Symantec Corp v. Veeam Software Corp

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Symantec Corporation (Delaware)
  • Defendant: Veeam Software Corporation (Delaware)
  • Plaintiff’s Counsel: Quinn Emanuel Urquhart & Sullivan, LLP
• Case Identification: 3:12-cv-05443, N.D. Cal., 10/22/2012
• Venue Allegations: Plaintiff alleges venue is proper because Defendant conducts business in the district, has committed alleged acts of infringement in the district, and was previously a defendant in the district without objecting to jurisdiction.
• Core Dispute: Plaintiff alleges that Defendant’s virtual machine backup and replication software products infringe four patents related to data restoration and recovery in virtualized environments.
• Technical Context: The dispute centers on technologies for backing up and rapidly recovering data and entire system states, a critical function for enterprise IT infrastructure that relies on server virtualization.
• Key Procedural History: The complaint notes that the case is related to a prior action, Civil Action No. 3:12-cv-00700, before the same court. Subsequent to the filing of this complaint, all four patents-in-suit underwent Inter Partes Review (IPR) proceedings at the U.S. Patent and Trademark Office. These proceedings resulted in the cancellation of numerous claims in each patent, including all independent claims that were likely the basis for the original complaint.

Case Timeline

Date	Event
2003-07-18	U.S. Patent No. 7,024,527 Priority Date
2005-07-13	U.S. Patent No. 7,480,822 Priority Date
2006-04-04	U.S. Patent No. 7,024,527 Issues
2008-02-07	U.S. Patent No. 7,831,861 Priority Date
2009-01-20	U.S. Patent No. 7,480,822 Issues
2009-03-31	U.S. Patent No. 8,117,168 Priority Date
2010-11-09	U.S. Patent No. 7,831,861 Issues
2012-02-14	U.S. Patent No. 8,117,168 Issues
2012-10-22	Complaint Filed
2013-10-22	IPR proceedings initiated against patents-in-suit
2018-02-14	IPR Certificate issues for U.S. Patent No. 7,480,822
2018-02-14	IPR Certificate issues for U.S. Patent No. 8,117,168
2018-02-15	IPR Certificate issues for U.S. Patent No. 7,831,861
2018-02-22	IPR Certificate issues for U.S. Patent No. 7,024,527

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 7,024,527 - "Data Restore Mechanism," issued April 4, 2006.

The Invention Explained

• Problem Addressed: The patent addresses the significant application downtime that occurs during data restoration from backups. Restoring large databases can take hours or even days, during which applications are unable to access the data being restored (ʼ527 Patent, col. 2:3-9).
• The Patented Solution: The invention proposes a method to provide near-instant access to data while a full restore proceeds in the background. It involves generating a "map" that correlates the locations of data blocks on the backup storage with their final destination locations on the primary storage (ʼ527 Patent, col. 2:36-40). When an application requests a block of data, the system checks the map. If the block has not yet been restored by the background process, the system performs an on-demand, immediate restore of that specific block, makes it available to the application, and updates the map (ʼ527 Patent, col. 2:43-51, FIG. 5).
• Technical Importance: This technique significantly reduces the recovery time objective (RTO) by allowing critical applications to resume operation almost immediately, rather than waiting for the entire multi-gigabyte or terabyte dataset to be fully copied.

Key Claims at a Glance

• The complaint does not identify specific claims asserted against Defendant (Compl. ¶¶ 21-25). Independent claim 1 is representative of the invention's system-level scope.
• Essential elements of independent claim 1 include:
  • A primary storage and a backup storage.
  • A "restore application" configured to restore files from the backup to the primary storage.
  • A "file server" configured to, during the restore:
    • Determine that one or more blocks of data needed by an application have not been restored.
    • Direct the restore application to restore the specific needed blocks in response.
  • Wherein the restored blocks are accessible by the application while the full restore is in progress.
• The complaint reserves the right to assert infringement of any claims of the patent.

U.S. Patent No. 7,480,822 - "Recovery and Operation of Captured Running States From Multiple Computing Systems on a Single Computing System," issued January 20, 2009.

The Invention Explained

• Problem Addressed: Recovering a failed computing system from a volume-based backup traditionally requires identical hardware, which may be unavailable, expensive, or time-consuming to procure. This problem is compounded when multiple, interdependent systems fail simultaneously (ʼ822 Patent, col. 1:40-54).
• The Patented Solution: The patent describes a hardware-independent recovery method using virtualization. The "running state" (including OS, applications, and data) of multiple primary computers is captured (ʼ822 Patent, col. 4:41-43). A standard device driver is inserted into each captured state, which is designed to interface with a "common virtualization component" on a single recovery computer (ʼ822 Patent, col. 2:4-8). This virtualization component acts as an abstraction layer, translating communications between the standardized driver in the captured state and the specific, potentially different, hardware of the recovery machine (ʼ822 Patent, col. 6:30-38; FIG. 3). The system also determines the correct boot order for interdependent systems (ʼ822 Patent, col. 2:12-15).
• Technical Importance: This technology enables rapid disaster recovery for complex, multi-server environments onto a single, non-identical piece of hardware, and allows for recovery testing without impacting the original production systems.

Key Claims at a Glance

• The complaint does not identify specific claims asserted against Defendant (Compl. ¶¶ 29-30). Independent claim 1 is representative of the invention's methodological scope.
• Essential elements of independent claim 1 include:
  • Accessing a captured "running state" of multiple primary computing systems on a single computing system.
  • Each captured running state includes (or is altered to include) at least one "device driver" configured to interface with a "common virtualization component".
  • The common virtualization component indirectly interfaces with the single computing system's hardware, which may use a different interface than the device driver.
  • Identifying a "boot order" for the primary computing systems.
  • "Booting" the captured running states in the identified boot order on the single computing system.
• The complaint reserves the right to assert infringement of any claims of the patent.

U.S. Patent No. 7,831,861 - "Techniques for Efficient Restoration of Granular Application Data," issued November 9, 2010.

• Technology Synopsis: The patent addresses the inefficiency of restoring an entire application data store (e.g., a Microsoft Exchange database) simply to recover a granular item (e.g., a single email). The disclosed technique involves virtualizing backup files into a temporary "staging area" and running a recovery process that writes changes to separate recovery files, leaving the original backup unmodified. An application instance can then be mounted using this virtualized data, allowing a user to browse and extract the desired individual items without a full restore (ʼ861 Patent, Abstract; col. 1:12-25).
• Asserted Claims: The complaint does not specify asserted claims (Compl. ¶¶ 36-37).
• Accused Features: The complaint accuses Veeam's "Backup & Replication v6.1 and Universal Application Item-Level Restore" products (Compl. ¶27).

U.S. Patent No. 8,117,168 - "Methods and Systems for Creating and Managing Backups Using Virtual Disks," issued February 14, 2012.

• Technology Synopsis: This patent describes methods for managing backups stored as virtual disk files (e.g., VHD, VMDK). The invention creates a "synthetic full backup" by first taking a full backup to a parent virtual disk, then capturing subsequent incremental changes into a child virtual disk. The system then copies or "rolls up" the changes from the child disk into the parent disk, creating an updated, synthetic full backup without needing to perform another full backup from the source. It also discloses retargeting empty virtual disks to enable a virtual machine to boot directly from these backup files for recovery (ʼ168 Patent, Abstract; col.2:50-67).
• Asserted Claims: The complaint does not specify asserted claims (Compl. ¶¶ 43-44).
• Accused Features: The complaint accuses "Backup & Replication v6.1" (Compl. ¶23).

III. The Accused Instrumentality

Product Identification

The complaint identifies Defendant's "Backup & Replication line of products and related services," specifically naming "Backup & Replication v6.1," "Veeam Backup Free Edition," and "Veeam's Universal Application-Item Recovery" (also referred to as "Universal Application Item-Level Restore") (Compl. ¶¶1, 15, 27).

Functionality and Market Context

The complaint alleges these products provide "virtual infrastructure management and data protection software" (Compl. ¶3) and are used for "backup and recovery for virtual environments" (Compl. ¶15). The complaint asserts that the parties "directly compete for customers in the VM protection market" (Compl. ¶13). The complaint does not provide further technical detail regarding the specific operation of the accused products' features.

IV. Analysis of Infringement Allegations

The complaint does not provide a claim chart or a detailed narrative theory mapping specific product features to claim elements for any of the asserted patents. The infringement allegations are pleaded in a general and conclusory manner, stating that Defendant's products infringe one or more claims of each patent (Compl. ¶¶ 22, 29, 36, 43). The complaint does not provide sufficient detail for a tabular analysis of the infringement allegations.

’527 Patent Infringement Allegations

• The complaint alleges that Veeam infringes the ’527 Patent but does not specify how the accused products meet the limitations of any claim, such as the requirement for a "map" to facilitate on-demand data restoration (Compl. ¶¶ 22-23). The architectural diagram in the patent, which shows the relationship between a File System, Restore Application, and a Map, provides a clear basis for comparison once technical details of the accused products are known. ('527 Patent, FIG. 2).
• Identified Points of Contention: A central question will be evidentiary: what technical mechanism do the accused products use to provide access to data during a restore process? The analysis will depend on whether that mechanism functions as the claimed "file server" determining un-restored blocks and directing the "restore application," potentially using a data structure that meets the definition of a "map."

’822 Patent Infringement Allegations

• The complaint alleges infringement of the ’822 Patent without detailing how the accused products perform the claimed method of capturing running states, inserting virtual drivers, and booting them on a single recovery system via a virtualization component (Compl. ¶¶ 29-30). The patent's Figure 3 illustrates the claimed architecture, showing captured running states being managed by a "Virtualization Component" on a "Recovery Computing System." ('822 Patent, FIG. 3).
• Identified Points of Contention: A key technical question will be whether the accused products modify or alter a captured system image to include a standardized or "virtual" driver as required by the claims, or if they use an alternative mechanism for hardware-independent recovery. Further, the definition of "common virtualization component" will be central to determining infringement.

V. Key Claim Terms for Construction

For the ’527 Patent (based on Claim 1)

• The Term: "map correlating destination locations on primary storage to source locations on backup storage"
• Context and Importance: This term is the central component of the invention, enabling the on-demand restore functionality. Its construction will determine whether the claim covers only specific data structures that explicitly pair source and destination block addresses, or if it more broadly covers any system that can logically determine if a requested block is on backup storage and retrieve it. Practitioners may focus on this term because Defendant may argue its products use a fundamentally different, non-mapping approach to instant recovery.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification suggests the term is not limited to a single structure, describing it as "A correspondence or map" and noting it "may be a bitmap, linked list, or any other suitable data structure" (ʼ527 Patent, col. 3:33-37).
  • Evidence for a Narrower Interpretation: Figure 3 and the accompanying text depict a specific structure containing pairs of "Primary storage block information" and "Backup storage block information" (ʼ527 Patent, FIG. 3; col. 5:62-64). This could be used to argue the term requires a direct, one-to-one correlation table.

For the ’822 Patent (based on Claim 1)

• The Term: "a common virtualization component"
• Context and Importance: This term defines the abstraction layer that enables hardware independence. The dispute may turn on whether this component is merely a standard hypervisor (e.g., VMware ESXi, Microsoft Hyper-V) or if it refers to a specific software module with the distinct functions described in the patent. The scope of this term is critical to whether the patent reads on modern virtual machine recovery products.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The claim language is general, requiring only that the component "runs on the single computing system" and "is configured to at least indirectly interface with hardware" on that system ('822 Patent, col. 13:11-15).
  • Evidence for a Narrower Interpretation: The specification describes a specific functional role for this component: it "receives communications from the standard device drivers, and provides appropriate equivalent commands through the operating system 362 to the recovery system hardware 363" ('822 Patent, col. 6:30-34). An example given is "VMWARE®" ('822 Patent, col. 6:21), but this could be argued as merely an exemplary environment rather than a definition of the component itself.

VI. Other Allegations

Indirect Infringement

The complaint alleges induced infringement, stating that Defendant’s marketing materials, user manuals, and support documentation instruct and encourage end-users to use the accused products in an infringing manner (Compl. ¶17). It also pleads contributory infringement, alleging the products were "especially designed, made, or adapted for use in an infringing manner" and have "no substantial non-infringing uses" (Compl. ¶18).

Willful Infringement

The complaint alleges knowledge on "information and belief" prior to the lawsuit and asserts that, at a minimum, Defendant will have knowledge of the patents from the date the complaint is filed and served (Compl. ¶16). This provides a basis for alleging willful infringement based on both pre- and post-suit conduct.

VII. Analyst’s Conclusion: Key Questions for the Case

1. Evidentiary Sufficiency: The primary question is one of evidence. The complaint's conclusory allegations create a significant gap between the patented technology and the accused products' functionality. A core issue for the court will be whether discovery reveals technical evidence that Veeam's products operate using the specific mechanisms claimed, such as the "map"-based on-demand restore of the ’527 patent or the "virtual driver" insertion of the ’822 patent.

2. Claim Viability Post-IPR: A dispositive issue is the impact of the subsequent IPR proceedings. With many claims, including all original independent claims of the asserted patents, having been cancelled, the fundamental question is whether any valid and infringed claims remain. The case's viability may depend entirely on whether Plaintiff can articulate a viable infringement theory under one of the surviving, narrower dependent claims.

3. Definitional Scope: Should the case proceed on surviving claims, a central legal dispute will be one of claim construction. The case will likely turn on whether key terms like "map" (’527 patent) and "common virtualization component" (’822 patent) are interpreted broadly enough to cover the architecture of modern, hypervisor-centric backup systems or are limited to the specific implementations detailed in the patent specifications.