UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD. AVOCENT HUNTSVILLE CORP. AND LIEBERT CORP.

Transcription

1 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD AVOCENT HUNTSVILLE CORP. AND LIEBERT CORP., Petitioners v. CYBER SWITCHING PATENTS, LLC Patent Owner Case IPR Patent 7,672,104 B2 PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 7,672,104

2 TABLE OF CONTENTS I. INTRODUCTION... 1 II. MANDATORY NOTICES UNDER 37 C.F.R A. Real Parties in Interest under 37 C.F.R. 42.8(b)(1)... 2 B. Related Matters under 37 C.F.R. 42.8(b)(2)... 2 C. Lead and Backup Counsel under 37 C.F.R. 42.8(b)(3)... 3 D. Service Information under 37 C.F.R. 42.8(b)(4)... 3 III. REQUIREMENTS FOR IPR UNDER 37 C.F.R A. Grounds for Standing under 37 C.F.R (a)... 3 B. Identification of Challenges under 37 C.F.R (b) and Relief Requested... 4 IV. THE 104 PATENT... 4 A. Discussion of Embodiments and Disclosure... 4 B. The Claims Being Challenged... 5 C. Claim Construction Legal Standard for Claim Construction Terms to be Construed... 7 a) Power distribution unit... 7 b) Sampling/reading... 8 c) Programming/programmable d) Network D. Priority Claims and File History Parent Applications The 104 Patent s File History V. THE GROUNDS OF REJECTION RENDER CLAIMS 1-3 AND 8-12 OBVIOUS A. Ground 1: Claims 1-3 and 8-12 are Obvious Over Spitaels alone Spitaels Discloses or Suggests all Features of Claims 1-3 and i

3 a) Claims 1 and b) Claims 2 and c) Claims 3 and d) Claim e) Claim B. Ground 2: Claims 1-3 and 8-12 are obvious under 35 U.S.C. 103(a) over Ewing alone Summary of Ewing Detailed Explanation of the Obviousness of Claims 1-3 and 8-12 in view of Ewing under 37 C.F.R (a)(2) a) Claims 1 and b) Claims 2 and c) Claims 3 and d) Claim e) Claim C. Ground 3: Claims 1-3 and 8-12 are Obvious Over Johnson in view of APA APA discloses outlet receptacles for receiving plugs of load devices having cords Johnson discloses the Remaining Features of the Claims a) Claims 1 and b) Claims 2 and c) Claims 3 and d) Claim e) Claim D. Ground 4: Claims 1-3 and 8-12 are Obvious Over Megret in view of APA APA Discloses Cords and Plugs, and Megret Discloses or Suggests the Remaining Features of Claims 1-3 and a) Claims 1 and b) Claims 2 and ii

4 c) Claims 3 and d) Claim e) Claim VI. CONCLUSION iii

5 TABLE OF AUTHORITIES Cases Intri-plex Technologies, Inc. et al. v. Saint-Gobain Performance Plastics Rencol Ltd., IPR , paper 83 (PTAB March 23, 2014)... 40, 41 PSC Computer Prods., Inc. v. Foxconn Int l, Inc., 355 F.3d 1353 (Fed. Cir. 2004) Statutes 35 U.S.C. 102(a)... 40, 41, U.S.C. 102(b)... 40, U.S.C. 102(e)... 15, 25, 40, U.S.C. 103(a) U.S.C U.S.C U.S.C. 325(d) Rules 37 C.F.R (b) C.F.R (b) C.F.R (a)... 3 iv

6 LIST OF PETITIONERS EXHIBITS Exhibit No. Description Ex U.S. Patent No. 7,672,104 (the 104 patent ) Ex File History of U.S. Patent No. 7,672,104 Ex U.S. Patent No. 5,596,473 ( Johnson ) Ex U.S. Patent No. 6,721,672 ( Spitaels ) Ex French Patent Publication No. FR Ex Affidavit and Certified Translation of French Patent Publication No. FR ( Megret ) Ex U.S. Patent No. 7,099,934 ( Ewing ) Ex U.S. Patent No. 7,043,543 ( Ewing 543 ) Ex Declaration of Scott A. Denning ( Denning ) Ex U.S. Provisional Application No. 60/378,342 ( Provisional ) Ex File History of U.S. Non-Provisional Application No. 10/431,333 (the 333 application ) Ex File History of U.S. Non-Provisional Application No. 10/870,621 ( the 621 application ) v

7 I. INTRODUCTION Avocent Huntsville Corp. and Liebert Corp. ( Petitioners ) petition for Inter Partes Review ( IPR ) under 35 U.S.C and 37 C.F.R., Part 42 of claims 1-3 and 8-12 of U.S. Patent No. 7,672,104 (the 104 patent or Reynolds ) (Ex. 1001), purportedly assigned to Cyber Switching Patents, LLC. The 104 patent contends that its novel feature provides per-outlet current monitoring for a plurality of controlled outlets. Ex at 12: The claims of the 104 patent disclose a current protection method and software that senses current on multiple power outlets, compares the sensed currents against threshold levels, and interrupts the current for only the outlet(s) exceeding the threshold level. However, these features were well known to one of skill in the art long before the 104 patent s earliest possible effective filing date. As grounds for cancellation of claims 1-3 and 8-12 of the 104 patent, this petition relies on: (1) U.S. Patent No. 6,721,672 to Spitaels ( Spitaels ), (2) U.S. Patent No. 7,099,934 to Ewing et al. ( Ewing ), (3) U.S. Patent No. 5,596,473 to Johnson et al. ( Johnson ), (4) French Patent publication No. 2,358,177 to Megret and the attested-to translation thereof ( Megret ), and (5) Admitted Prior Art ( APA ). Spitaels, Ewing, and Megret were not before the Patent Office during prosecution, and these grounds are not redundant because each challenge renders the claims obvious with different modifications to the respective base references. 1

8 As shown below, there is a reasonable likelihood that Petitioners will prevail with respect to at least on 1 of the challenged claims. The required fee is being paid through the Patent Review Processing System. Please charge any fee deficiency, or credit any overpayment, to Deposit Acct. No II. MANDATORY NOTICES UNDER 37 C.F.R A. Real Parties in Interest under 37 C.F.R. 42.8(b)(1) Avocent Huntsville Corp. and Liebert Corporation are the Petitioners. Emerson Electric Co. is also a real party-in-interest. B. Related Matters under 37 C.F.R. 42.8(b)(2) The 104 patent has been asserted in the U.S. District Court (N.D. Cal.) against Chatsworth, Inc., Case No. 4:14-cv (dismissed); Eaton Corporation, Case No. 4:14-cv (dismissed); Avocent Huntsville Corp., et al., Case No. 4:14-cv (active); Raritan Inc., et al. Case No. 4:14-cv (dismissed); Schneider Electric IT USA, Inc., et al. Case No. 4:14-cv (dismissed); Server Technology, Inc., et al. Case No. 4:14-cv (dismissed); and Methode Electronics, Inc., Case No. 4:14-cv (dismissed). Petitioners have also filed IPR and IPR for inter partes review against U.S. Patent No. 7,550,870 (the 870 patent ), which is related to the 104 patent and shares common priority claims to U.S. provisional patent application No. 60/378,342 (Ex. 1010) and non-provisional application No. 10/431,333 (Ex. 1011). 2

9 C. Lead and Backup Counsel under 37 C.F.R. 42.8(b)(3) Lead counsel is Donald L. Jackson (Reg. No. 41,090) of Davidson Berquist Jackson & Gowdey L.L.P., 8300 Greensboro Drive, Suite 500, McLean, VA 22102; Tel.: , Fax: , Back-up counsel includes Wayne M. Helge (Reg. No. 56,905) at the same firm and address, Michael C. Jones (Reg. No. 63,266) of Procopio, Cory, Hargreaves & Savitch LLP, 1020 Marsh Road, Suite 200, Menlo Park CA 94025, Tel.: , Fax: , and Robert H. Sloss (will move for admission pro hac vice), also of Procopio at the same address, D. Service Information under 37 C.F.R. 42.8(b)(4) Documents may be delivered by hand to the addresses of lead and back-up counsel above. Petitioners consent to electronic service by . III. REQUIREMENTS FOR IPR UNDER 37 C.F.R A. Grounds for Standing under 37 C.F.R (a) In accordance with 37 C.F.R (a), Petitioners certify that the 104 Patent is available for IPR, and Petitioners are not barred or estopped from requesting IPR challenging the claims of the 104 patent on the grounds identified. 3

10 B. Identification of Challenges under 37 C.F.R (b) and Relief Requested Petitioners request cancellation of claims 1-3 and 8-12 of the 104 patent on the following grounds, each of which is supported by the Scott A. Denning Declaration (Ex. 1009) ( Denning ): Ground 1: Claims 1-3 and 8-12 are unpatentable as obvious under 35 U.S.C. 103(a) over Spitaels alone. Ground 2: Claims 1-3 and 8-12 are obvious under 35 U.S.C. 103(a) over Ewing alone. Ground 3: Claims 1-3 and 8-12 are unpatentable as obvious under 35 U.S.C. 103(a) over Johnson in view of APA. Ground 4: Claims 1-3 and 8-12 are unpatentable as obvious under 35 U.S.C. 103(a) over Megret in view of APA. IV. THE 104 PATENT A. Discussion of Embodiments and Disclosure The 104 patent issued on March 2, 2010 with claims 1-20 from the application filed on May 19, 2006 by co-inventors Gregory A. Reynolds, Charles H. Reynolds and Ron L. Silorio. The specification identifies FIG. 30 as an apparatus including a conventional power distribution unit (PDU) for power management. Ex at 10:1-3 (emphasis added). Differing only slightly from the conventional PDU, FIG. 31 illustrates a PDU in which each circuit breaker 4

11 unit (CB1 to CB8) may be independently set to trip at an independent current value. Id. at 36: Specifically, a trip command may be sent to a circuit breaker unit (CB1 to CB8) having the overcurrent condition if any of the comparisons show the sampled current value is greater than a previously programmed independent current value. Id. at 37: This trip command may instruct the circuit breaker unit (CB1 to CB8) to trip, allowing each power distribution outlet (PDO-1 to PDO-8) to have an independently programmed current value. Id. at 37: B. The Claims Being Challenged Besides the basic concept of respectively interrupting only a first/second current flowing from a first/second power distribution outlet in response to a first/second current value exceeding a first/second predetermined current limit 5

12 value, method claim 1 includes steps of sampling the first and second current values, and comparing the first/second current values with first/second current limit values. Claim 1 also recites, as part of the PDU, a power cord for plugging into an outlet receptacle. Claim 8 is a method claim substantially similar to claim 1, but replaces the first/second enumerations of claim 1 with plurality of language. Further, claim 8 does not include the final power cord element of claim 1. Claim 11 is a computer program claim embodied on computer readable media comprising a reading code portion and a comparing code portion for performing the recited reading, comparing, and interrupting steps similar to those recited in claim 8. The specific terms of all claims being challenged will be presented in conjunction with the grounds of challenge in Section V.A. C. Claim Construction Except as argued for specific terms, for the purposes of this IPR only, the remaining claim terms can be given their plain and ordinary meaning. Because claim construction standards differ between the Patent Office and other forums under current law, Petitioners reserve the right to argue different constructions and/or construe other claims terms in any other proceedings. 1. Legal Standard for Claim Construction The Board interprets claims in unexpired patents using the broadest reasonable interpretation understood by one of ordinary skill in the art and 6

13 consistent with the disclosure ( BRI ). 37 C.F.R (b). 2. Terms to be Construed a) Power distribution unit Claims 1 and 8 each recite a power distribution unit in the preamble. However, both claims are method claims, and neither limits the structure, location, or arrangement of the power distribution unit recited in the preamble. Indeed, claim 8 does not recite power distribution unit anywhere in the body of the claim. Only claim 1 further recites that the power distribution unit includes a power cord for plugging into an outlet receptacle. Ex at 51: The 104 patent specification explains that a power distribution unit (PDU) can be used to provide power management to a plurality of devices. Ex at 1: The 104 patent does not disclaim a broad construction of the power distribution unit and does not foreclose a construction that broadly and reasonably covers more than a single apparatus, device, or housing. Reynolds touts the alleged novelty of the invention as per-outlet current monitoring for a plurality of controlled outlets, not as the number, size, or arrangement of the PDU performing this method of current monitoring. See Ex at 12: Petitioners contend that the preamble is not a limitation to the scope of the claims. Nevertheless, each of the references relied upon below discloses a power distribution unit within that term s broadest reasonable interpretation consistent 7

14 with the disclosure. Megret discloses a Power Distribution System including distribution devices D 1 to D n, electronic processing unit 28, current sensors C 1 to C n, and connecting conductors 30 and 34. See Ex at Fig. 1. This Power Distribution System, collectively, serves as a power distribution unit according to its ordinary and customary meaning as it appears in claims 1 and 8. Denning at 57. Similarly, Johnson s circuit breakers 1/1, portable unit 55, and remote master 39 serve as a power distribution unit for conductors 9 and 43. See Ex at Fig. 1. Spitaels discloses a power distribution control system coupled to a power distribution system. See Ex at Fig. 3; 5:1-3. The broadest reasonable interpretation of the 104 patent s power distribution unit should be construed, according to the ordinary and customary meaning given by one of ordinary skill in the art, to include one or more components, which provide power management to a plurality of devices. Denning at 27. This term is therefore disclosed by the power distribution systems of Johnson, Megret, and Spitaels, which provide power management to a plurality of devices. Ex at 1:49-50; Denning at 36. b) Sampling/reading Claims 1 and 8 of the 104 patent use the sampling term in the context of sampling a first current value (claim 1) or sampling a plurality of current values for a plurality of currents (claim 8). Claim 11 uses plurality language like claim 8, but recites reading a plurality of current values rather than sampling. The 8

15 104 patent does not indicate that reading and sampling differ in meaning. According to the 104 patent, a processing unit samples current by sending instructions and receiving current data values along bus BUS. Ex at 37:2-6; see also 37: Further, the 104 patent discloses continuous sampling. Ex at 38:38 ( [I]t may be desirable to continuously sample the current value after the initial sample has indicated the potential sustained overcurrent condition. ). Thus, sampling can occur once or can occur continuously. The 104 patent specification also confirms the similar meaning of sampling and reading according to the disclosure. Under the Summary of the Invention, the 104 patent discloses that the step of sampling a current value may include taking current readings of the current flowing from the power source to the load device and performing parametric calculations to provide the current value. Ex at 3:40-44 (emphasis added). Elsewhere, it discloses PDU 230 providing current readings based on monitoring. Ex at 39: Further, it discloses that the processing unit 236 may monitor current flowing through the selected circuit breaker unit (CB1 to CB8) by sending instructions and receiving current data values along bus BUS. Ex at 40:28-31 (emphasis added). The 104 patent disclosure related to sensing is similarly consistent with ordinary and customary meaning of sampling. The specification explains that a current sampling circuit may include a current sensing circuit, such as an isolation 9

16 step down transformer, a Hall effect device, a sense resistor, or a magnetometer. Ex at 5:58-61; see also 39: As explained by Denning, each of these devices is capable of providing a measurement of current flowing to a load device via a power cord plugged into an outlet. Denning at 29. Figs. 28A-B also illustrate details of three current sensors of an example [of a] configurable power supply according to specific embodiments of the present invention. Ex at 9: As explained by Denning, each of these current sensors is also capable of providing a measurement of current flowing to a load device via a power cord plugged into an outlet. Denning at 29. Thus, the 104 patent uses the sampling and reading terms in a manner that is also consistent with monitoring and does not expressly disclaim any broad definition. As such, sampling and reading should be construed, according to their broadest reasonable interpretation, to include the concept of receiving a current value including the concepts of sampling, reading, monitoring, and sensing to determine a current value according to the disclosure of the 104 patent. Denning at 30. c) Programming/programmable This term appears in claims 2 and 9 as the step of programming one or more current limit values using a computer connected to the power distribution unit through a network. Ex at 51:21-24 (claim 2); 52:30-32 (claim 9). 10

17 According to claim 12, claim 11 is further limited in that each one of the plurality of predetermined current limit values is programmable. Ex at 52: According to the 104 patent, each circuit breaker unit in Fig. 31 may be independently set to trip at an independent current value. A user may set the independent current value for each circuit breaker unit (CB1 to CB8) at computer 250. Ex at 36:65-37:1. Similarly, the 104 patent discloses that the independently programmed current values may be changed by a user through a software interface at computer 250 at essentially any time. Ex at 38: Indeed, the 104 patent treats programmed and set as substantially the same. See Ex at 39:29-32 ( Processing unit 236 may provide commands to interface electronics 310 based on an algorithm and programmed values (set as indicated above in the operation of the embodiment of FIG. 2), which may be stored in memory 238. ). According to FIG. 2, settings are edited by typing a number or letter. Ex at 13:9-16. The outlet properties modification interface is shown at Fig. 11 and described at 15:6-10. A similar user interface for inputting programmable values for the power distribution unit 230 is shown at Fig. 33 and described at 40:7-41:4. These interfaces similarly show that settings are edited by typing a number or letter, and thereby programmed. Accordingly, the broadest reasonable construction of programming captures the concept of entering and saving, or setting, the values using a computer. Denning at

18 d) Network The network term also appears in claims 2 and 9 in conjunction with programming current limit values using a computer connected to the power distribution unit through a network. Ex at 51:21-24 (claim 2); 52:30-32 (claim 9). In describing certain embodiments, the 104 patent provides examples of a network-based interface as e.g., HTTP, SNMP. Ex at 7:47. Elsewhere, the 104 patent explains that the drawings illustrate embodiments as a system operating on a digital data network. Ex at 8: However, the 104 patent expressly discloses that the type of network is not limited, and provides examples including cable television networks, wireless networks, etc. Ex at 8: Moreover, the 104 patent explains that the present invention may be understood in the context of providing power management over a communication media. Ex at 16: While the 104 patent discloses an important application as providing power cycling and monitoring over the Internet, other communication channels are also included within the scope of the invention. Ex at 16:61-17:10. Further, the claims provide no specific limitation on the scope of the network. Therefore, the network term is sufficiently broad to cover a variety of types of communication media. Denning at 32. Thus, the Board should construe the network term according to its broadest reasonable interpretation as any communication media, including at 12

19 minimum those enumerated examples of communication media disclosed within the 104 patent. Id. This construction is consistent with and broad enough to be previously disclosed by Johnson s network 41, Spitaels network 211, and Megret s alternating current distribution network. D. Priority Claims and File History 1. Parent Applications The 104 patent claims priority to three earlier-filed applications U.S. provisional application No. 60/378,342 filed on May 6, 2002 by Charles H. Reynolds only (the Provisional ) (Ex. 1010), non-provisional application No. 10/431,333 filed on May 6, 2003 by Charles H. Reynolds and Ron L. Silorio ( the 333 application ) (Ex. 1011), and non-provisional application No. 10/870,621 filed on June 16, 2004 by Gregory A. Reynolds ( the 621 application ) (Ex. 1012). However, the challenged claims do not all gain the benefit of the May 6, 2002 date. For example, the interrupting features of the claims are not disclosed as required under 35 U.S.C. 112 in the Provisional or the 333 application, and the Enable Software Circuit Breaker 460 concept is not disclosed until the 621 application. Compare Ex at 43 with Ex at The 104 Patent s File History On May 19, 2006, Gregory A. Reynolds, the sole inventor on the 621 application, was joined by co-inventors Charles H Reynolds and Ron L. Silorio, the co-inventors on the 333 application, in filing continuation-in-part Application 13

20 No. 11/437,959 (the 959 application ). During prosecution of the 959 application, Johnson was cited by the Examiner in the rejection of all claims. Ex at In response, the Applicants argued that the claimed outlet required a receptacle for receiving a plug and produced a copy of a non-technical dictionary in support of this definition. Id. at 311. Though Johnson did not expressly disclose outlet receptacles, the examiner maintained the rejections based on Johnson, and cited to a technical IEEE definition of outlet, which required no receptacle for a plug, to substantiate the examiner s broadest reasonable interpretation of that term. Id. at 326. Reynolds then filed a Request for Continued Examination ( RCE ) along with amended claims that clarified the meaning of outlet to require an outlet receptacle for receiving a plug. Id. at On that theory, Reynolds argued that the claims were allowable over the prior art, including Johnson. Id. at 337. However, these amended features all existed in the 104 patent s Background of the Invention disclosures. See Ex. 1001, Fig. 30; 1:48-2:39. Thus, these features are properly treated as Admitted Prior Art ( APA ). Further, the examiner failed to realize that a person of ordinary skill in the art would have been motivated to combine Johnson and APA, therefore rendering the 104 patent claims obvious. Although Johnson was considered by the examiner below, Petitioners present different arguments and a new combination of art that was not 14

21 considered by the examiner. Here, where new arguments and combinations of references are presented, shedding a different light on the combination of Johnson and APA, the Board should not exercise its discretion under 35 U.S.C. 325(d) and should instead institute on each ground of challenge presented below. V. THE GROUNDS OF REJECTION RENDER CLAIMS 1-3 AND 8-12 OBVIOUS For the purpose of this Petition, a person of ordinary skill in the relevant art of the 104 patent ( POSITA ) has at least a bachelor s degree in electrical engineering or computer science with two or more years of experience designing power management and monitoring systems. Denning at 8. For example, a POSITA has education and experience sufficient to understand how to interpret and implement the component layout of the 104 patent s Fig. 31, and would understand factors associated with the administration and regular use of power management systems, and would also understand the risk to network appliances of over-current and under-current conditions. Id. A. Ground 1: Claims 1-3 and 8-12 are Obvious Over Spitaels alone. Spitaels was filed on Jan. 2, 2002 and issued on April 13, Thus, Spitaels is prior art under at least 35 U.S.C. 102(e). Spitaels was not cited during prosecution of the 104 patent. 1. Spitaels Discloses or Suggests all Features of Claims 1-3 and

22 Spitaels discloses methods for monitoring power in power distribution systems. Ex at Abstract. The methods are performed by the systems shown in Figs FIG. 2 provides a block diagram of a power monitoring and control system 200 of the present invention. The system includes an intelligent power strip 205, a consolidator 206, a first computer 208, a second computer 210, and a network 211 operatively coupling the components of the system 200. Ex at 5:48-56; FIG. 2. Fig. 3 shows a power distribution control system of FIG. 2 operatively coupled to the power distribution system of FIG. 1. Ex at 5:1-3. In Fig. 3, load 119 is an equipment rack containing the first computer 208, the second computer 210 and the intelligent power strip 205. Ex at 7: The intelligent power strip 205 is a power strip having multiple power outlets and current monitoring devices incorporated within it for determining the current draw of any one of the power outlets or the total current draw of all devices that are powered from the intelligent power strip. Ex at 7:3-7. Since first computer 208 and second computer 210 are arranged on the same rack as intelligent power strip 205, a POSITA would have understood that the computers are intended to be plugged into intelligent power strip 205, or would have been motivated to plug first computer 208 and second computer 210 into intelligent power strip 205 due to close proximity and compatibility of purpose. Denning at 34. This aspect of the intelligent power strip 205 was incorporated into Spitaels claim 16: wherein 16

23 the power monitoring device has a plurality of outlets, and the power monitoring device is adapted to send a signal to the controller to indicate a value of the at least one characteristic for each of the plurality of outlets. Ex at 15: The intelligent power strip 205 is connected to the system s controller 201 via network 211. Specifically, the intelligent power strip also includes network interface circuitry to allow the strip to communicate with the controller 201 over the network 211. In addition, the intelligent power strip can be commanded by the controller [201] to interrupt power to any of the power outlets on the strip. Ex at 7:3-12. The intelligent power strip 205 has the capability to control the application of power to individual outlets. (7:12-18). According to the method of Fig. 4 as implemented by the system of Figs. 1-3, the method determines the maximum current draw for each of the circuit branches of a power distribution system. The maximum current draw can be compared to predetermined values that are based, for example on circuit breaker values, and if a potential overload condition is detected, warnings can be generated and corrective actions can be taken. Ex at 8: Among the corrective actions available, the controller can command the power strip to interrupt power to one or more of its outlets. Ex at 11: A POSITA would have understood from Spitaels that the outlet subject to the interrupt command would be the outlet causing the overload condition, i.e. the outlet having the current draw that exceeds the predetermined 17

24 value, since interrupting that outlet is the most certain and predictable way to interrupt the overload condition, and potentially avoid damage to load devices. Denning at 35. Alternatively, a POSITA would have known to interrupt the current to the outlet causing the overload condition as the most predictable and accepted way to stop a dangerous overload condition that could otherwise damage equipment. Id. a) Claims 1 and 8 Preamble: Claims 1 and 8 of the 104 patent each recite a current protection method for a power distribution unit. Spitaels discloses methods for monitoring power in power distribution systems. Ex at Abstract. sampling : Claim 1 next recites the step of sampling a first current value of a first current flowing from a first power distribution outlet receptacle to a first load device through a first power cord that is plugged into the first power distribution outlet receptacle and a second current value of a second current flowing from a second power distribution outlet receptacle to a second load device through a second power cord that is plugged into the second power distribution outlet receptacle. Similarly, claim 8 of the 104 patent requires sampling a plurality of current values for a plurality of currents, each of the plurality of currents comprising a current flowing between one of a plurality of power distribution outlet receptacles and a corresponding load device through a 18

25 corresponding power cord that is plugged into the corresponding power distribution outlet receptacle. Thus, claims 1 and 8 each require sampling more than one current value, and each require that the individual sampled currents be flowing between a power outlet receptacle and a load device through a power cord plugged into the power outlet receptacle. Spitaels intelligent power strip 205 is a power strip having multiple power outlets and current monitoring devices incorporated within it for determining the current draw of any one of the power outlets or the total current draw of all devices that are powered from the intelligent power strip. Ex at 7:3-7. Thus, Spitaels intelligent power strip 205 samples more than one current value, and each sampled current is flowing between a power outlet receptacle of the intelligent power strip and a load device through a power cord plugged into the intelligent power strip s outlet receptacle. A POSITA would have been motivated to provide first and second computers 208/210 with cords and plugs to receive power, and would have plugged the plugs into intelligent power strip 205 s outlets since these items are all located on the same rack. Denning at 34. comparing & interrupting : Claims 1 and 8 next require the step of comparing each of the current values with a corresponding predetermined current limit value, and interrupting only the current flowing from receptacle to load device that exceeds the corresponding current limit value. Spitaels discloses 19

26 that the intelligent power strip 205 communicates with controller 201 over network 211, and the consolidator receives data indicative of power levels measured by each of the power monitoring devices coupled to it and forwards these levels to the controller 201 over the network, along with identifying information for each of the devices. Ex at 6: The controller 201 also includes power load monitoring and control module 216, which communicates with the other components of the system to receive current draw values. Ex at Thus, the current monitoring devices of the intelligent power strip report the sampled current draw values to the controller 201. The intelligent power strip 205 can be commanded by the controller to interrupt power to any of the power outlets on the strip. Ex at 7: The controller 201 receiving the sampled current value(s) from the intelligent power strip 205 is adapted to compare the value measured with a predetermined value to detect an overload condition, and the controller is adapted to send a power interrupt signal to interrupt power to the device upon detection of an overload condition. Ex at 15:32-36; Denning at 35. Based on Spitaels, a POSITA would have understood or been motivated to select the power outlet creating the overload condition by having a current draw level that exceeds the predetermined value as the power outlet to be commanded to interrupt current, since this is the most certain and predicable way to interrupt the overload condition and to potentially avoid damage to equipment. Id. 20

27 PDU power cord: In claim 1 of the 104 patent, the final element recites wherein the power distribution unit includes a power cord for plugging into an outlet receptacle. The broadest reasonable interpretation of power distribution unit according to the 104 patent includes the system of Fig. 3. Denning at 36. Further, Spitaels discloses that controller 201 may be powered by a separate power distribution system. Ex at 7: A POSITA would have been motivated to modify controller 201 to include a power cord for plugging into an outlet receptacle in order to receive power according to Spitaels embodiment, since a power cord allows for the use of an available power distribution system s outlet, without having to construct a dedicated power supply. Denning at 36. Thus, Spitaels discloses expressly or at least suggests all features of claims 1 and 8 and therefore renders these claims obvious. b) Claims 2 and 9 programming : Claims 2 and 9 each recite programming the first predetermined current limit value and the second predetermined current limit value [each of the plurality of predetermined current limit values] using a computer connected to the power distribution unit through a network. Per the 104 patent, programming is satisfied by setting or entering and storing current limit values. Spitaels discloses that controller 201 connected to intelligent power strip 205 via network 211 may be a single computer contained in one of the racks of a data 21

28 center, using a desktop computer, a dedicated purpose computing device, an embedded computing system, or the functionality of the controller may be distributed among several networked computers. Ex at 7: Further, the predetermined current limits used for the comparing step at controller 201 are calculated based on previously conducted measurements, circuit limitations, or other factors. Ex at 10: Based on this disclosure, a person of ordinary skill in the art would have understood from Spitaels that the current limits are programmed into controller 201 according to Spitaels. Denning at 37. This disclosure is consistent with the 104 patent s disclosure of programming the current limit values at, e.g., Figs. 11 and 33. Therefore Spitaels discloses all features of claims 2 and 9 and renders these claims obvious. c) Claims 3 and 10 comparing with software : Claims 3 and 10 each recite the step of comparing the [current values with the current limit values] is performed with software internal to the power distribution unit. According to Spitaels, the controller 201 can be implemented as a computer and performs the comparing based on the measured current draw levels and the calculated predetermined current limits. As Spitaels explains, the controller 201 provides for constant monitoring of the power draw or current at each of the power monitoring devices to detect an actual or potential overload condition. Present values of power draw 22

29 can be compared to predetermined limits that are calculated based on previously conducted measurements, circuit limitations, or other factors. Ex at 10: Further, the controller 201 falls within the power distribution unit of Spitaels. Denning at 36. Thus, controller 201 s programs executing software disclose the features of claims 3 and 10 and render these claims obvious. d) Claim 11 reading code portion & comparing code portion : Claim 11 recites a current protection computer program embodied on computer readable media, and for performing functions including reading, comparing, and providing an interrupt command such as claimed in claim 8. As explained above, Spitaels renders claim 8 obvious. The difference from claim 8 is that claim 11 recites that these functions are provided by a comparing code portion and a reading code portion of the current protection computer program. As discussed above, Spitaels controller 201 can be implemented as a computer and includes a power load monitoring and control module 216, which may be implemented as software, hardware, or a combination and that communicates with the other components of the system to control the other components and receive power draw levels or current draw values from the power monitoring devices. The controller may be implemented using a single computer contained in one of the racks of a data center. Ex at 7: Further, the controller provides for constant monitoring 23

30 of the power draw or current at each of the power monitoring devices to detect an actual or potential overload condition. Present values of power draw can be compared to predetermined limits that are calculated based on previously conducted measurements, circuit limitations, or other factors. Ex at 10: One of ordinary skill in the art would have understood from this disclosure that the program providing the functionality of controller 201 discloses both the reading code portion and comparing code portion as claimed in claim 11, including all functionality recited in the claim because controller 201 functions as the central controller for the system and communicates with other components of the system over the network 211. Controller 201 includes power load monitoring and control module 216, which may be implemented in software, that communicates and controls other components of the system for sampling and receiving current levels, determines if a potential overload condition exists based on a comparison of levels, and commands the intelligent power strip 205 to interrupt power to one or more of its outlets in an overload condition. Denning at 39. Thus, Spitaels discloses or suggests all features of claim 11 and renders claim 11 obvious. e) Claim 12 current limit values [are] programmable : Claim 12 recites that each one of the plurality of predetermined current limit values is programmable. As explained above, the controller provides for constant monitoring of the power 24

31 draw or current at each of the power monitoring devices to detect an actual or potential overload condition. Present values of power draw can be compared to predetermined limits that are calculated based on previously conducted measurements, circuit limitations, or other factors. Ex at 10: Thus, the current limit values for each outlet of the intelligent power strip 205 are programmable according to Spitaels. Denning at 37. Spitaels discloses all features of claim 12 as well, and renders claim 12 obvious. B. Ground 2: Claims 1-3 and 8-12 are obvious under 35 U.S.C. 103(a) over Ewing alone. 1. Summary of Ewing Ewing was filed on December 8, 2000 and issued on August 29, Thus, Ewing is prior art at least under 35 U.S.C. 102(e). Ewing was not cited during prosecution history of the 104 Patent, and this ground is not redundant of preceding grounds at least because Ewing s network supports SNMP as described below. Ewing discloses a power manager connected to control several intelligent power modules each able to independently control the power on/off status of several network appliances with [p]ower-on and load sensors within each intelligent power module able to report power status of each network appliance to the network manager. Ex at Abstract. Exemplary embodiments of power managers are shown in FIGS FIG. 3 represents a 25

32 third power manager system embodiment of the present invention.a network management system (NMS) 302 is connected by a network 304 to an equipment rack 305. Id. at 8: Ewing provides that it is the role and purpose of the power manager 300 to monitor the power and environmental operating conditions, and to afford management personnel the ability to turn the computer-based network-equipment units on and off. Id.at 8: Ewing also discloses that the equipment rack 305 includes a power distribution strip 314 implemented as one or two long skinny plug strips which include a software-controlled relay switch for each corresponding power cord set from the network-equipment units Id. at 8: Ewing further describes that sensors 316 measure the total power entering the powerdistribution strip 314, and can output volts, current or power readings to a local display 318 and the power strip 314 associates a tickle signal with each power supply connection to corresponding ones of the network-equipment units to allow a channel to be exercised and tested so a systems administrator can develop confidence that a power on-off command will not run amok and turn off an unintended device. Id. at 8:50-9:10. Ewing further discloses the equipment rack 305 includes a network interface control (NIC) 322 connected to a security firewall 324 and network agent 326 which is connected to the power manager 320. Id. at 9: Once 26

33 a power manager has been installed and configured, it is necessary to establish a connection to the power manager and [f]or Ether Network Connections, a user connects to the power manager by using a TELNET program. Id. at 10:1-29. After establishing a session and logging in using the communication software, a user can use a power manager SHOW command, which accesses an ANSI power control screen. Id. at 25: Using the Power Control Screen (shown in Ewing at 25:39-54), a user can control power and configure the power manager by simply moving around the screen using the arrow keys and pressing an action key. Id. at 25: The power control screen provides various fields, including Control Status: The current status of the IPM is shown by a character in the On or Off field, and Device Load: This is an informational field that displays the amount of current in Amps that is flowing through the associated IPM. Id. at 26:25-26 and 25: Further, the power control screen allows a user [t]o change the power state of an IPM by mov[ing] the cursor to the desired state (On or Off), and press[ing] the space bar. Id at 26: Ewing also discloses that [t]he power manager (with the network option) supports the Simple Network Management Protocol (SNMP) Id. at 35:8-9. Further, Ewing provides SNMP support for the query and action type operations, which include power manager generated trap information. Id. at 35: Using the SNMP, high and low Device Load limits can be set for each IPM and 27

34 [w]hen these Device Load limits are exceeded, an SNMP trap will be generated. Id. at 37: Thus, Ewing s power manger support of the SNMP allows a network management system to use SNMP get and set requests to retrieve information about, and control power to, the individual ports on the power manager. Id. at 35:9-12. Ewing states that if [p]roperly implemented and integrated, this feature could allow a network management system to automatically reboot a network device that it has detected to be down or locked-up. Id. at 35: Detailed Explanation of the Obviousness of Claims 1-3 and 8-12 in view of Ewing under 37 C.F.R (a)(2) Each of claims 1-3, and 8-12 are obvious over Ewing as Ewing alone or as modified as discussed herein discloses each and every feature of these claims as arranged in the claims. a) Claims 1 and 8 Preamble: Ewing discloses a power manager connected to control several intelligent power modules each able to independently control the power on/off status of several network appliances with [p]ower-on and load sensors within each intelligent power module able to report power status of each network appliance to the network manager. Ex at Abstract. This power manager includes at least one power distribution strip 314 implemented as one or two long skinny plug strips which include a software-controlled relay switch for 28

35 each corresponding power cord set from the network-equipment units Id. at 8: The power manager and the power management system disclosed in Ewing perform current protection as discussed below. sampling : Regarding sampling, Ewing discloses power management systems that have a sensor 316 that measures power and outputs volts, current, or power readings to a remote power manager 320. Id. at 8: Further, Ewing also provides that the power manager is connected to control several intelligent power modules [IPMs], and Power-on and load sensors within each intelligent power module are able to report the power status of each network appliance to the network manager. Id. at 5:5-11. In other words, the described power management systems have sensors to measure power, volts, current, or power flowing to each of the network-equipment units Denning at 42. Regarding a first outlet receptacle and a second outlet receptacle, Ewing also discloses first and second power distribution outlet receptacles as it states that the described power management systems include at least one power-distribution strip 314 implemented as one or two long skinny plug strips which includes a software controlled relay switch for each corresponding power cord set from the network-equipment units and provides an example of plug strips having sixteen plug outlets and relay switches each Ex at 8: In other words, Ewing describes the power management systems having multiple plug 29

36 outlets connected to network-equipment units by power cord sets. This illustrates that electrical power (i.e. current and voltage) is being provided to attached devices through the power cables. Further regarding current flowing through a first power cord and a second power cord, Ewing discloses controlling and configuring the power management systems over a TELNET session and describes providing a Power Control Screen. Id. at 10:1-29 and 25: According to Ewing, the Power Control Screen allows a user to control power and configure the power manager by providing various fields, including Device Load: an informational field that displays the amount of current in Amps that is flowing through the associated IPM. Id. at 25:18-20 and 25: Ex at 25. In other words, the Power Control Screen includes data fields representing current, measured or sensed, flowing in real time through different outlets (i.e. at least a first outlet and a second outlet) connected to different attached network-equipment units by power cords. As Ewing describes power management systems having the sensors to monitor power load, voltage, and current of power outlet connected to attached devices by power cords, a person of ordinary skill in the art would be motivated to use the power management system to measure or sense the current flowing through individual plug outlets based on Ewing s description of a software interface displaying measured or sensed current flowing through individual outlets. Id. at 30

37 8:50-55 and 10:1-29 and 25:27-60; Denning at 43. As a result, Ewing renders obvious the first limitation of the methods of claims 1 and 8. comparing : Ewing describes multiple plug outlets each connected to a corresponding power cord set from network-equipment units and the plug outlets being provided by IPMs having [p]ower-on and load sensors able to report the power status of each network appliance to the network manager Id. at 5:5-11 and Further, Ewing also discloses [f]or each IPM on a board high and low Device Load limits can be set. When these Device Load limits are exceeded, an SNMP trap will be generated. Id. at 37: Ewing also discloses programing commands for setting the load limits for the individual IPMs and the plug outlets. Id. 18: In view of these disclosures of Ewing, it would be obvious to a person of ordinary skill in the art to use the computer command language and the SNMP traps disclosed to modify the power management products having multiple plug outlets to compare measured current values of individual plug outlets to programmed load limits to determine when the measured current values exceed the programed load limits and generate SNMP traps. Denning at 44 and 45. Therefore, Ewing renders obvious the second limitation of the methods of claims 1 and 8. interrupting : As discussed above, Ewing discloses power management products having multiple plug outlets each connected to a corresponding power 31

38 cord set from network-equipment units ) and the plug outlets being provided by IPMs having [p]ower-on and load sensors able to report the power status of each network appliance to the network manager. Id. at 5:5-11 and Further, Ewing discloses that the plug strips providing the plug outlets also include a software-controlled relay switch for each corresponding power cord set from the network-equipment units Id. at 8: In other words, Ewing discloses multiple plug outlets (i.e. at least a first plug outlet and a second plug outlet) that are connected to the attached devices (using power cords as discussed above with respect to the first limitation) and power (i.e. current and voltage) to the attached devices can be individually turned on and off. Additionally, as discussed above, Ewing discloses a Power Control Screen which allows a user to control power and configure the power manager. Id. at Ewing also discloses that the power control screen provides a number of fields, including Control Status, which represents the current status of individual power connectors by a character in the On or Off field and allows individual power connectors to be turned on or off. Id. at 26: Ewing also discloses that [t]he power manager (with the network option) supports the Simple Network Management Protocol (SNMP) Id. at 35:8-9. Using the SNMP, high and low Device Load limits can be set for each IPM and [w]hen these Device Load limits are exceeded, an SNMP trap will be generated. Id. at 37: These 32