- Cloudflare, Inc. / Splunk Inc. v. Sable Networks, Inc.Some claims unpatentablePTAB · Oct 18, 2022 · IPR2022-00228 · APJ Juliet Mitchell Dirba · IPR · Final written decision
Claims 3, 9–13, 19–24, 29–33, and 39–44 are unpatentable under §103; claims 17, 18, 37, and 38 are not shown unpatentable over Yung alone.
RulingsFinal written decision- Skill levelSkill level petitioner adoptedOther
“Petitioner asserts that the level of ordinary skill in the art corresponds to “an undergraduate degree (or equivalent) in electrical engineering, computer science, or comparable subject” and “3–5 years of academic or industry experience in computer networking or comparable industry experience.” Pet. 11 (citing Ex. 1003 ¶ 27). In the Institution Decision, we adopted this articulation of the level of ordinary skill. Inst. Dec. 15. At trial, neither party disputed our preliminary finding. See PO Resp.; Pet. Reply. We remain persuaded that this articulation of the level of skill in the art is supported by the ’593 patent, the asserted prior art, and Dr. Jeffay’s testimony. See Inst. Dec. 15 (citing Ex. 1003 ¶ 27). Accordingly, we determine that the level of ordinary skill in the art corresponds to an undergraduate degree (or equivalent) in electrical engineering, computer science, or comparable subject and 3–5 years of academic or industry experience in computer networking or comparable industry experience.” slip op. at 8
- Claim Construction › Functional claiming / §112(f) means-plus-function › Whether §112(f) applies (Williamson, nonce words)§112(f) appliesTerm construed petitioner constructionDecided for petitioner
“1. Means-plus-function limitations Petitioner contends the challenged claims include means-plus-function limitations that should be interpreted under 35 U.S.C. § 112 ¶ 6, and for each, Petitioner identifies a construction for use in this proceeding. Pet. 11– 14.12 Petitioner submits that no other terms require construction for purposes of this proceeding. Id. at 12. In the Institution Decision, we agreed with Petitioner that the identified limitations are means-plus-function limitations. Inst. Dec. 16 (citing Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015) (en banc) (holding that “use of the word ‘means’ creates a presumption that § 112, ¶ 6 applies”)). We also stated that we were persuaded that Petitioner had correctly identified the recited functions and the components in the Specification that perform those functions. Id. at 16– 17. As a result, we preliminarily adopted the following constructions: Limitation” slip op. at 9
- Claim Construction › Intrinsic evidence (Phillips canons) › Specification disavowal / 'present invention' languageDisclaimer not foundDecided for petitioner
“Instead, Patent Owner points to the Specification, but this also fails to support Patent Owner’s contention. Although claims are read in view of the Specification (Phillips, 415 F.3d at 1315), they are not limited to the embodiments disclosed in it (id. at 1323). Patent Owner identifies (and we perceive) no passage in the Specification that could be read as redefining this claim phrase or disavowing part of its scope. See Thorner v. Sony Computer Ent. Am. LLC, 669 F.3d 1362, 1365, 1367 (Fed. Cir. 2012). In fact, the passages cited by Patent Owner are directed to the handling of a single flow, and none expressly indicates that an identical method must be used for each flow processed. See Ex. 1001, 6:25–31, 7:51–52, 8:12–17. Thus, we determine that the Specification does not justify importing the limitation proposed by Patent Owner into the claims. Accordingly, having reviewed the intrinsic record, we disagree with Patent Owner’s contention that claims 9 and 29 require computing a badness factor for each flow or all flows; rather, this claim limitation may be satisfied by computing a badness factor for a single flow.” slip op. at 12
- Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)No construction neededOther
“3. Other constructions The parties do not propose constructions for any other terms or phrases. See Pet. 11–14; PO Resp. Based on the record before us, we do not find it necessary to provide express claim constructions for any other terms or phrases. See Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (noting that “we need only construe terms ‘that are in controversy, and only 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))).” slip op. at 12
Patent outcomesUS 8,243,593 mixedClaim construction§ 102 anticipation§ 103 obviousnesscites Phillips · KSR · GrahamPatents in suitUS 8,243,593 - Cloudflare, Inc. / Splunk Inc. v. Sable Networks, Inc.Some claims unpatentablePTAB · Oct 18, 2022 · IPR2021-00909 · APJ Juliet Mitchell Dirba · IPR · Final written decision
Claims 3, 9–13, 19–24, 29–33, and 39–44 are unpatentable under § 103; claims 17, 18, 37, and 38 were not shown unpatentable over Yung.
RulingsFinal written decision- Skill levelSkill level petitioner adoptedDecided for petitioner
“Petitioner asserts that the level of ordinary skill in the art corresponds to “an undergraduate degree (or equivalent) in electrical engineering, computer science, or comparable subject” and “3–5 years of academic or industry experience in computer networking or comparable industry experience.” Pet. 11 (citing Ex. 1003 ¶ 27). In the Institution Decision, we adopted this articulation of the level of ordinary skill. Inst. Dec. 15. At trial, neither party disputed our preliminary finding. See PO Resp.; Pet. Reply. We remain persuaded that this articulation of the level of skill in the art is supported by the ’593 patent, the asserted prior art, and Dr. Jeffay’s testimony. See Inst. Dec. 15 (citing Ex. 1003 ¶ 27). Accordingly, we determine that the level of ordinary skill in the art corresponds to an undergraduate degree (or equivalent) in electrical engineering, computer science, or comparable subject and 3–5 years of academic or industry experience in computer networking or comparable industry experience.” slip op. at 8
- Claim Construction › Functional claiming / §112(f) means-plus-function › Whether §112(f) applies (Williamson, nonce words)§112(f) appliesDecided for petitioner
“1. Means-plus-function limitations Petitioner contends the challenged claims include means-plus-function limitations that should be interpreted under 35 U.S.C. § 112 ¶ 6, and for each, Petitioner identifies a construction for use in this proceeding. Pet. 11– 14.12 Petitioner submits that no other terms require construction for purposes of this proceeding. Id. at 12. In the Institution Decision, we agreed with Petitioner that the identified limitations are means-plus-function limitations. Inst. Dec. 16 (citing Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015) (en banc) (holding that “use of the word ‘means’ creates a presumption that § 112, ¶ 6 applies”)). We also stated that we were persuaded that Petitioner had correctly identified the recited functions and the components in the Specification that perform those functions. Id. at 16– 17. As a result, we preliminarily adopted the following constructions: Limitation” slip op. at 9
- Claim Construction › Intrinsic evidence (Phillips canons) › Specification disavowal / 'present invention' languageDisclaimer not foundDecided for patent owner
“In particular, claim 9 recites a method for processing a flow that includes computing a badness factor for the flow. Ex. 1001, 11:63–8. Patent Owner identifies (and we perceive) no limitation that requires a badness factor to be computed for each flow. Inst. Dec. 44 (addressing substantially similar argument presented in preliminary response); see also Ex. 1001, 13:32–44 (claim 29). During trial, Patent Owner neither responds to this analysis nor points to a claim limitation that allegedly includes this requirement. Instead, Patent Owner points to the Specification, but this also fails to support Patent Owner’s contention. Although claims are read in view of the Specification (Phillips, 415 F.3d at 1315), they are not limited to the embodiments disclosed in it (id. at 1323). Patent Owner identifies (and we perceive) no passage in the Specification that could be read as redefining this claim phrase or disavowing part of its scope. See Thorner v. Sony Computer Ent. Am. LLC, 669 F.3d 1362, 1365, 1367 (Fed. Cir. 2012). In fact, the passages cited by Patent Owner are directed to the handling of a single flow, and none expressly indicates that an identical method must be used for each flow processed. See Ex. 1001, 6:25–31, 7:51–52, 8:12–17. Thus, we determine that the Specification does not justify importing the limitation proposed by Patent Owner into the claims. Accordingly, having reviewed the intrinsic record, we disagree with Patent Owner’s contention that claims 9 and 29 require computing a badness factor for each flow or all flows; rather, this claim limitation may be satisfied by computing a badness factor for a single flow.” slip op. at 11
- Obviousness (§103) › Graham factors (scope of art, differences, level of skill)UnpatentableUnpatentable
“Having considered the parties’ arguments and evidence, we are persuaded that Copeland discloses this limitation. Copeland analyzes a flow’s statistics (including start time, end time, number of bytes, and number of packets) “to determine if the flow appears to be legitimate traffic or possible suspicious activity” and computes a concern index for the flow if it appears suspicious. E.g., Ex. 1007, 3:31–35, 7:38–67, 16:36–17:5. We find that Copeland’s concern index qualifies as a “badness factor for the flow . . . [that] provides an indication of whether the flow is exhibiting undesirable behavior,” as required by claim 9. E.g., Ex. 1007, 3:31–40, 4:30–33, Fig. 1 (identifying “‘bad’ flow(s)”). As Dr. Jeffay explains, an ordinary artisan would have understood that suspicious activity (such as a probe or network attack) is undesirable behavior. Ex. 1003 ¶¶ 211–212. We also find that Copeland teaches computing a concern index “based at least partially upon the set of behavioral statistics” because, for example, it uses the number of packets to compute the concern index. Ex. 1007, 7:64–67, Fig. 6 (setting concern index to number of packets); see also Ex. 1003 ¶ 213.” slip op. at 22
Patent outcomesUS 8,243,593 mixedClaim construction§ 102 anticipation§ 103 obviousnesscites Phillips · KSR · GrahamPatents in suitUS 8,243,593
Holdings, summaries, rulings, issues, outcomes, winners and claim constructions shown for a decision were generated by a large language model reading the opinion. They are a guide to the decision, not the decision. Confirm every one against the court's own text before relying on it. Outcomes read from the patent owner’s side. Party names are extracted from the decision and are missing on about 900 short Director denials and scans, which carry the trial number instead.