Hulu, LLC v. Sound View Innovations, LLC

Trials@uspto.gov 	Paper 34
Tel: 571-272-7822 	Entered: August 5, 2019
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
HULU, LLC,
Petitioner,
v.
SOUND VIEW INNOVATIONS, LLC,
Patent Owner.
____________
Case IPR2018-00582
Patent 6,502,133 B1
____________
Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and
JOHN A. HUDALLA, Administrative Patent Judges.
HUDALLA, Administrative Patent Judge.
FINAL WRITTEN DECISION
Inter Partes Review
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
Petitioner, Hulu, LLC (“Petitioner”), filed a Petition (Paper 3, “Pet.”)
requesting an inter partes review of claims 1, 9–13, and 21 of U.S. Patent
No. 6,502,133 B1 (Ex. 1001, “the ’133 patent”) pursuant to 35 U.S.C.
§§ 311–319. Patent Owner, Sound View Innovations, LLC (“Patent
Owner”), filed a Preliminary Response (Paper 8, “Prelim. Resp.”). Taking
into account the arguments presented in Patent Owner’s Preliminary

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Response, we determined that the information presented in the Petition
established that there was a reasonable likelihood that Petitioner would
prevail in challenging claims 1, 9–13, and 21 of the ’133 patent under
35 U.S.C. § 103(a)1 on one ground of unpatentability presented. Pursuant to
35 U.S.C. § 314, we instituted this proceeding, as to all challenged claims
and all grounds of unpatentability, on August 14, 2018. Paper 11 (“Dec. on
Inst.”).
During the course of trial, Patent Owner filed a Patent Owner
Response (Paper 18, “PO Resp.”), and Petitioner filed a Reply to the Patent
Owner Response (Paper 21, “Pet. Reply”). Patent Owner also filed a
Sur-Reply. Paper 24 (“PO Sur-Reply”). An oral hearing was held on
May 9, 2019, and a transcript of the hearing is included in the record.
Paper 33 (“Tr.”).
Petitioner filed declarations of Phillip B. Gibbons, Ph.D., with its
Petition (Ex. 1002) and Reply (Ex. 1017). Patent Owner filed a declaration
of Mark T. Jones, Ph.D. (Ex. 2003) with its Response. The parties also filed
transcripts of the depositions of Dr. Gibbons (Exs. 2004, 2006) and
Dr. Jones (Ex. 1016).
We have jurisdiction under 35 U.S.C. § 6. This Decision is a Final
Written Decision under 35 U.S.C. § 318(a) as to the patentability of
claims 1, 9–13, and 21 of the ’133 patent. For the reasons discussed below,
1 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29,
125 Stat. 284, 287–88 (2011), revised 35 U.S.C. § 103, effective March 16,
2013. Because the application from which the ’133 patent issued was filed
before this date, the pre-AIA version of § 103 applies.

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Petitioner not has demonstrated by a preponderance of the evidence that
claims 1, 9–13, and 21 of the ’133 patent are unpatentable.
I. 	BACKGROUND
A. 	Related Proceedings
As required by 37 C.F.R. § 42.8(b)(2), the parties identify various
district court litigations involving the ’133 patent. Pet. 3; Paper 6, 1–2;
Paper 27, 1–2.
B. 	The ’133 Patent
The ’133 patent relates to “processing real-time events in applications
such as telecommunications and computer networks.” Ex. 1001, 1:19–22.
Figure 1 of the ’133 patent is reproduced below.
Figure 1 depicts information processing system 10 for real-time event
processing. Id. at 2:52–53, 3:20–21. Processing system 10 includes
real-time event processing system (EPS) 12, data warehouse/enterprise store
(DW/ES) 14, real-time component 16, and one or more applications 18. Id.
at 3:19–25. Real-time EPS 12 includes main-memory database system 20,

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which is where data necessary for event processing are stored to meet
real-time performance goals. Id. at 3:25–28, 3:34–36. Real-time EPS 12
may be implemented in whole or in part using a computer or other type of
digital data processor. Id. at 4:22–24. Due to space limitations in main-
memory database system 20, individual processed event records are
typically archived in DW/ES 14, which includes archive data and disk-
resident database system 15. Id. at 3:23–24, 3:36–39. Applications 18 may
be directed to billing, fraud detection/prevention, etc. Id. at 3:25–26.
Figure 2 of the ’133 patent is reproduced below.
Figure 2 depicts EPS 12, which includes real-time analysis engine (RAE) 22
and service authoring environment (SAE) 24. Id. at 4:33–36. RAE 22,
which serves as the real-time event processing and aggregation engine of
EPS 12, is a single-site database system kernel adapted to meet the needs of
high-throughput, real-time systems. Id. at 4:40–43. RAE 22 interacts with

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application-specific front ends 25 associated with applications 18, receives
input streams from data source 26, and delivers output streams to data
sink 28. Id. at 4:50–53. Data source 26 and data sink 28 may represent a
client associated with applications 18. Id. at 4:53–56, 4:66–5:2.
C. 	Illustrative Claim
Of the challenged claims, claims 1, 13, and 21 of the ’133 patent are
independent. Claims 9–12 depend directly or indirectly from claim 1.
Claim 1 is illustrative of the challenged claims and recites:
1. 	An apparatus for processing events generated by at least
one system application, the apparatus comprising:
a processor for executing code to implement at least a
portion of at least one real-time analysis engine, wherein the
real-time analysis engine processes the events, and wherein
associated with the real-time analysis engine in a main-memory
database system is recovery information regarding a recovery
point for the real-time analysis engine.
Id. at 32:23–31.
D. 	Prior Art
Petitioner relies on the following prior art:
Svein-Olaf 	Hvasshovd 	et 	al., 	The 	ClustRa 	Telecom
Database: High Availability, High Throughput, and Real-Time
Response, in Proc. of the 1st VLDB Conference 469, Zurich,
Switzerland (1995) (Ex. 1004, “Hvasshovd”);
U.S. Patent No. 6,226,364 B1 to O’Neil, filed Dec. 8,
1997, issued May 1, 2001 (Ex. 1005, “O’Neil”);
Ben Kao & Hector Garcia-Molina, An Overview of Real-
Time Database Systems, Chapter 19 in Advances in Real-Time
Systems 463 (Sang H. Son ed., Prentice Hall 1995) (Ex. 1006,
“Kao”); and

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David J. DeWitt et al., Implementation Techniques for
Main-Memory Database Systems, in Proc. ACM SIGMOD Int’l
Conf. on Management of Data, Boston, Mass. (June 1984)
(Ex. 1007, “DeWitt”).
E. 	The Instituted Grounds
We instituted inter partes review of claims 1, 9–13, and 21 of the
’133 patent on the following grounds (Dec. on Inst. 27), which are all of the
grounds presented in the Petition (Pet. 6):
References 	Basis 	Claims Challenged
Hvasshovd, Kao, and
DeWitt
35 U.S.C. § 103(a) 	1, 9–13, and 21
O’Neil, Kao, and
DeWitt
35 U.S.C. § 103(a) 	1, 9–13, and 21
F. 	Level of Ordinary Skill in the Art
Citing testimony from Dr. Gibbons, Petitioner contends a person
having ordinary skill in the art would have had “at least a Bachelor’s degree
in electrical engineering or computer science (or equivalent degree or
experience) with at least two years of experience in the design and/or
development of database and record management systems” or, alternatively,
“less than two years of practical experience but . . . more formal education in
computer science, such as a Master’s degree.” Pet. 5–6 (citing Ex. 1002
¶¶ 9–11). Patent Owner does not take a position regarding the level of
ordinary skill in the art, but Dr. Jones “generally agree[s] with the level of
ordinary skill described by [Dr.] Gibbons.” Ex. 2003 ¶ 20. We apply
Petitioner’s definition of the level of ordinary skill in the art. We are
satisfied that this definition comports with the level of skill necessary to

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understand and implement the teachings of the ’133 patent and the asserted
prior art.
G. 	Claim Interpretation
In our Institution Decision, we granted Patent Owner’s motion for a
district court-type claim construction under 37 C.F.R. § 42.100(b) (2017)
due to expiration of the ’133 patent within 18 months from entry date of the
Notice of Filing Date Accorded to the Petition. Dec. on Inst. 6–7.
Accordingly, our interpretation of the claims is similar to that of a district
court. See 37 C.F.R. § 42.100(b) (2017); In re Rambus Inc., 694 F.3d 42, 46
(Fed. Cir. 2012). Under the standard applied by district courts, claim terms
are generally given their plain and ordinary meaning as would be understood
by a person of ordinary skill in the art at the time of the invention and in the
context of the entire patent disclosure. Phillips v. AWH Corp., 415 F.3d
1303, 1313 (Fed. Cir. 2005) (en banc). “There are only two exceptions to
this general rule: 1) when a patentee sets out a definition and acts as his own
lexicographer, or 2) when the patentee disavows the full scope of a claim
term either in the specification or during prosecution.” Thorner v. Sony
Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). We
apply the district court standard to the claims of the ’133 patent.
1. 	Whether the Preambles of the Challenged Claims Are Limiting
In our Institution Decision, we determined that the preambles of the
challenged claims are limiting because the preambles provide antecedent
basis for certain limitations in the bodies of the claims. Dec. on Inst. 8. The
parties do not dispute this determination (see PO Resp. 6; Pet. Reply 3), and

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we discern no reason to change it. Accordingly, we adopt our analysis from
the Decision on Institution and consider the preambles limiting in this
Decision. See Dec. on Inst. 8.
2. 	Construction of Claim Terms
We determine that no terms require explicit construction. See, e.g.,
Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013,
1017 (Fed. Cir. 2017) (“[W]e 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))).
II. 	ANALYSIS
A. 	Principles of Law
A 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 subject matter
pertains. See 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 skill in the art; and (4) where in evidence, so-called secondary
considerations.2 See Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
2 Patent Owner does not put forth any arguments or evidence related to
secondary considerations of nonobviousness.

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We also recognize that prior art references must be “considered together
with the knowledge of one of ordinary skill in the pertinent art.” In re
Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (citing In re Samour, 571 F.2d
559, 562 (CCPA 1978)). We analyze Petitioner’s obviousness grounds with
the principles identified above in mind.
B. 	Obviousness Ground Based on O’Neil, Kao, and DeWitt
Petitioner contends the subject matter of claims 1, 9–13, and 21 would
have been obvious over O’Neil, Kao, and DeWitt. Pet. 47–63; Pet. Reply 3–
16. Patent Owner disputes Petitioner’s contentions. PO Resp. 5–34; PO
Sur-Reply 4–15.
1. 	O’Neil
O’Neil is a U.S. patent directed to a method and system for providing
prepaid and credit-limited cellular telephone services. Ex. 1005, 1:6–9.
Figure 1 of O’Neil is reproduced below.

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Figure 1 is a functional block diagram of cellular mobile radiotelephone
(CMR) system 10 including real-time telephone call monitoring, rating, and
response system 11 with associated prepaid telephone card system 12. Id. at
13:18–27. CMR system 10 includes Mobile Switching Center (MSC) 13,
which is connected to cell transceiver 14 by way of voice channel link 15
and overhead data channel link 16. Id. at 13:33–36. Cell transceiver 14
maintains bidirectional communications 17 with a large number of cellular
mobile radiotelephones (CMRs) 18. Id. at 13:38–41.
MSC 13 creates a billing record known as a call detail record (CDR)
for each telephone call connected through MSC 13. Id. at 13:58–60.
Specifically, “MSC 13 maintains in-process CDR records 36, which are
created and augmented for individual telephone calls while the telephone
calls are taking place.” Id. at 14:29–31. Real-time interface 38 exposes
in-process CDRs 36 for monitoring by real-time monitoring unit 42 within

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billing system 30 via real-time data link 40. Id. at 14:35–40. CDRs also are
stored in CDR database 24, which is periodically downloaded through CDR
database port 26 and over data link 28 to billing system 30. Id. at 13:64–67.
Real-time monitoring unit 42 and customer service profile database 44
are connected to real-time processor 46 within billing system 30. Id. at
14:66–15:1. Real-time processor 46 computes charges for telephone calls
while the telephone calls are in progress and updates parameters (e.g.,
prepaid balance, credit limit, prepaid rating, and postpaid rating) in a
subscriber’s customer service profile within customer service profile
database 44 while a telephone call is in progress. Id. at 15:1–5, 15:39–45.
Billing system 30 may then use this information to take certain actions in
real time (e.g., requesting verification or alternate payment authorization,
disconnecting an ongoing telephone call, and notifying the police of the
most recent location of a detected fraudulent telephone call) via command
generator 48 in response to charges associated with the telephone call. Id. at
15:6–14. These capabilities facilitate a wide range of billing and fraud
prevention options. See id. at 15:39–67.
2. 	Kao
Kao is a chapter titled “An Overview of Real-Time Database
Systems” within a book titled Advances in Real-Time Systems. Ex. 1006, i,
463. The chapter “give[s] an overview of the problems that arise in
designing a real-time database system, and discuss[es] some of the possible
solutions.” Id. at 463. Kao describes “telephone switching (e.g., translating
an 800 number into an actual number)” as an example of an application that
might use a real-time database system. Id. at 463–64.

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If memory is plentiful, much of the data for a real-time database
system can reside in main memory, thus forming a memory resident
database system (MRDBS). Id. at 479. According to Kao, MRDBSs have
“many features, such as fast and predictable access time, which make [them]
particularly suitable for real-time applications.” Id.
One problem with storing data in MRDBSs is volatility because data
stored in main memory do not survive power or CPU failures. Id. at 481.
Kao teaches that backup storage on disks is one solution to the problem,
though recovery protocols tied to disk storage with a transaction log “may be
too slow for real-time applications.” Id. As an alternative, Kao mentions a
method of making a small part of main memory stable by using a separate
battery backup. Id. Kao expressly references DeWitt as describing this
technique. Id. at 481, 484.
3. 	DeWitt
DeWitt is an article titled “Implementation Techniques for Main
Memory Database Systems” from the Proceedings of the Association for
Computing Machinery’s (ACM) Special Interest Group on Management of
Data (SIGMOD) 1984 annual meeting. Ex. 1007, i, ii, 1. DeWitt addresses
volatility in main memory databases and states that “a small portion of
[main] memory can be made stable by providing it with a back-up battery
power supply.” Id. at 6 (§ 5.1); see also id. at 8 (§ 5.4) (same).
DeWitt also describes recovery schemes for main memory databases.
See id. at 6–8 (§ 5). DeWitt states that “[a]n approach for reducing recovery
time is to periodically checkpoint the database to stable storage,” which
“limits recovery activities to those transactions that are acting at the

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checkpoint or [that] have begun since the last checkpoint.” Id. at 7 (§ 5.3).
DeWitt also describes that the stable portion of memory can be used to hold
an in-memory log, “which can be viewed as a reliable disk output queue for
log data.” Id. at 8 (§ 5.4).
4. 	Claim 1
In its obviousness analysis for claim 1, Petitioner maps O’Neil’s
“in-process CDRs [call detail records]” to the recited “events” and contends
that in-process CDRs are generated by “applications hosted or implemented
by MSC [Mobile Switching Center] 13,” which Petitioner maps to the “at
least one system application.” Pet. 51 (citing Ex. 1002 ¶ 97; Ex. 1005,
13:57–67, 14:29–40); see also id. at 52–53 (describing O’Neil’s billing and
fraud detection real-time applications from the perspective of billing
system 30, which processes “in-process CDRs”). Petitioner further contends
that in-process CDRs are processed by O’Neil’s real-time monitoring unit 42
and real-time processor 46, both of which Petitioner maps to the recited
“apparatus for processing events.” Id. at 51–52 (citing Ex. 1002 ¶ 98;
Ex. 1005, 15:1–14). Petitioner also maps O’Neil’s real-time processor 46 to
the recited “processor for executing code.” Id. at 52 (citing Ex. 1002 ¶ 99).
Petitioner contends an ordinarily skilled artisan would have understood that
processor 46 “implement[s] . . . a portion of at least one real-time analysis
engine” because “O’Neil’s processor processes events for many of the same
types of real-time applications disclosed by the ’133 patent.” Id. at 52–53.
In particular, Petitioner cites O’Neil’s billing and fraud detection
capabilities. Id. at 53 (citing Ex. 1005, 6:21–26, 15:1–11, 15:39–67).

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For the “main-memory database system,” Petitioner cites O’Neil’s
prepaid telephone services database 58 and customer service profile
database 44, but Petitioner acknowledges that O’Neil does not state whether
these are in main memory. Id. at 54 (citing Ex. 1002 ¶ 102; Ex. 1005,
14:46–54, 16:9–10, Fig. 1). Petitioner relies on Kao for teaching the use of
main memory databases, which have “fast and predictable access time[s].”
Id. (quoting Ex. 1006, 479). For the recited “recovery information regarding
a recovery point for the real-time analysis engine,” Petitioner cites Kao’s
teaching on making a portion of main memory stable via a separate battery
backup. Id. at 22 (citing Ex. 1006, 481–82), 55.
Petitioner contends an ordinarily skilled artisan “would have found it
obvious to use the main-memory databases discussed in Kao in O’Neil’s
system” for either of O’Neil’s databases. Id. at 54–55 (citing Ex. 1002
¶ 103). Petitioner cites Kao for teaching that “main memory databases . . .
have features such as fast and predictable access times that are ‘very
desirable’ in real-time systems and ‘may even be necessary if transactions
have extremely tight time constraints.’” Id. at 55 (quoting Ex. 1006, 479,
481). Petitioner also cites Kao’s comment that telephone switching is an
example of an application with “stringent timing requirements” for which a
real-time database would be useful. Id. at 56 (quoting Ex. 1006, 464). As
such, Petitioner contends an ordinarily skilled artisan would have been
motivated “to use Kao’s main memory databases in O’Neil’s real-time
telephone call monitoring system . . . because (i) it was known that
telephone routing and billing systems required tight timing requirements,
and (ii) it was known that main memory databases are particularly suitable
for these types of systems.” Id. (citing Ex. 1002 ¶ 106). Characterizing

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O’Neil’s system as modular, Petitioner contends Kao’s main memory
database could have been added “in a ‘plug-and-play’ fashion” with routine
skill in the art and predictable results. Id. (citing Ex. 1002 ¶ 107).
Petitioner further contends an ordinarily skilled artisan “would have
found it . . . obvious to store recovery information regarding a recovery point
for the real-time analysis engine in O’Neil (e.g., the real-time processor 46)
in a main memory database system, as taught by Kao.” Id. at 55; see also id.
at 56 (same). According to Petitioner, storing Kao’s recovery point in main
memory “would have been a good idea” if Kao’s main memory database
were used in O’Neil’s system. Id. at 57 (citing Ex. 1002 ¶ 108).
For claim 1, Petitioner cites DeWitt as follows: “To the extent Patent
Owner contends Kao’s teachings regarding storing recovery information on
memory or on disk are insufficiently specific, [an ordinarily skilled artisan]
would have found it obvious to refer to DeWitt for further implementation
details, as Kao expressly cites to DeWitt for such details.” Id. (citing
Ex. 1002 ¶ 109; Ex. 1006, 481; Ex. 1007, 7–8).
Patent Owner calls into question Petitioner’s stated motivation for
combining Kao with O’Neil, namely, the purported “tight timing
requirements” of O’Neil’s real-time telephone call monitoring system. PO
Resp. 14–15 (citing Pet. 56), 18–25. In particular, Patent Owner contends
“O’Neil does not focus on event processing during the critical
call-connection phase of a telephone call” in the same way that the
’133 patent does. Id. at 20. According to Patent Owner, O’Neil’s real-time
processor 46 receives data from real-time monitoring unit 42 and “makes [a]
determination about what actions to take as the call progresses.” Id. at 21
(citing Ex. 1005, 5:1–18; Ex. 2003 ¶ 62). Citing testimony from Dr. Jones,

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Patent Owner contends that analysis made during the course of a call “is not
bound by the call-connection target service/response time constraints of only
a few milliseconds” discussed in the ’133 patent. Id. at 21–22 (citing
Ex. 2003 ¶ 64). Rather, Patent Owner contends the required response time is
on the order of seconds. Id. at 21–23 (citing Ex. 1005, 17:4–7; Ex. 2003
¶¶ 64–66; Ex. 2004, 127:18–128:7). Patent Owner also argues that, contrary
to Petitioner’s contention (Pet. 56), “upgrading databases 58 or 44, or any
other database within O’Neil’s billing system 30, [would not] have any
impact on the call routing speeds because call routing is completed before
the process reaches the billing system 30.” PO Resp. 24 (citing Ex. 1005,
21:38–22:32, Fig. 6; Ex. 2003 ¶ 67).
We agree with Patent Owner that Petitioner’s proffered reasoning to
combine the references is inadequate. Petitioner’s stated motivation to
implement Kao’s main memory database in O’Neil’s real-time telephone
call monitoring system is premised on the “tight timing requirements” of
“telephone routing and billing systems.” Pet. 56. Yet Patent Owner puts
forth evidence that the timing requirement of O’Neil, which relates to
monitoring of calls for billing purposes, is on the order of seconds. See PO
Resp. 21–23; see also Ex. 1005, 17:4–7 (O’Neil stating that its
“verification-and-deposit transaction preferably occurs within a few seconds
during the course of the telephone call”), 18:65–67 (O’Neil stating that it
seeks to prevent “very large fraudulent roaming charges,” which indicates a
relatively lower level of required timing responsiveness (emphasis added));
Ex. 2003 ¶ 64 (Dr. Jones testifying that “response target times of hundreds
of milliseconds or even seconds . . . are adequate for O’Neil”). Patent
Owner explains that, in the context of O’Neil’s billing and call duration

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application, the difference between checking a customer’s balance every few
milliseconds and every few seconds is not significant. PO Resp. 21–22
(citing Ex. 2003 ¶ 64)). Indeed, Petitioner’s declarant, Dr. Gibbons, agreed
during cross-examination that augmenting O’Neil’s in-process CDRs once a
second is acceptable and reasonable from a latency perspective. Ex. 2004,
127:18–128:7. This evidence undermines Petitioner’s suggestion that
O’Neil’s telephone routing and billing system had “tight timing
requirements” that would have warranted the use of a main memory
database.
O’Neil does not specify the type of database used for customer service
profile database 44 and prepaid telephone services database 58. See Pet. 54;
Ex. 1002 ¶ 102. Dr. Jones testifies that the “vast majority of database
systems” at the time of the ’133 patent were disk-based database systems.
Ex. 2003 ¶ 51. We credit this uncontested testimony because it is consistent
with other evidence in the record. See Ex. 1001, 5:39–41 (calling
disk-resident database systems “conventional”); Ex. 1002 ¶ 30 (Dr. Gibbons
calling disk-based databases “conventional”); Ex. 2004, 45:4–46:2
(Dr. Gibbons testifying that commercial product lines for disk-based
databases were “well developed and mature, [and] had been in place . . . for
decades at the time of the invention.”). Dr. Gibbons, also testified that a
majority of database systems in 1999 were implemented using disks.
Ex. 2006, 42:10–15. Considering that disk-based databases were
conventional at the time the ’133 patent was filed, Dr. Jones further testifies
that disk-based databases had adequate latency to meet O’Neil’s
requirements. Ex. 2003 ¶¶ 51, 57, 64. Petitioner does not dispute this point.
We again credit Dr. Jones’s testimony because it is consistent with

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Dr. Gibbons’s testimony that once-per-second response times were adequate
in O’Neil (see Ex. 2004, 127:18–128:7) and it is also consistent with the
’133 patent’s statement that “[a] single disk access can account for from tens
to hundreds of milliseconds” (Ex. 1001, 5:42–44). We additionally note
Dr. Gibbons’s testimony that, in 1999, if one were able to “meet the
deadlines that were set out and the predictability of the deadlines and the
system throughput that [one] were targeting using a dis[k]-based system,
then [one] may well have just done a dis[k]-based database.” Ex. 2006,
42:22–43:2. Considering this evidence, we agree with Patent Owner (see
PO Resp. 14–15) that the reasons articulated by Petitioner would not have
motivated an ordinarily skilled artisan to use a main memory database—
rather than a conventional disk-based database—in O’Neil’s system.
Patent Owner also puts forth evidence showing that Petitioner’s
proposed modifications to O’Neil (i.e., upgrading O’Neil’s database 44
and/or database 58 to main memory databases (see Pet. 56)) would not have
affected the timing of O’Neil’s call routing. See PO Resp. 23–24.
According to Patent Owner, “O’Neil’s MSC 13 ‘receives and routes’ the
communication in step 602 . . . , before the in-process CDRs are created and
monitored in steps 604 and 606.” Id. at 24 (citing Ex. 1005, 21:38–22:32,
Fig. 6). Thus, Patent Owner argues that Petitioner’s proposed modifications
of database 44 and/or database 58 would not have had “any impact on the
call routing speeds because call routing is completed before the process
reaches the billing system 30.” Id.
We agree with Patent Owner because Figure 6 of O’Neil illustrates
that calls are routed before in-process CDRs (i.e., “events”) are generated.
See Ex. 1005, 21:38–22:32, Fig. 6. This undermines Petitioner’s suggestion

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(Pet. 56) that modifying O’Neil’s databases 44 or 56 would have improved
the timing of telephone routing/switching, a premise of Petitioner’s rationale
for the combination of references.3
As further evidence against Petitioner’s proposed combination, Patent
Owner argues that an ordinarily skilled artisan would have considered other
disadvantages of main memory databases. Specifically, Patent Owner cites
Kao’s discussion that main memory databases were costly. PO Resp. 15–16
(citing Ex. 1006, 481; Ex. 2003 ¶ 53); see also Ex. 2004, 45:4–17
(Dr. Gibbons testifying that in 1999 main memory was “expensive”).
Although Kao and Dr. Gibbons both recognize the price of memory
continues to drop (Ex. 1006, 481; Ex. 2004, 46:6–7), Dr. Gibbons also
testified that a cost difference still exists today between main memory and
disk drives. Ex. 2004, 46:20–47:6. In fact, Dr. Gibbons further testified that
“if cost was your primary driver you’d still go to disk-based systems” today.
Ex. 2004, 47:6–9. Patent Owner also cites Kao’s discussion and Dr. Jones’s
testimony that main memory was limited in capacity, which necessarily
limits how much data could reside in a main memory database. See PO
Resp. 15–16 (citing Ex. 1006, 481; Ex. 2003 ¶ 53). Thus, in the absence of
other persuasive reasons to modify O’Neil, the record evidence of high cost
and limited capacity associated with main memory databases tends to
3 The fact that certain “events” in the ’133 patent occur outside of the
call-connection phase of a call (see Pet. Reply 8) does not salvage
Petitioner’s rationale for the combination in this regard. Petitioner premised
its obviousness rationale at least partially on tight timing requirements for
call routing (see Pet. 56), and its proposed modification of O’Neil’s
databases would not have resulted in faster call routing. See PO Resp. 24
(citing Ex. 1005, 21:38–22:32, Fig. 6).

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undermine the implication that an ordinarily skilled artisan would have used
main memory instead of conventional disk-based memory.
Patent Owner additionally cites Kao’s discussion on the volatility of
main memory databases posing a problem. PO Resp. 16 (citing Ex. 1006,
481; Ex. 2003 ¶ 54). Although Petitioner argues in reply that a “hybrid
solution[] utilizing both main memory and disk” might alleviate these
drawbacks (Pet. Reply 9–10), Petitioner’s articulated rationale does not
support implementing any portion of O’Neil’s databases in main memory,
given the adequacy of conventional disk-based databases for O’Neil’s
application. The availability of main memory volatility remedies (see
Pet. 22; Pet. Reply 10) similarly would have not supported the use of main
memory databases in O’Neil in the absence of an initial reason to do so.
Moreover, the challenged claims do not merely recite the presence of
a main memory database; rather, they require storing recovery information
in the main memory database. As noted above, to meet this limitation of the
claims, Petitioner contends that “it would have been a good idea to . . . store
recovery information regarding a recovery point for the main memory
database . . . in main memory.” Pet. 57. Given the volatility problems of
main memory, namely that data stored therein do not survive a CPU failure,
power failure, or system crash (see Pet. 15; Ex. 1006, 481; Ex. 1012,
Abstract), it is unclear why it would have been a “good idea” to store
recovery information in main memory. The very information necessary to
recover from a failure—recovery information—would be lost in the failure
or crash. See Ex. 1006, 481 (“Data stored in main memory usually do not
survive through a power failure or a CPU failure.”). Although Kao
recommends a solution to the problem of main memory volatility—battery

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backup for a small part of the memory (Ex. 1006, 481)—it is unclear why an
ordinarily skilled artisan would have taken that path when there is no
perceptible benefit from using main memory in the first place, as discussed
above. At the very least, Petitioner has not adequately supported its “good
idea” rationale for storing recovery information in the main memory
database. We consider the added cost, limited capacity, and volatility of
main memory databases at the time of the invention to be further reasons
why an ordinarily skilled artisan would not have modified O’Neil’s
databases as proposed by Petitioner.
In its Reply, Petitioner highlights “improved access times that are
desirable in real-time systems” as a purported reason why an ordinarily
skilled artisan would have combined Kao and DeWitt with O’Neil. Pet.
Reply 6–7 (citing Pet. 54–56; Ex. 1002 ¶¶ 105–107). Although the Petition
references Kao’s teachings on the desirability of faster access times in
real-time systems (see Pet. 54, 55), Petitioner’s rationale for the combination
of O’Neil, Kao, and DeWitt is not based on a generalized desire for speed
improvements. Rather, as discussed above, Petitioner contends “tight timing
requirements” of “telephone routing and billing systems,” such as O’Neil’s
system, would have motivated the combination. See Pet. 56. And Patent
Owner’s evidence shows that conventional databases were sufficiently fast
to meet O’Neil’s timing requirements. See, e.g., Ex. 2003 ¶¶ 51, 57, 64. We
are also mindful that “obviousness concerns whether a skilled artisan not
only could have made but would have been motivated to make the
combinations or modifications of prior art to arrive at the claimed
invention.” Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1073 (Fed. Cir.
2015). Petitioner’s reliance on a generic desire for “improved access times”

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in the Reply strikes us as merely a bald statement about what could have
been achieved at the time of the invention.
At oral argument, Petitioner’s counsel highlighted other parts of its
Petition that allegedly support additional reasons for combining Kao with
O’Neil. For example, Petitioner’s counsel mentioned “a plug and play
aspect of O’Neil that Dr. Gibbons had identified and worked through in the
[P]etition” as being a separate reason for the combination. Tr. 18:16–21.
This refers to Petitioner’s contention that Kao’s main memory database “can
be readily dropped into the [O’Neil] system (e.g., in a ‘plug-and-play’
fashion).” Pet. 56 (citing Ex. 1002 ¶ 107). But as presented, this is actually
a statement of anticipated success in combining the references, rather than
an articulated reason to combine them in the first instance. See id. (stating
that, as a result of the plug-and-play aspect of O’Neil’s system, “this
combination would have required nothing more than routine skill in the art,
and would have had predictable results”). Just as in Belden, the fact that the
combination might have been successful does not mean that an ordinarily
skilled artisan would have been motivated to make the combination. See
Belden, 805 F.3d at 1073.
At oral argument, Petitioner’s counsel additionally mentioned
improved throughput as another reason to combine O’Neil, Kao, and
DeWitt. See Tr. 27:1–8. This purported reason is presented in
Dr. Gibbons’s second declaration (Ex. 1017 ¶ 17), which was submitted with
Petitioner’s Reply, and certain of Petitioner’s demonstratives (Paper 31, 47–
48). Patent Owner objects to Petitioner’s arguments about throughput as not
being timely, as not being developed in Petitioner’s papers, and as not being
supported by analysis and underlying facts in Dr. Gibbons’s declaration. PO

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Sur-Reply 10–11 n.3. Patent Owner also objects to Petitioner’s
Demonstrative Slide Nos. 47 and 48 for similar reasons. Paper 29, 1.
We agree with Patent Owner that throughput as an obviousness
rationale is not developed in Petitioner’s papers. At oral argument,
Petitioner’s counsel identified certain instances in which the Petition uses
the word “throughput” (Tr. 65:8–24), but these references to throughput are
not part of Petitioner’s rationale for the combination in this ground. See
Pet. 15 (describing Hvasshovd’s discussion on main memory databases
meeting throughput requirements), 52–53 (Petitioner’s analysis for the
“real-time analysis engine” limitation of claim 1 with a passing mention to
“a high-throughput computer system”). We also agree with Patent Owner
(PO Sur-Reply 10–11 n.3) that Petitioner makes no mention of throughput as
an obviousness rationale in its Reply. Because this purported rationale is not
properly presented in Petitioner’s papers, we do not consider it in rendering
this Decision. We also sustain Patent Owner’s objections to Petitioner’s
Slide Nos. 47 and 48.
For these reasons, Petitioner has not established a persuasive reason
for combining O’Neil, Kao, and DeWitt in the manner proposed by
Petitioner. Based on the entire trial record, we determine that Petitioner has
not established by a preponderance of the evidence that the subject matter of
claim 1 would have been obvious over the combination of O’Neil, Kao, and
DeWitt under 35 U.S.C. § 103(a).
5. 	Remaining Claims
Petitioner relies on the same deficient rationale for combining O’Neil,
Kao, and DeWitt in its analysis of claims 9–13 and 21. See Pet. 55–63.

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Thus, we also determine Petitioner has not shown by a preponderance of the
evidence that the subject matter of claims 9–13 and 21 would have been
obvious over the combination of O’Neil, Kao, and DeWitt.
C. 	Obviousness Ground Based on Hvasshovd, Kao, and DeWitt
Petitioner contends the subject matter of claims 1, 9–13, and 21 would
have been obvious over Hvasshovd, Kao, and DeWitt. Pet. 16–47; Pet.
Reply 16–27. Patent Owner disputes Petitioner’s contentions. PO
Resp. 34–63; PO Sur-Reply 15–26.
1. 	Hvasshovd
Hvasshovd is a paper directed to a telecommunications database
prototype named “ClustRa” developed to run on standard workstations
interconnected by an asynchronous transfer mode (ATM) switch. Ex. 1004,
469. Hvasshovd notes that telecommunications databases must fulfill very
tough requirements on response time, throughput, and availability. Id.
Thus, “[t]o meet the response time, ClustRa employs a main memory
database for real-time data, main memory logging, and parallel
intra-transaction execution.” Id. at 470. Figure 1 of Hvasshovd is
reproduced below.

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Id. at 471. Figure 1 depicts an architecture of a database system having two
sites with four nodes each. Id. at 470–71. “[T]he database system consists of
a collection of interconnected nodes that are functionally identical and act as
peers, without any node being singled out for a particular task.” Id. at 471.
Each node is a standard Unix workstation connected to an ATM switch. Id.
Regarding the type of storage employed in the database system,
Hvasshovd describes the following:
ClustRa is a traditional database server, in the sense that it
manages a buffer of data with a disk-based layout in blocks
. . . . However, it is main memory-based in the sense that tables
may be declared to reside in main memory. Unlike pure main
memory databases, this allows for many classes of queries and
transactions, not limited to those requiring real-time response.
Id. (citations omitted).
2. 	Claim 1
In its obviousness analysis for claim 1, Petitioner maps Hvasshovd’s
specialized servers (SCPs) in a network and standard Unix workstation
nodes to the recited “apparatus for processing events.” Pet. 24 (citing

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Ex. 1004, 469–71). Petitioner also maps Hvasshovd’s clients to the recited
“at least one system application” and contends that requests from such
clients are the recited “events.” Id. Petitioner explains that “Hvasshovd’s
‘transaction controller’ is responsible for receiving requests from clients, and
coordinating the execution of the requested transactions.” Id. at 25 (citing
Ex. 1004, 472).
For the “processor for executing code,” Petitioner cites Hvasshovd’s
Unix workstation nodes, which each include a central processing unit. Id.
at 27 (citing Ex. 1002 ¶ 58; Ex. 1004, 470–71). Petitioner contends that
services in each node (i.e., a “transaction controller,” a “database kernel,” a
“node supervisor,” and an “update channel”) “work together to process
‘events,’ such as requests from clients to access (e.g., read, update, delete,
and/or modify) portions of a database.” Id. at 27–28 (citing Ex. 1004, 472).
According to Petitioner, these services “comprise a portion of a
high-throughput computer system that aggregates or processes computer
events,” which an ordinarily skilled artisan would understand to meet the
limitation regarding “a portion of at least one real-time analysis engine” for
“process[ing] the events.” Id. at 28 (citing Ex. 1002 ¶ 59).
Regarding the recited “main-memory database system,” Petitioner
cites Hvasshovd’s ClustRa database, which is implemented in main memory.
Id. at 30–31 (citing Ex. 1002 ¶ 63; Ex. 1004, Abstract, 470). Although the
ClustRa database can be configured to store data blocks on disk (see id. at 31
(citing Ex. 1004, 471)), Petitioner contends an ordinarily skilled artisan
would consider the ClustRa database to be a main memory database
“because it can store data in main memory so as to allow access to that data
at main memory speeds.” Id. at 31–32 (citing Ex. 1002 ¶ 64). And

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Petitioner further contends that “it would have been trivial and obvious” for
a user to “declare that every data block and relational table in the ClustRa
database should be stored in main memory, and not on disk.” Id. at 32
(citing Ex. 1002 ¶ 65; Ex. 1004, 471).
Petitioner cites Hvasshovd, Kao, and DeWitt for teaching “recovery
information regarding a recovery point for the real-time analysis engine.”
Id. at 32–36. In particular, Petitioner cites Hvasshovd’s “main-memory
logging technique,” which, for example, writes a log to main memory of
another node with an independent failure mode. Id. at 33 (citing Ex. 1004,
473, 476). Petitioner maps Hvasshovd’s teachings on checkpointing for
node recovery to the recited “recovery point.” Id. at 33–34 (citing Ex. 1002
¶ 70; Ex. 1004, 474). From Kao, Petitioner cites a teaching on storing
recovery information on disk whereby a transaction log is used to bring a
database up-to-date. Id. at 34–35 (citing Ex. 1006, 481–82). According to
Petitioner, Kao explains that storing recovery information on disk may be
too slow for some applications, so Kao also teaches that certain recovery
information can be stored in main memory that is backed up by a separate
battery. Id. at 35 (citing Ex. 1006, 481–82). Petitioner additionally cites
DeWitt for teaching checkpointing and logging using a portion of memory
backed up by a power supply. Id. at 36 (citing Ex. 1007, 6–8). Petitioner
notes that Kao itself cites DeWitt for these teachings. Id.
Petitioner contends “it would have been obvious to use the main
memory databases described by Kao in Hvasshovd’s system” to the extent
“Hvasshovd alone does not disclose a pure main memory database.” Id.
at 37. Petitioner contends an ordinarily skilled artisan would have been
motivated to make this combination based on common teachings in the

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references about main memory databases being useful where real-time speed
is necessary. Id. (citing Ex. 1002 ¶ 75; Ex. 1004, Abstract; Ex. 1006, 465,
479). Citing testimony from Dr. Gibbons, Petitioner also contends an
ordinarily skilled artisan would have appreciated Kao’s teachings on storing
a recovery point in a non-volatile way (i.e., via main memory backed by a
battery) as addressing a practical implementation problem for main memory
databases. Id. at 37–38 (citing Ex. 1002 ¶ 76). Petitioner further contends
an ordinarily skilled artisan would have looked to DeWitt, which is
expressly cited in Kao, for implementation details on how to store recovery
information. Id. at 38 (citing Ex. 1002 ¶ 77).
In our Decision on Institution, we determined preliminarily that
“Petitioner’s mapping [for claim 1] does not give any explanation about why
or how an ordinarily skilled artisan would have considered Hvasshovd’s
client to be a system application.” Dec. on Inst. 25. We based our
determination on the following passage from the Petition, which we found to
constitute Petitioner’s “entire argument” and which we found to be devoid of
“citations or analysis to support Petitioner’s contention that a client in
Hvasshovd may be regarded as a ‘system application’”:
Hvasshovd also explains that these apparatuses are for
processing events generated by at least one system application.
These “events” can include requests from system applications
(which Hvasshovd calls “clients”) that require accessing the
ClustRa database.
Id. (quoting Pet. 24).
In its Reply, Petitioner argues that an ordinarily skilled artisan “would
have readily understood that a client as described by Hvasshovd would be
synonymous with a ‘system application’ as recited by the ’133 patent.” Pet.
Reply 17 (citing Ex. 1017 ¶ 33). According to Petitioner, “where

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Hvasshovd describes requests made by its clients, a[n ordinarily skilled
artisan] would recognize that those requests are coming from applications.”
Id. at 17–18 (citing Ex. 1017 ¶ 34). In support of this assertion, Petitioner
cites Dr. Jones’s cross-examination testimony for the proposition that clients
typically have software and that applications can act as clients. Id. at 17
(citing Ex. 1016, 23:4–12, 37:6–14, 38:16–25).
Patent Owner argues that we should again determine that Petitioner
has failed to prove that Hvasshovd’s clients are “system applications” that
generate events. PO Resp. 43; PO Sur-Reply 18. Patent Owner calls
Petitioner’s reply arguments “untimely” such that we should not consider
them. PO Sur-Reply 16.
Patent Owner additionally argues that Petitioner does not account for
the “system” aspect of a “system application.” PO Resp. 41–43. In
particular, Patent Owner argues Figure 2 of Hvasshovd depicts clients that
are external to Hvasshovd’s system, and Patent Owner contends Petitioner
“dodges” this argument in Petitioner’s Reply. Id. at 41–42; PO Sur-Reply
16 (both citing Ex. 1004, Fig. 2). Rather, according to Patent Owner,
“Petitioner now argues Hvasshovd’s client is the claimed system application
merely because it is software.” PO Sur-Reply 17 (citing Pet. Reply 17–18).
Patent Owner additionally notes Dr. Gibbons’s cross-examination testimony
wherein he was not sure about what was meant in the ’133 patent by a client
and server being on “the same system.” PO Resp. 35–36; PO Sur-Reply 17–
18 (both citing Ex. 1001, 6:23–25; Ex. 2001, 82:2–7). Thus, Patent Owner
contends Petitioner has failed to “include some explanation for why an
external ‘client’ in Hvasshovd is a ‘system application’ given Hvasshovd’s
teachings.” PO Resp. 42.

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Having considered the additional briefing submitted since our
Decision on Institution, we determine that Petitioner’s mapping of the
recited “system application” to Hvasshovd’s client remains fatally flawed.
Petitioner’s obviousness contentions on page 24 of the Petition include
neither supporting evidence nor analysis to undergird its proposed mapping
to Hvasshovd. See Tr. 29:14–15 (Petitioner’s counsel conceding that
Petitioner’s mapping is “not described”). We also agree with Patent Owner
(PO Sur-Reply 16) that Petitioner’s reply arguments attempting to justify its
mapping of the “system application” to Hvasshovd’s client are untimely.
Specifically, Petitioner cites an additional declaration from Dr. Gibbons and
a book (“The Benchmark Handbook”; Ex. 1009)4 as support that an
ordinarily skilled artisan would have considered Hvasshovd’s client to be a
system application (Pet. Reply 17–18), but this new rationale and evidence
exceed the scope of a proper reply. See 37 C.F.R. § 42.23(b) (“A reply may
only respond to arguments raised in the corresponding opposition”); Trial
Practice Guide Update (Aug. 2018)5, 15 (“‘[R]espond,’ in the context of
§ 42.23(b), does not mean embark in a new direction with a new approach as
compared to positions taken in a prior filing . . . . It is . . . improper to
present in reply new evidence (including new expert testimony) that could
have been presented in a prior filing . . . .”). Petitioner’s new rationale
explaining its claim mapping in the Reply is not based on a previous position
Petitioner put forth in the Petition; rather, Petitioner posits a rationale about
4 Although Petitioner argues this book was “filed with the Petition” (Pet.
Reply 18), Petitioner never previously cited the passage now relied upon in
the Reply.
5 Available at https://go.usa.gov/xU7GP.

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an ordinarily skilled artisan’s perspective where none existed previously.
We may refuse to consider arguments in a reply brief where, as here, they
represent an entirely new rationale. Intelligent Bio-Sys., Inc. v. Illumina
Cambridge Ltd., 821 F.3d 1359, 1369–70 (Fed. Cir. 2016). Accordingly, we
do not consider Petitioner’s new rationale because it is an improper reply
argument.
And, even considering Petitioner’s untimely rationale, Patent Owner
points out a deficiency in Petitioner’s new analysis. In its Response, Patent
Owner argues that Hvasshovd depicts its client as external to its system. PO
Resp. 40 (citing Ex. 1004, Fig. 2). Although Petitioner argues in reply that
Hvasshovd’s client amounts to an application (see Pet. Reply 17–19),
Petitioner offers no analysis on how it gives effect to the word “system” in
the recited “system application.” In addition, Petitioner does not provide a
consistent theory about how to interpret “system” in light of the ’133 patent
specification. Petitioner argues in reply that an ordinarily skilled artisan
considering the ’133 patent would have recognized the “the client (and the
server, in this instance) would be processes—or system applications—
running on the same hardware (i.e., ‘system.’).” Pet. Reply 19 (emphasis
omitted) (citing Ex. 1017 ¶ 36). But Dr. Gibbons agreed during cross-
examination that locating various elements of a network on the same
physical hardware “does not necessarily mean that those elements are on the
same system.” Ex. 2006, 11:11–17; see also id. at 5:21–6:3 (Dr. Gibbons
testifying that “[y]ou can be physically in the same location but be on
different systems.”). And Dr. Gibbons was not sure how to interpret
whether a client and server are on “the same system” consistent with the
’133 patent specification. Ex. 2004, 82:2–7. Thus, even considering

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Petitioner’s untimely arguments, these arguments do not persuasively show
how or why any ordinarily skilled artisan would have considered
Hvasshovd’s client to be a “system application.”
For these reasons, Petitioner has not established that the combination
of Hvasshovd, Kao, and DeWitt teaches or suggests a “system application”
commensurate with claim 1. Based on the entire trial record, we determine
that Petitioner has not established by a preponderance of the evidence that
the subject matter of claim 1 would have been obvious over the combination
of Hvasshovd, Kao, and DeWitt under 35 U.S.C. § 103(a).
3. 	Remaining Claims
Petitioner relies on the same deficient analysis for the recited “system
application” with respect to claims 9–13 and 21. See Pet. 38–47. Thus, we
also determine Petitioner has not shown by a preponderance of the evidence
that claims 9–13 and 21 would have been obvious over the combination of
Hvasshovd, Kao, and DeWitt.
III. 	CONCLUSION
Petitioner has not demonstrated by a preponderance of the evidence
that claims 1, 9–13, and 21 of the ’133 patent would have been obvious
based on either of the instituted grounds of unpatentability.

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IV. 	ORDER
Accordingly, it is:
ORDERED that, on the record before us, Petitioner has not shown by
a preponderance of the evidence that claims 1, 9–13, and 21 of the
’133 patent are unpatentable;
FURTHER ORDERED that Patent Owner’s objections (Paper 29, 1)
to Petitioner’s Demonstrative Slide Nos. 47 and 48 (Paper 31, 47–48) are
sustained; and
FURTHER ORDERED that, because this is a Final Written Decision,
parties to this proceeding seeking judicial review of our Decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

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PETITIONER:
David L. Cavanaugh
Arthur Shum
Evelyn C. Mak
Wilmer, Cutler, Pickering, Hale & Dorr LLP
david.cavanaugh@wilmerhale.com
arthur.shum@wilmerhale.com
evelyn.mak@wilmerhale
PATENT OWNER:
Kenneth J. Weatherwax
Edward Hsieh
Parham Hendifar
Lowenstein & Weatherwax LLP
weatherwax@lowensteinweatherwax.com
hsieh@lowensteinweatherwax.com
hendifar@lowensteinweatherwax.com