Paper 17 Tel: Entered: September 5, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE

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1 Paper 17 Tel: Entered: September 5, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD FACEBOOK, INC., Petitioner, v. SOUND VIEW INNOVATIONS, LLC, Patent Owner. Case IPR Before DEBRA K. STEPHENS, JAMES B. ARPIN, and DANIEL J. GALLIGAN, Administrative Patent Judges. ARPIN, Administrative Patent Judge. DECISION Granting Institution of Inter Partes Review 37 C.F.R

2 I. INTRODUCTION A. Background Facebook, Inc. ( Petitioner ) filed a Petition to institute inter partes review of claims 1 3 and 8 10 of U.S. Patent No. 6,125,371 (Ex. 1001, the 371 patent ). Paper 2 ( Pet. ). Sound View Innovations, LLC ( Patent Owner ) filed a Preliminary Response. Paper 7 ( Prelim. Resp. ). Having considered the Petition, the Preliminary Response, and the evidence of record, and applying the standard set forth in 35 U.S.C. 314(a), which requires demonstration of a reasonable likelihood that Petitioner would prevail with respect to at least one challenged claim, we grant Petitioner s request and institute an inter partes review of claims 8 10 of the 371 patent. B. Related Matters The 371 patent is the subject of the following litigation: Sound View Innovations, LLC v. Facebook, Inc., No. 16-cv-116 (RGA) (D. Del.), filed on February 29, Pet. 1; Paper 4, 1. Petitioner explained that, as of the date of this Petition, no claim construction ruling had occurred. Pet. 1. However, on May 19, 2017, the U.S. District Court for Delaware issued a Memorandum Opinion addressing claim construction in the related litigation (Ex. 2001); and on August 10, 2017, district court issued a Memorandum Order addressing claim construction in the related litigation (Ex. 2008). C. The 371 Patent The 371 patent, entitled System and Method for Aging Versions of Data in a Main Memory Database, generally describes systems and methods for managing versions of data records in a database to increase data capacity. Ex. 1001, Abstract, 2: The Background of the 371 patent 2

3 explains that [d]atabase systems typically include a database manager ( DBM ) and a database (i.e., a data repository). Id. at 1: A DBM is a control application that supervises or manages interactions between application tasks and the database. Id. at 1: Figure 1 of the 371 patent is reproduced below. Figure 1 depicts a flow diagram of an exemplary system and method for controlling multi-versioned data records, as recited in claims 1 and 8. Id. at 3: Version manager 100 may be software-based and executable by any suitably arranged processing system 105 (e.g., a computer, communications switch, etc.). Version manager 100 includes three controllers, namely, a time stamping controller 110, a 3

4 versioning controller 115 and an aging controller 120. Those skilled in the art should be familiar with the use of controllers in processing environments generally and, more specifically, with main memory databases. Controllers may be implemented in software, firmware, hardware, or some suitable combination of at least two of the three. Id. at 4: Time stamping controller 110 receives update and read-only transactions for main memory database 125 (step 130). Id. at 4: In response, time stamping controller 110 assigns a time stamp to each received transaction (step 140). Id. at 4: [V]ersioning controller 115 determines whether a given transaction is an update transaction (step 150). Id. at 5:5 7. If the transaction is an update transaction,... versioning controller 115 (1) obtains a X lock on one or more data records to be modified (or otherwise changed), step 155, (2) modifies a copy of the most recent past version of the data record in response to the update transaction, creating a new current or successor version, step 165 and (3) commits the transaction, at which time it increments time stamp counter 145, assigns a time stamp therefrom to the new successor versions of the updated data records and releases the X lock held by the update transaction, step 170. Id. at 5:7 18. Aging controller 120 monitors main memory database 125 to (1) continuously order (e.g., sort, arrange, etc.) multiple versions of data records according to their associated time stamps (step 180) and (2) monitor one or more measurable characteristics describing, relating to, or otherwise associated with a utilization or capacity of main memory 135 (step 185). Id. at 5: Aging controller 120 also deletes earlier versions of data records in response to the time stamp associated with those versions and at least one measurable main memory characteristic (step 190). Id. at 5:

5 D. Illustrative Claims Claims 1 and 8 are independent. Ex. 1001, 9:10 22, 9: Claims 2 and 3 depend from claim 1, and claims 9 and 10 depend from claim 8. Id. at 9:23 27, 9: Claim 8 recites a method of operating a processing system, and claim 1 recites a processing system, in which various controllers perform steps recited in claim 8. Consequently, claim 1 is illustrative and is reproduced below with disputed limitations emphasized: 1. A processing system for use with a database of data records, said database stored in a memory, comprising: a time stamping controller that assigns a time stamp to transactions to be performed on said database; a versioning controller that creates multiple versions of ones of said data records affected by said transactions that are update transactions; and an aging controller that monitors a measurable characteristic of said memory and deletes ones of said multiple versions of said ones of said data records in response to said time stamp and said measurable characteristic thereby to increase a capacity of said memory. Id. at 9:10 22 (emphases added). E. Applied References and Declaration Petitioner relies on the following references and declaration in support of its asserted grounds of unpatentability. Exhibit No. Reference 1002 Declaration of David Klausner 1003 (Parts 1 & 2) Excerpts from Philip A. Bernstein et al., Concurrency Control and Recovery in Database Systems (1987) ( Bernstein ) 1004 U.S. Patent No. 5,155,842 to Rubin ( Rubin ) Pet. iii. 5

6 F. Asserted Ground of Unpatentability Petitioner contends that claims 1 3 and 8 10 of the 371 patent are unpatentable on the following ground: References Basis Challenged Claims Bernstein and Rubin 35 U.S.C. 103(a) 1 3 and 8 10 Pet Standard of Construction II. ANALYSIS A. Claim Construction In an inter partes review, claim terms in an unexpired patent are given their broadest reasonable interpretation in light of the specification of the patent in which they appear. See 37 C.F.R (b). Nevertheless, [a] party may request [in the form of a motion] a district court-type claim construction approach to be applied if a party certifies that the involved patent will expire within 18 months from the entry of the Notice of Filing Date Accorded to Petition. Id. In this proceeding, Patent Owner timely filed a motion pursuant to 37 C.F.R (b) (1) certifying that the 371 patent will expire within 18 months from the entry of the Notice of Filing Date Accorded to Petition, i.e., February 28, 2017 (Paper 3); and (2) requesting district court-type claim construction. 1 Paper 6, 1. Petitioner did not oppose Patent Owner s motion. Ex. 2007, 14:14 16, 18:6 14; see 37 C.F.R Consequently, we granted Patent Owner s unopposed 1 Patent Owner states that the 371 patent expired on August 19, Prelim. Resp. 1. 6

7 motion requesting district court-type claim construction. Paper 8; see Prelim. Resp In applying district court-type construction, we are guided by the principle that the words of a claim are generally given their ordinary and customary meaning, as understood by a person of ordinary skill in the art in question at the time of the invention. Phillips v. AWH Corp., 415 F.3d 1303, (Fed. Cir. 2005) (en banc) (citation omitted). In determining the meaning of the disputed claim limitation, we look principally to the intrinsic evidence of record, examining the claim language itself, the written description, and the prosecution history, if in evidence. DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 469 F.3d 1005, 1014 (Fed. Cir. 2006) (citing Phillips, 415 F.3d at ). There is a heavy presumption, however, that a claim term carries its ordinary and customary meaning. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002) (citation omitted). 2. Means-Plus-Function Limitations With regard to the construction of means-plus-function limitations under 35 U.S.C. 112, 6, the same two-step analysis applies under both the broadest reasonable interpretation and district court-type standards. In particular, our reviewing court recently explained that the construction of a means-plus-function limitation under must look to the specification and interpret that language in light of the corresponding structure, material, or acts described therein, and equivalents thereof, to the extent that the specification provides such disclosure. We h[e]ld that paragraph six applies regardless of the context in which the interpretation of means-plus-function language arises, i.e., whether as part of a patentability determination in the PTO or as part of a validity or infringement determination in a court. 7

8 In other words, sets a limit on how broadly the PTO may construe means-plus-function language under the rubric of reasonable interpretation, and the PTO may not disregard the structure disclosed in the specification corresponding to such language when rendering a patentability determination. IPCom GmbH & Co. v. HTC Corp., 861 F.3d 1362, (Fed. Cir. 2017) (emphasis added; citations omitted; quoting In re Donaldson Co., 16 F.3d 1189, (Fed. Cir. 1994) (en banc)); see Williamson v. Citrix Online, LLC, 792 F.3d 1339, (Fed. Cir. 2015) (en banc in relevant part)). When construing a means-plus-function limitation, 112, 6, requires us to perform a two-step analysis. First, [we must] identif[y] the particular claimed function. Second, [we must] look [ ] to the specification and identif[y] the corresponding structure, material, or acts that perform that function. IPCom, 861 F.3d at 1370 (citations omitted). This is true whatever the applied standard of construction. 3. Petitioner s Proposed Constructions Petitioner proposes constructions for the following claim terms: (1) update transactions (claims 1 and 8), (2) data record (claims 1 and 8), and (3) controller (claim 1). Pet In particular, Petitioner argues that (1) update transactions are transactions that modify portions of the database (id. at 4), (2) data record is any file, entry, record, field, item and other data associated with at least one database (id. (quoting Ex. 1001, 3:57 60)), and (3) controller should be accorded its plain and ordinary meaning based on the specification, and thus, need not be explicitly construed (id. at 7). Petitioner proposes that each of these constructions is the broadest reasonable interpretation of these claim terms. Id. at 3; see Prelim. Resp

9 a. update transactions and data record Petitioner argues that the terms update transactions and data record are defined in the Specification of the 371 patent, and Petitioner argues that these terms, as well as the term controller, should be given their broadest reasonable interpretation. See Pet. 4; Prelim. Resp. 20. For the reasons set forth above, however, each of the disputed claims terms shall be given a district court-type construction in this proceeding. The terms update transactions and data record appear in claim 8, as well as claim 1. Pet We agree with Petitioner that these terms are defined in the Specification of the 371 patent. Id. In particular, [t]he 371 patent expressly defines update transactions as transactions that modify portions of the database (id. at 4 (quoting Ex. 1001, 1:51 54); see Ex ); and [t]he 371 patent also provides an explicit definition of data record, stating that the phrase data record, as used herein, is defined broadly to mean any file, entry, record, field, item and other data associated with at least one database (or any suitable data repository for that matter)... (id. (quoting Ex. 1001, 3:57 60); see Ex ); see Phillips, 415 F.3d at 1315 ( [T]he specification is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term. ). Further, Patent Owner does not provide an alternative construction for either term. See Prelim. Resp. 20. Given the clarity of the definitions set forth in the Specification, we are persuaded that the construction of these terms would not differ significantly regardless the standard applied. See In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). Therefore, to the extent necessary and for purposes of this Decision, we adopt Petitioner s proposed constructions of these terms. 9

10 b. controller Although Petitioner acknowledges that it argued in the related proceeding in district court (see supra Section I.B.) that controller is a nonce word and that the use of the term controller invokes means-plusfunction treatment under 35 U.S.C. 112, 6, Petitioner does not argue that controller is a nonce word or for means-plus-function treatment in this proceeding. Pet Specifically, [t]he Petitioner does not contend, under the broadest reasonable interpretation standard applicable in this IPR proceeding, that the controller terms should be treated as means-plusfunction limitations under 35 U.S.C. 112, 6. Id. Nevertheless, Petitioner states that [u]nder the narrower Phillips claim construction standard applicable in litigation, the controller terms would be subject to 112, 6 treatment and are indefinite. Id. at 7 n.1. As noted above, Patent Owner moved for district court-type construction, e.g., Phillips claim construction, in this proceeding, and Petitioner did not oppose Patent Owner s motion requesting district courttype claim construction. Thus, claims terms will be construed under district court-type construction and, by Petitioner s own admission, under that construction standard, the term controller is subject to means-plusfunction treatment under 35 U.S.C. 112, 6. Id. Petitioner also argues that, given that district court-type claim construction now is applied in this case, claim 1 is indefinite. Id. In an inter partes review, however, a petitioner may not challenge the patentability of a claim due to indefiniteness under 35 U.S.C. 112, 2. See 35 U.S.C. 311(b); 37 C.F.R (b)(2). Nevertheless, to the extent the differences between the claimed invention and the prior art cannot be 10

11 determined, we would not institute review of such a claim. Blackberry Corp. v. MobileMedia Ideas, LLC, Case IPR , slip op. at 8 (PTAB Mar. 7, 2014) (Paper 65) ( Consequently, the differences between the claimed invention and the prior art cannot be determined. In this circumstance, the analysis begins and ends with the claims, and we do not attempt to apply the claims to the prior art. ); see Apple Inc. v. Valencell, Inc., Case IPR , slip op. at (PTAB June 12, 2017) (Paper 10) ( If the scope and meaning of the claims cannot be determined without speculation, the differences between the challenged claims and the prior art cannot be ascertained. ). Patent Owner contends that we apply the same standard for determining whether a claim term is definite regardless of whether the patent has expired or not. Prelim. Resp For the reasons set forth below, we do not need to construe this claim term or determine its definiteness. Despite asserting that under district court-type claim construction, the term controller would be subject to treatment under 35 U.S.C. 112, 6, Petitioner does not provide a construction according to that treatment. Pet In its Reply to Patent Owner s Preliminary Response, Petitioner argues that the district court in the related litigation found that the term controller was not subject to treatment under 35 U.S.C. 112, 6. Paper 14 ( Reply ), 1 (citing Ex. 2001, 10 12). Nevertheless, as we explained to the parties, we are not bound by the claim construction of the district court even when both of us are applying district court-type claim construction. See Power Integrations, Inc. v. Lee, 797 F.3d 1318, 1326 (Fed. Cir. 2015) ( There is no dispute that the board is not generally bound by a prior judicial construction of a claim term. ); see Ex. 2007, 6:18 7:6. 11

12 Because of differences in counsel and procedures before the district court and the Board, the parties may present different arguments and evidence to each tribunal in support of their constructions. Consequently, even when applying the same standard, we may arrive at different constructions. To the extent that a ruling from the district court may be informative here, we do not understand the district court s opinion to represent its final determination on claim construction. Ex. 2001, 12 2 ( Having found [Petitioner] fails to overcome the presumption that controller is not a functional term, I decline to construe the term because no alternative constructions have been proposed by either party. (emphasis added)); see also Ex :20 11:9 (discussing the effect of a stay of the related litigation). Petitioner further argues that [t]he district court s claim conclusion regarding the controller terms is consistent with the position taken by both the Petitioner and the Patent Owner in the present proceeding, i.e., that the term controller should not be construed under 35 U.S.C Reply 1 (emphasis added). This statement is incorrect. Petitioner clearly has taken the position that, if district court type claim construction is applied, the term controller must be subject to treatment under 35 U.S.C. 112, 6. Pet. 7 n.1. In view of its decision not to oppose Patent Owner s motion for district court-type claim construction, Petitioner s proposed construction of the term controller and its statements regarding the term s treatment under 35 U.S.C. 112, 6, are clearly inconsistent. Reply 2 ( Petitioner does not dispute that the Board should apply the Phillips standard in view of Patent Owner s unopposed motion to do so. ). 2 Our citations are to the page numbers of this document itself, rather than to the page numbers of Exhibit

13 Under our Rules, [w]here the claim to be construed contains a means-plus-function or step-plus-function limitation as permitted under 35 U.S.C. [ 112, 6], the construction of the claim must identify the specific portions of the specification that describe the structure, material, or acts corresponding to each claimed function. 37 C.F.R (b)(3) (emphasis added); see 35 U.S.C. 312(a)(4) ( the petition provides such other information as the Director may require by regulation ); Prelim. Resp Here, Petitioner asserts that, under district court-type claim construction, the term controller is subject to treatment under 35 U.S.C. 112, 6, but Petitioner provides no construction according to that treatment. See Reply 1 2; Prelim. Resp More importantly, Petitioner s arguments and evidence mapping the limitations of claims 1 3 to the combined teachings of Bernstein and Rubin are not based on a meansplus-function construction of the term controller. E.g., Pet (mapping the time stamping controller of claim 1 to Bernstein s teachings); see Prelim. Resp. 22. On this record, we need not assess whether the term controller is subject to treatment under 35 U.S.C. 112, 6, and, if so, whether the combined teachings of Bernstein and Rubin teach or suggest such a controller because, although Petitioner unequivocally asserts that it is, Petitioner provides no construction of the term controller under 35 U.S.C. 112, 6, for our consideration. See 37 C.F.R (b)(3) (quoted above). We will not make arguments for Petitioner, and we cannot disregard Petitioner s unequivocal statement regarding the construction of this claim term. See Prelim. Resp The analysis of Petitioner s arguments regarding claims 1 3 begins and ends with Petitioner s failure to provide 13

14 constructions of the claim terms including controller under 35 U.S.C. 112, 6, and we cannot evaluate Petitioner s asserted ground with respect to claims 1 3 in the absence of such constructions. See Blackberry, Case IPR , slip op. at 8 (Paper 65). We determine no other terms require express construction at this time. 3 See, e.g., Wellman, Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1361 (Fed. Cir. 2011) ( [C]laim terms need only be construed to the extent necessary to resolve the controversy. ) (quoting Vivid Techs., Inc. v. Am. Sci. & Eng g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)). 1. Overview B. Asserted Grounds Petitioner argues 8 10 of the 371 patent are rendered obvious over the combined teachings of Bernstein and Rubin and relies upon the Declaration of Mr. David Klausner (Ex. 1002) to support its arguments. Pet. 3, For the reasons set forth below, we grant institution of inter partes review of these claims on this ground. 2. Legal Principles A patent claim is unpatentable under 35 U.S.C. 103(a) if the differences between the claimed subject matter and the prior art are such that the subject matter, as a whole, would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said 3 According to Patent Owner, Petitioner contends before the district court that the term time stamp counter, which is recited in claims 2, 3, 9, and 10, also is indefinite. Prelim. Resp. 2 3, 5; see Ex. 2002, 22. However, neither party proposes a construction for this term, and we need not construe terms that are not in dispute or the construction of which is not necessary to resolve the controversy in this proceeding. 14

15 subject matter pertains. KSR Int l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of obviousness is resolved on the basis of underlying factual determinations including: (1) the scope and content of the prior art; (2) any differences between the claimed subject matter and the prior art; (3) the level of ordinary skill in the art; 4 and (4) objective evidence of nonobviousness. 5 Graham v. John Deere Co., 383 U.S. 1, (1966). 3. Obviousness of Claims 8 10 over the Combined Teachings of Bernstein and Rubin a. Bernstein (Ex. 1003, Parts 1 and 2) Bernstein is a 1987 textbook on database systems, entitled Concurrency Control and Recovery in Database Systems. Bernstein explains that [a] database consists of a set of named data items. Ex. 1003, 2. 6 Each data item has a value. Id. A database system (DBS) is a collection of hardware and software modules that support commands to access the database, called database operations (or simply operations). Id. For example, a Read(x) operation returns the value stored in data item x, while a Write(x, val) operation changes the value of x to val. Id. 4 Petitioner proposes an assessment of the level of ordinary skill in the art. Pet. 7 n.2; see Ex Petitioner s declarant, Mr. Klausner, exceeds this assessed level. Ex At this time, Patent Owner does not propose an alternative assessment. But see Prelim. Resp For purposes of this Decision, and to the extent necessary, we adopt Petitioner s assessment. 5 Patent Owner does not present arguments or evidence of such secondary considerations in the Preliminary Response. 6 Our citations are to the page numbers of the Bernstein reference itself, rather than to the page numbers of Exhibit

16 Bernstein teaches a number of techniques for addressing concurrent access problems. Id. at 1. In particular, Bernstein explains that [w]hen two or more transactions execute concurrently, their database operations execute in an interleaved fashion. That is, operations from one program may execute in between two operations from another program. This interleaving can cause programs to behave incorrectly, or interfere, thereby leading to an inconsistent database. Id. at 11. One of the techniques described in Bernstein to provide concurrency control is referred to as multiversion concurrency control. Id. at 143. In a multiversion concurrency control algorithm, each Write on a data item x produces a new copy (or version) of x. Id. Thus, when a database operation modifies the value of a data item, the system creates a new version of that item. The benefit of multiple versions for concurrency control is to help the scheduler avoid rejecting operations that arrive too late. Id. Bernstein explains that with multiversion concurrency control, each transaction has a unique timestamp, and that [e]ach operation carries the timestamp of its corresponding transaction. Id. at 153; see also id. at 5 ( transactions that write into the database (called update transactions or updaters.) ). For example, as noted above, each Write operation produces a new copy or version of x (id. at 143), and the new version is labeled by the timestamp of the transaction that wrote it. Id. at 153. Bernstein acknowledges that [a]n obvious cost of maintaining multiple versions is storage space. To control this storage requirement, versions must periodically be purged or archived. Id. at Bernstein explains that versions may be purged or archived when the system has run out of storage space. In particular, Bernstein teaches that: 16

17 Eventually, the scheduler will run out of space for storing intervals, or the [data manager] will run out of space for storing versions. At this point, old versions and their corresponding intervals must be deleted. To avoid incorrect behavior, it is essential that versions be deleted from oldest to newest. Id. at 154. b. Rubin (Ex. 1004) Rubin, entitled Logical Event Notification Method and Apparatus, discloses a technique for monitoring devices and programs in a computer network for certain events (such as running out of storage space), and notifying other programs that those events have occurred. Ex. 1004, Abstract. Rubin s Figure 1 is reproduced below. Figure 1 depicts a schematic of a logical event notification flow from an operating program, through the alert database to a receiving program. Id. at 2: Operating programs 10, 12, and 14 perform functions for controlling devices or are controlled by devices or the network. Id. at 3: The operating program is the source of the event; it may be referred to 17

18 as the source program. As programs operate on the network, logical events occur. Id. at 3:12 14; see also id. at 4:64 65 ( Any program operating on the network may become a source program. ). Rubin teaches a variety of logical events that may be produced by source programs. Id. at 2:51 53 ( A further advantage of the invention is that the event triggering the notification in the operating program is software defined. ). In particular, Rubin teaches that the logical events may include disk events, such as, disk full, disk approaching a threshold full level, disk error, failure in reading disk, failure to write data to disk, or the like. Id. at 6: Once the operating program detects a logical event, it invokes alert database 16. Id. at 3: Alert database 16 maintains a record of which programs receive notification of the event, i.e., receiving programs 18, 20, and 21. Id. at 3: While receiving programs 18 and 20 notify a user (id. at 3:38 41) or a system administrator (id. at 3:54 56) of the occurrence of an event, other receiving programs 21 perform other functions. For example, [o]ther receiving programs 21 may store the event or take action based on the event type[.] Id. at 3: That action can include automatically deleting older programs when Rubin s system determines that the data stored on the disk has reached, exceeds, or is approaching a threshold amount. In one embodiment of the invention, the system administrator is automatically alerted whenever the quantity of data on the disk exceeds a threshold amount. The administrator may then take action to conserve disk space or delete programs. The program may automatically delete the oldest versions of some programs to obtain more disk space. The program may 18

19 send mail to users using significant disk space and ask them to clean-up [] their databases and remove unnecessary data. Id. at 5:24 32 (emphasis added). c. Independent Claim 8 Petitioner provides a detailed mapping of the limitations of claim 1 on the software and hardware and functionality taught by Bernstein and Rubin. Pet ; see Ex Because, as noted above (see supra Section II.A.3.b.), Petitioner fails to provide a means-plus-function construction of the controller terms of claim 1, Petitioner cannot show that the limitations of claims 1 3 are taught or suggested by the combined teachings of Bernstein and Rubin. Nevertheless, Petitioner maps the limitations of claim 1 to those of claim 8. Pet ; see Ex Claim 8 is directed to [a] method of operating a processing system for use with a database of data records, said database stored in a memory and does not recite the controllers of claim 1. Ex. 1001, 9: Consequently, Petitioner argues that the method steps recited in claim 8 are identical to the functions of the controllers recited in claim 1 and that, for the reasons discussed for claim 1, claim 8 would have been obvious over Bernstein in view of Rubin. Pet. 36; see Ex On this record and for purposes of this Decision, we agree. Claim 8 recites [a] method of operating a processing system for use with a database of data records, said database stored in a memory. Petitioner argues Bernstein teaches database systems, which store data items in memory. Pet (citing Ex. 1003, 2); see Ex As noted above (see supra Section II.A.3.a.), we construe data record to mean any 19

20 file, entry, record, field, item and other data associated with at least one database (or any suitable data repository for that matter)... (Pet. 4 (quoting Ex. 1001, 3:57 60 (emphasis added)); see Ex ). Thus, we are persuaded that Bernstein teaches the preamble of claim 8. Claim 8 further recites the step of assigning a time stamp to transactions to be performed on said database. Bernstein teaches that [a]s for all [timestamp ordering ( TO )] schedulers, each transaction has a unique timestamp, denoted ts(ti). Each operation carries the timestamp of its corresponding transaction. Each version is labeled by the timestamp of the transaction that wrote it. Ex. 1003, 153 (quoted at Pet. 18); see Ex Thus, we are persuaded that Bernstein teaches this limitation of claim 8. In addition, claim 8 recites the step of creating multiple versions of ones of said data records affected by said transactions that are update transactions. According to Petitioner, Bernstein teaches that when a Write operation is to be performed on an item in the database, the software generates a new version of the item. Pet. 21. Thus, [i]n a multiversion concurrency control algorithm, each Write on a data item x produces a new copy (or version) of x. The [data manager ( DM )] that manages x therefore keeps a list of versions of x, which is the history of values that the DM has assigned to x. Ex. 1003, 143. As discussed above, the operation Write(x, val) changes the value of x to val. Pet. 22 (quoting Ex. 1003, 2); see Ex , 49. Although Bernstein refers to an operation, rather than a transaction, we credit Petitioner s declarant s testimony that this difference is immaterial. Ex ; see Ex. 1003, 2 (referring to 20

21 database operations (or simply operations) ). 7 Thus, we are persuaded that Bernstein teaches this limitation of claim 8. Moreover, claim 8 recites the step of monitoring a measurable characteristic of said memory. With regard to this step: The Petitioner acknowledges that Bernstein does not explain how, from a technical standpoint, the system in Bernstein determines that it has run out of space for storing intervals or versions. It is possible that the patent owner might take a narrow position on the monitoring limitation in order to assert that Bernstein alone does not sufficiently disclose the claimed monitoring feature, or could argue for a different interpretation of the teachings of Bernstein. For this reason, this Petition also cites to the Rubin reference. Rubin clearly and explicitly discloses the claimed monitoring feature and, as explained above, is readily combinable with the database system in Bernstein. Pet. 25; see Ex Thus, Petitioner argues that Bernstein s teaching that the scheduler or the database manager eventually may run out of space for storing and that older versions of stored intervals may need to be deleted (Ex. 1003, 154), may supply this limitation. According to Patent Owner, however, Petitioner relies upon the combined teachings of Bernstein and Rubin to teach this limitation. See Prelim. Resp. 29 n.4 (discussing obviousness over Bernstein alone). In particular, Petitioner argues that Rubin discloses a technique of monitoring logical events on a network and notifying programs desiring information on specified types of events. [Ex. 1004, 1:68 2:2.] These logical events can include disk events, such as, disk full, disk approaching a threshold full level, disk error, failure in 7 We note, however, that Bernstein also teaches transactions that write into the database are called update transactions or updaters. Ex. 1003, 5. 21

22 reading disk, failure to write data to disk, or the like. [id. at 6:43 49.] Id. at (underlining added by Petitioner). Further, Rubin teaches that the system administrator is automatically alerted whenever the quantity of data on the disk exceeds a threshold amount. Ex. 1004, 5:24 26 (emphasis added). Thus, because Rubin teaches determining the quantity of data on the disk and comparing that quantity to a threshold amount, we are persuaded that Rubin teaches monitoring a measurable characteristic of said memory. See id. Petitioner argues that a person of ordinary skill in the art would have had reason to combine the teachings of Bernstein and Rubin to achieve this limitation. Pet ; see Ex In particular, Bernstein teaches that: Eventually, the scheduler will run out of space for storing intervals, or the [database manager] will run out of space for storing versions. At this point, old versions and their corresponding intervals must be deleted. To avoid incorrect behavior, it is essential that versions be deleted from oldest to newest. Ex. 1003, 154 (emphasis added). Thus, Bernstein teaches deleting older versions only after the scheduler or the database manager has run out of storage space. Id.; see also Pet. 29; see Ex As Petitioner s declarant notes, Rubin, however, teaches notifying a write program when a disk [is] approaching a threshold full level. Ex (citing Ex. 1004, 5:24 32, 6:44 45). Petitioner s declarant further testifies that Rubin offers a significant improvement of notifying the write program of a potential shortage of storage space before storage space has actually run out. Id. (emphasis added); see KSR, 550 U.S. at 417 ( [I]f a technique has 22

23 been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill. ); In re Ethicon, 844 F.3d 1344, 1351 (Fed. Cir. 2017) ( The normal desire of artisans to improve upon what is already generally known can provide the motivation to optimize variables such as the percentage of a known polymer for use in a known device. ). Patent Owner contends that a person having the level of skill in the art identified by Petitioner and its declarant would not have had the necessary skills to modify Bernstein s system in view of Rubin s teachings to achieve the recited method. Prelim. Resp On this record, however, we credit Mr. Klausner s testimony that a person of ordinary skill in the art would have reason (see Ex , 76) and the necessary understanding (see id. 71, 74) to combine the teachings of Bernstein and Rubin in the manner proposed. Moreover, Patent Owner relies on a Wikipedia posting (Ex. 2005) in support of its contentions. Prelim. Resp. 27. Initially, we note that the Wikipedia posting was last edited on 24 May 2017, at 22:11, many years after the effective filing date of the 371 patent. Ex. 2005, 11. Given known deficiencies in Wikipedia postings, on this record and for this preliminary proceeding, we do not credit this evidence over the testimony of Petitioner s declarant. See Ex parte Daum, Appeal No , slip op. at (PTAB Sept. 16, 2014) (The Board stated that Wikipedia, as a website, can be an unreliable source of information for purposes of resolving legal disputes, because (1) it is not peer reviewed; (2) the authors are unknown; and (3) apparently anyone can contribute to its content. ). Thus, for the reasons set forth by Petitioner (Pet ), we are persuaded 23

24 that a person of ordinary skill in the art would have had reason to combine the teachings of Bernstein and Rubin in the manner proposed by Petitioner. Patent Owner also contends the combined teachings of Bernstein and Rubin would result in Rubin being unable to perform the same function that it previously performed. Prelim. Resp. 28. In particular, Patent Owner contends that Rubin requires the removal of unnecessary data from the data base, rather than merely the oldest data. Id. at (citing Ex. 1004, 5:24 34). We disagree. First, we note that Rubin teaches that [t]he program may automatically delete the oldest versions of some programs to obtain more disk space. The program may send mail to users using significant disk space and ask them to clean-up [] their databases and remove unnecessary data. Ex. 1004, 5:28 32 (emphases added). Thus, we understand Rubin to describe two optional actions that may be taken to conserve disk space or delete programs. Id. at 5:27 28 (emphasis added). Second, the quoted text describes only one embodiment of Rubin s invention (id. at 5:24 26), and, on this record, we are not persuaded that both optional actions must be included in every embodiment of Rubin. Thus, we are not persuaded that the combined teachings of Bernstein and Rubin would render Rubin unsuitable for its intended purpose or change its principle of operation. 8 8 Patent Owner also contends that the Petitioner fails to demonstrate that the combined teachings of Bernstein and Rubin teach or suggest the controllers of claims 1 3. Prelim. Resp Because we deny institution of review of claims 1 3 for other reasons (see supra Section II.A.3.b.) and because claims 8 10 do not recite controllers, we need not discuss these contentions further. 24

25 Finally, claim 8 recites the step of deleting ones of said multiple versions of said ones of said data records in response to said time stamp and said measurable characteristic thereby to increase a capacity of said memory. Petitioner argues that Bernstein teaches deleting old versions of data items and their corresponding intervals to recover storage space. Pet. 32 (citing Ex. 1003, 154). Further, because the deletions may be based on the age of the version, as well as the storage space available, Petitioner argues the combined teachings of Bernstein and Rubin teach that such deletions are in response to said time stamp and said measurable characteristic. Id. at (citing Ex. 1003, 154; Ex. 1004, 5:24 32); see Ex ; see also Ex. 1004, 153 ( largest, i.e., latest, time stamp), 161 ( smallest, i.e., earliest time stamp). Moreover, Petitioner argues that these deletions are intended to increase [the] capacity of said memory. Pet. 34 (citing Ex. 1003, 154, 161; Ex. 1004, 5:28 30); see Ex We agree. On this record, we are persuaded that Petitioner has established a reasonable likelihood of prevailing in showing that claim 8 is unpatentable under 35 U.S.C. 103(a) as obvious over the combined teachings of Bernstein and Rubin. d. Dependent Claims 9 and 10 Claim 9 depends directly from claim 8, and claim 10 depends directly from claim 9. Ex. 1001, 9: Specifically, claim 9 recites that in the method of claim 8 said time stamp is generated as a function of a time stamp counter, and claim 10 recites that the method of claim 9 further comprises the step of incrementing said time stamp counter. Petitioner 25

26 argues that these claims are rendered obvious over the combined teachings of Bernstein and Rubin. Pet. 35, 37; see Ex n.1. We agree. Initially, we note that the additional limitations of claims 2 and 3 are essentially identical to those of claims 9 and 10. Pet. 37. Petitioner argues that Bernstein teaches that the transaction manager ( TM ) usually generates a timestamp by using an incremented counter. Id. at 35 (referring to claims 2 and 3). In particular, Bernstein teaches that [u]sually, TMs assign timestamps to transactions. If there is only one TM in the entire system, then it can easily generate timestamps by maintaining a counter. To generate a new timestamp, it simply increments the counter and uses the resulting value. Ex. 1003, 85 (emphases added). Petitioner argues that the quoted portion of Bernstein teaches the use of a counter recited in claim 9 and the incrementing of that counter recited in claim 10. Pet , 37; see Ex , 65. At this time, Patent Owner does not contest Petitioner s arguments and evidence with respect to claim 9 and 10. On this record, we are persuaded that Petitioner has established a reasonable likelihood of prevailing in showing that claims 9 and 10 are unpatentable under 35 U.S.C. 103(a) as obvious over the combined teachings of Bernstein and Rubin. III. CONCLUSION For the foregoing reasons, we are persuaded that Petitioner has shown a reasonable likelihood of prevailing in showing that claims 8 10 of the 371 patent would have been obvious over the combined teachings of Bernstein and Rubin. We have not made a final determination with respect to the patentability of any challenged claim or the construction of any claim term. 26

27 Accordingly, it is: IV. ORDER ORDERED that pursuant to 35 U.S.C. 314(a), an inter partes review is hereby instituted as to claims 8 10 of the 371 patent on the following ground: Claims 8 10 as unpatentable under 35 U.S.C. 103(a) as rendered obvious over the combined teachings of Bernstein and Rubin; FURTHER ORDERED that no other ground of unpatentability is authorized for this inter partes review as to these or any other claims of the 371 patent; and FURTHER ORDERED that pursuant to 35 U.S.C. 314(c) and 37 C.F.R. 42.4, notice is hereby given of the institution of a trial. The trial will commence on the entry date of this decision. 27

28 For PETITIONER: Heidi L. Keefe Phillip Morton Andrew C. Mace COOLEY LLP For PATENT OWNER: Kenneth J. Weatherwax Nathan Lowenstein LOWENSTEIN & WEATHERWAX LLP 28

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