, i.e., groups of blocks rather than one block at a time. Prelim. Resp. 36.
Patent Owner alleges, however, that Veritas fails to teach storing an extent
(including, a reference and a length) to identify a “modified region” of a data
volume. Prelim. Resp. 36-37. We agree with Patent Owner that Veritas fails to
teach this limitation. The portions of Veritas relied upon by the Petitioner do not
provide any teaching or suggestion regarding identifying a modified region but
teach that the “VxFS [Veritas File System] allocates storage in groups of extents
rather than a block at a time.” Veritas 5. Veritas teaches that groups of contiguous
data blocks associated with these “extents” can allow disk I/O processing to be
“considerably faster than block-at-a-time operation.” Veritas 5. Thus, the extent-
based file system taught in Veritas is focused on multi-block storage allocation, not
on identifying modified regions in a data volume.
Petitioner fails to provide any citation to a teaching or suggestion in Veritas
regarding identifying modified regions of a storage volume by storing an extent
including a reference to a modified region, as required by claims 13 and 16.
Petitioner only provides the conclusory statement proffered by its expert, that the
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“extent-based file[] system of Veritas can be used in the system of Ohran.”
Shenoy Decl. ¶ 49. Regardless, even assuming the extent-based file system of
Veritas can be substituted for the block-based file system of Ohran, Petitioner fails
to provide any citation to a teaching or suggestion in Veritas or Ohran regarding
identifying modified regions by storing an extent, as required by claim 13 and 16.
It was for the Petitioner to demonstrate how the prior art discloses or makes
obvious every limitation of the claimed subject matter, and Petitioner has not done
this. Petitioner’s presentation is incomplete and, therefore, insufficient to
demonstrate obviousness.
Therefore, based on the information presented in the Petition, we conclude
that Petitioner has not demonstrated a reasonable likelihood that it will prevail in
proving the subject matter of claims 13 and 16 to be obvious in view of Ohran and
Veritas.
C. Obviousness of Claims 13 and 16 Over Ohran and Barker
1. Overview of Barker
Barker is a 498-page textbook titled “Storage Area Network Essentials,”
which provides a guide to understanding and implementing storage area networks.
Barker xxiii. Barker provides a section describing “Extent-Based File Systems,”
illustrated in Figure 8.10 reproduced below:

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Barker Figure 8.10, Extent-based file system
As shown above in Figure 8.10, Barker teaches that some file systems use extent-
based allocation to reduce or eliminate overhead by allocating “storage space in
variable length extents of one or more file system blocks, rather than in fixed
length allocation units.” Barker 214-215. “The key advantage of an extent-based
file system is that it enables larger contiguous areas of storage to be mapped with
minimal overhead.” Barker 215.
2. Analysis
Petitioner contends that claims 13 and 16 are obvious in view of Ohran and
Barker. Pet. 21-24. As with the previous grounds, Petitioner concedes that Ohran
fails to teach the “storing an extent” limitation and relies upon a combination of the
teachings of an extent-based file system in Barker with Ohran in alleging that
claims 13 and 16 are obvious. Pet. 21.
Patent Owner argues that Barker fails to teach “storing an extent,” as set
forth in claims 13 and 16. Prelim. Resp. 37. Specifically, Patent Owner asserts
that, like Veritas, Barker uses the term “extent” in an entirely different manner than
in the ’299 patent. Prelim. Resp. 38. Patent Owner cites to Barker’s definition of
the term extent as a “‘set of consecutively addressed FBA disk blocks that is
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allocated to consecutive addresses of a single file.’” Prelim. Resp. 37-38 (quoting
Barker 419). Patent Owner states that Barker merely uses the term extent to refer
to a space allocation unit that is allocated by the file system when a file is stored.
Prelim. Resp. 37. Patent Owner alleges that Barker fails to teach storing an extent
(including a reference and a length) to identify a “modified region” of a data
volume. Prelim. Resp. 36-37.
We agree with Patent Owner that Barker fails to teach this limitation. The
portions of Barker relied upon by the Petitioner teach an “extent-based file system”
as opposed to a “block-based file system,” but fail to provide any reference to
storing an extent to identify a “modified region” of a data volume. See Barker
214-215. Furthermore, Petitioner fails to cite to any testimony from its expert as to
how either Barker or Ohran teach or suggest storing an extent to identify a
“modified region” of a data volume. See Shenoy Decl. ¶ 50. Therefore, based on
the information presented in the Petition, we conclude that Petitioner has not
demonstrated a reasonable likelihood that it will prevail in proving the subject
matter of claims 13 and 16 to be obvious in view of Ohran and Barker.
D. Obviousness of Claims 13 and 16 over Ohran and Preston
1. Overview of Preston
Preston is a textbook titled “Unix Backup and Recovery,” which provides a
guide to backing up and recovering a Unix-based file system. See Preston, 3-5.
Preston teaches that there are number of methods used in file systems to expedite
data access, including the use of extents. Preston, 241. Preston teaches that
“[e]xtents are large contiguous sets of blocks, allocated during the creation of a
file.” Preston, 241.
2. Analysis
Petitioner contends that claims 13 and 16 are obvious in view of Ohran and
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Preston. Pet. 25-28. As with the previous grounds, Petitioner concedes that Ohran
fails to teach the “storing an extent” limitation and relies upon a combination of the
teachings of an extent by Preston in alleging that claims 13 and 16 are obvious.
Pet. 25-26.
Patent Owner argues that Preston fails to teach “storing an extent,” as set
forth in claims 13 and 16. Prelim. Resp. 37. We agree with Patent Owner that
Preston fails to teach this limitation. Petitioner cites to one page of the lengthy
textbook provided by Preston for its discussion of extents. Pet. 25 (citing Preston
241). The limited teachings regarding extents by Preston are directed to the use of
extents to expedite data access by allowing “large contiguous sets of blocks” to be
addressed directly by an extent. Preston, 241. The cited portions of Preston fail to
teach storing an extent to identify a “modified region” of a data volume. Preston,
241. Additionally, Petitioner’s fails to cite to any testimony from its expert as to
how either Preston or Ohran teaches or suggests storing an extent to identify a
“modified region” of a data volume. See Shenoy Decl. ¶ 51. Therefore, based on
the information presented in the Petition, we conclude that Petitioner has not
demonstrated a reasonable likelihood that it will prevail in proving the subject
matter of claims 13 and 16 to be obvious in view of Ohran and Preston.
E. Obviousness of Claims 13 and 16 over Kleiman and either Veritas,
Barker, or Preston
1. Overview of Kleiman
Kleiman discloses a method and system for duplicating all or part of a file
system while maintaining consistent copies of the file system. Kleiman, ¶ [0008].
The file server in Kleiman maintains a set of snapshots that can be used in
duplicating and transferring a backup copy of the file system to a destination
storage medium. Kleiman, ¶ [0008].
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2. Analysis
Similar to the proposed grounds addressed above relying upon Ohran,
Petitioner contends that claims 13 and 16 are obvious in view of Kleiman and
Veritas, Kleiman and Barker, or Kleiman and Preston. Also, like Ohran, Petitioner
concedes that Kleiman fails to teach “storing an extent, wherein said extent
comprises a reference to a modified region of said first set of one or more modified
regions and a length.” Pet. 32. Petitioner relies upon the additional reference of
either Veritas, Barker, or Preston to teach this missing limitation. Pet. 32-44. In
fact, Petitioner cites the same portions of Veritas, Barker, and Preston relied upon
in the challenges based on Ohran as teaching the “storing an extent” limitation.
As discussed above, we agree with Patent Owner’s contention that Veritas,
Barker, and Preston fail to teach storing an extent to identify a “modified region”
of a data volume. Petitioner’s proposed grounds relying on Kleiman fail for the
same reasons as the grounds relying on Ohran. Therefore, based on the
information presented in the Petition, we conclude that Petitioner has not
demonstrated a reasonable likelihood that it will prevail in proving the subject
matter of claims 13 and 16 to be obvious in view of either Kleiman and Veritas,
Kleiman and Barker, or Kleiman and Preston.
F. Obviousness of claims 13 and 16 over DeKoning and Barker
1. Overview of DeKoning
DeKoning discloses remote data mirroring and “fail-over” capabilities in a
computer system, where a local host device stores data on a local storage device on
behalf of various client devices, and mirrors the data storage on a remote storage
device. DeKoning, col. 2, ll. 10-14. The local host device 106 in DeKoning
periodically initiates a “checkpoint” procedure to synchronize data stored
throughout the mirrored storage system. DeKoning, col. 5, ll. 59-62. The
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checkpoint procedure disclosed in DeKoning involves sending checkpoint
information 116 that describes the known coherent state of the data or file system.
DeKoning, col. 6, ll. 11-12.
2. Analysis
Similar to the proposed grounds addressed above relying upon Ohran and
Kleiman, Petitioner contends that claims 13 and 16 are obvious in view of
DeKoning and Barker. Petitioner does not allege that DeKoning teaches “storing
an extent, wherein said extent comprises a reference to a modified region of said
first set of one or more modified regions and a length.” Pet. 32. Petitioner instead
relies upon the Barker for teaching this missing limitation. Pet. 50-51.
As discussed above, we agree with Patent Owner contention that Barker fails
to teach storing an extent to identify a “modified region” of a data volume.
Therefore, based on the information presented in the Petition, we conclude that
Petitioner has not demonstrated a reasonable likelihood that it will prevail in
proving the subject matter of claims 13 and 16 to be obvious in view of DeKoning
and Barker.

III. SUMMARY
Petitioner has not demonstrated that there is a reasonable likelihood of its
prevailing on its challenge to the patentability of claims 13 and 16 of the
'299 patent. The Petition is denied as to all grounds.

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IV. ORDER
For the reasons given, it is
ORDERED that the Petition is denied as to claims 13 and 16.

For PETITIONER:
Lori A. Gordon
Michael Q. Lee
Byron L. Pickard
STERNE, KESSLER, GOLDSTEIN
& FOX PLLC
lgordon-PTAB@skgf.com
mlee-PTAB@skgf.com
bpickard-ptab@skgf.com

For PATENT OWNER:

Joseph J. Richetti
Lawrence G. Kurland
BRYAN CAVE LLP
joe.richetti@bryancave.com
lgkurland@bryancave.com