DCT

1:12-cv-00956

EMC Corp v. Zerto Inc

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Key Events
Complaint

I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 1:12-cv-00956, D. Del., 07/20/2012
  • Venue Allegations: Venue is asserted in the District of Delaware on the basis that Defendant Zerto, Inc. is a Delaware corporation.
  • Core Dispute: Plaintiffs allege that Defendant’s data replication software infringes three patents related to continuous data protection, point-in-time data recovery, and consistent recovery across distributed systems.
  • Technical Context: The technology at issue involves enterprise-level continuous data protection (CDP), which allows for the replication of data as changes occur, enabling recovery to any specific point in time to mitigate data loss from corruption or disaster.
  • Key Procedural History: The complaint details a significant shared history between the parties. Defendant's founders, Ziv and Oded Kedem, previously founded a company named Kashya, which was acquired by Plaintiff EMC in 2006. The Kedems became EMC employees, worked on the EMC data protection products at issue, and are named as inventors on all three patents-in-suit. They subsequently left EMC to found Defendant Zerto. This history forms the basis for the allegations of willful infringement.

Case Timeline

Date Event
2005-12-22 ’361 Patent Priority Date
2006-02-17 ’867 Patent Priority Date
2006-05-09 EMC acquires Kashya
2006-09-28 ’287 Patent Priority Date
2007-01-04 Ziv Kedem terminates employment with EMC
2009-04-07 ’287 Patent Issued
2009-08-18 ’867 Patent Issued
2009-10-08 Oded Kedem terminates employment with EMC
2009-10-01 Zerto founded (on or about this month)
2010-12-07 ’361 Patent Issued
2011-08-15 Zerto’s Virtual Replication becomes commercially available
2012-07-20 Complaint Filing Date

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

U.S. Patent No. 7,849,361 - "Methods and Apparatus for Multiple Point in Time Data Access," issued December 7, 2010 (’361 Patent)

The Invention Explained

  • Problem Addressed: Traditional data recovery methods require a full, time-consuming "rollback" of a storage system to a previous state, causing significant system downtime. Accessing data from a specific past point in time without this interruption is a major challenge ('361 Patent, col. 1:13-52).
  • The Patented Solution: The invention enables a user to access and process data from a specific historical point in time almost instantly by creating a "virtual interface" to the storage. This interface is built from a journal of past write transactions. While the user works with this virtual view of the historical data, the system performs the full, time-consuming physical rollback in the background. Once the physical rollback is complete, the system seamlessly switches the user from the virtual interface to the direct physical storage, minimizing operational downtime ('361 Patent, Abstract; col. 2:47-67; Fig. 5).
  • Technical Importance: This method of providing immediate access to historical data while a physical rollback proceeds in parallel is critical for enterprise applications where minimizing downtime is a primary business requirement ('361 Patent, col. 1:40-47).

Key Claims at a Glance

  • The complaint asserts infringement of "the claims of the '361 patent" without specifying claims (Compl. ¶64). The following is a breakdown of representative independent claim 1:
    • "for a host device... corresponding to a first logical storage unit... assigning a second logical storage unit"
    • "providing the data protection computer access to a data structure that is able to recover data that was stored in the storage system at an earlier point in time"
    • "in response to a request from the host computer for data that was stored in the storage system at the earlier point in time, switching the host device to get its data from the second logical storage unit instead of from the first logical storage unit."

U.S. Patent No. 7,516,287 - "Methods and Apparatus for Optimal Journaling for Continuous Data Replication," issued April 7, 2009 (’287 Patent)

The Invention Explained

  • Problem Addressed: In continuous data replication, a high rate of data transactions (I/O) at a production site can overwhelm a backup site's ability to log those changes, creating a backlog that can force the production system to slow down ('287 Patent, col. 1:45-60).
  • The Patented Solution: The patent describes a system that dynamically adapts its journaling method based on the real-time I/O rate. It can switch between different journaling "policies" or "stages." Under normal I/O load, it may use a comprehensive 5-stage process that records full "undo" information for robust recovery. When faced with a high I/O burst, it can switch to an accelerated 3-stage process that prioritizes speed over capturing undo data, preventing a system choke. Once the I/O rate decreases, it reverts to the more comprehensive policy ('287 Patent, Abstract; col. 2:1-9; Fig. 11).
  • Technical Importance: This adaptive journaling allows data protection systems to handle volatile, high-transaction workloads without sacrificing the performance of the primary application, a key challenge in enterprise environments ('287 Patent, col. 1:56-60).

Key Claims at a Glance

  • The complaint asserts infringement of "the claims of the '287 patent" without specifying claims (Compl. ¶72). The following is a breakdown of representative independent claim 1:
    • "receiving a write transaction from a production site, the write transaction including first raw data (RWNEW), a first size indicator (SZ1) for the size of the raw data, and a first start address (ADD1) for writing the first raw data;"
    • "copying the first raw data (RWNEW) into a first journal data stream starting at a first current journal address (JADD1); and"
    • "copying the first size indicator (SZ1), the first start address (ADD1), and the first current journal address (JADD1) into a first journal meta-data stream."

Multi-Patent Capsule: U.S. Patent No. 7,577,867 - "Cross Tagging to Data for Consistent Recovery," issued August 18, 2009 (’867 Patent)

  • Technology Synopsis: The patent addresses the challenge of creating a crash-consistent recovery point across multiple, geographically distributed data systems, known as "consistency groups." The invention describes a central "DPA manager" that issues coordinated "quiesce" (pause) and "tag" commands to the data protection appliances of each group, ensuring that all systems are marked at the same logical point in time. This allows for a coherent, enterprise-wide rollback to a state that is consistent across all related applications and databases ('867 Patent, Abstract; col. 2:14-28).
  • Asserted Claims: The complaint asserts infringement of "the claims of the '867 patent" without specifying claims (Compl. ¶81).
  • Accused Features: Zerto's Virtual Replication software is alleged to incorporate this technology to enable consistent data protection and recovery across heterogeneous storage systems and multiple sites (Compl. ¶¶ 55, 79).

III. The Accused Instrumentality

  • Product Identification: Defendant Zerto's "Virtual Replication" software offerings (Compl. ¶52).
  • Functionality and Market Context:
    • The complaint alleges that Zerto's Virtual Replication software provides "journal-based continuous data protection and instant point-in-time recovery to any one of multiple recovery points" (Compl. ¶55). It is also described as being "agnostic to the underlying storage platform" and enabling "remote replication across heterogeneous storage systems" (Compl. ¶55). No probative visual evidence provided in complaint.
    • The complaint positions Zerto as a direct competitor to EMC (Compl. ¶53) and alleges that Zerto incorporated EMC's "fundamental and patent-protected technologies" into its products (Compl. ¶54).

IV. Analysis of Infringement Allegations

The complaint provides a high-level functional description of the accused product but does not map specific features to claim limitations in detail. The following analysis is based on the available allegations.

’361 Patent Infringement Allegations

Claim Element (from Independent Claim 1) Alleged Infringing Functionality Complaint Citation Patent Citation
for a host device... corresponding to a first logical storage unit... assigning a second logical storage unit... The complaint alleges Zerto's software provides "instant point-in-time recovery to any one of multiple recovery points," which suggests a mechanism for presenting a historical data state, analogous to the claimed second logical unit. ¶55 col. 2:47-54
providing the data protection computer access to a data structure that is able to recover data that was stored in the storage system at an earlier point in time The accused software is described as providing "journal-based continuous data protection," where the journal serves as the data structure for recovery. ¶55 col. 2:55-62
...switching the host device to get its data from the second logical storage unit instead of from the first logical storage unit. The complaint does not provide sufficient detail for analysis of this specific switching mechanism. N/A col. 2:62-67

’287 Patent Infringement Allegations

Claim Element (from Independent Claim 1) Alleged Infringing Functionality Complaint Citation Patent Citation
receiving a write transaction from a production site... The accused software provides "continuous data protection," which necessarily involves receiving and processing write transactions from a production environment. ¶55 col. 2:18-24
copying the first raw data (RWNEW) into a first journal data stream... The software is explicitly alleged to be "journal-based," indicating it copies data into a journal. ¶55 col. 2:24-26
copying the first size indicator (SZ1), the first start address (ADD1), and the first current journal address (JADD1) into a first journal meta-data stream. The complaint does not provide sufficient detail for analysis of the specific content or structure of the journal used by the accused product. N/A col. 2:26-29
  • Identified Points of Contention:
    • Technical Questions: A central question for the court will be an evidentiary one: what is the actual software architecture and method of operation of Zerto's Virtual Replication? The complaint's allegations are at a high functional level. The infringement analysis will depend entirely on whether discovery reveals that the accused product performs the specific steps recited in the claims, such as the host-level "switching" in the ’361 Patent or the creation of a "first journal meta-data stream" with specific content as required by the ’287 Patent.
    • Scope Questions: The case may raise questions about the scope of claim terms. For example, regarding the ’361 Patent, a dispute may arise over whether Zerto's method of presenting a historical data point, which may occur at the hypervisor level, meets the limitation of "assigning a second logical storage unit" and "switching the host device", which the patent figures appear to depict at a lower level of the storage stack ('361 Patent, Fig. 3).

V. Key Claim Terms for Construction

’361 Patent: "switching the host device to get its data from the second logical storage unit instead of from the first logical storage unit"

  • Context and Importance: This phrase captures the core of the invention's mechanism for providing non-disruptive access to historical data. Infringement will turn on whether Zerto's product performs this specific "switching" at the "host device" level, or if it achieves a similar outcome through a technically distinct method (e.g., within a virtual machine hypervisor).
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The Summary of the Invention describes the concept more broadly as switching from a "virtual storage interface... over to a direct interface to the rolled back storage" without being strictly tied to the "host device" layer ('361 Patent, col. 2:25-30).
    • Evidence for a Narrower Interpretation: Figure 3 and the accompanying text depict a specific architecture with a DATA PROTECTION DRIVER (330) in the TARGET SIDE HOST (130) and a SWITCH (190), which may be argued to limit the claimed "switching" to this particular implementation at the host driver level ('361 Patent, Fig. 3; col. 5:18-35).

’287 Patent: "first journal meta-data stream"

  • Context and Importance: The validity of the infringement allegation depends on whether Zerto's journaling technology uses a data structure that meets the definition of a "journal meta-data stream" containing the specific elements recited in the claim (size, start address, and journal address). Practitioners may focus on this term because the specific content and format of the metadata is a key technical detail distinguishing one journaling method from another.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The term "stream" could be construed broadly to mean any logical sequence of metadata, regardless of its specific format or how it is stored.
    • Evidence for a Narrower Interpretation: Figure 2 of the patent explicitly illustrates a "DO' METADATA" stream containing distinct fields for ID, SIZE, DATE & TIME, ADDRESS IN JOURNAL LU, and ADDRESS IN STORAGE LU ('287 Patent, Fig. 2). A defendant could argue this specific, structured embodiment narrows the claim term to require a stream with this level of detail, not just the three elements listed in Claim 1.

VI. Other Allegations

  • Indirect Infringement: The complaint alleges that Zerto actively induces infringement by providing its Virtual Replication software to customers and that it contributes to infringement by supplying software for which there are "no substantial non-infringing uses" (Compl. ¶¶ 61, 70, 79).
  • Willful Infringement: Willfulness is a central theme of the complaint. It is alleged that Zerto had actual, pre-suit knowledge of all three patents because its founders, Ziv Kedem and Oded Kedem, are named inventors on those very patents, which were developed while they were employed by Plaintiff EMC following an acquisition (Compl. ¶¶ 62-63, 71-72, 80-81).

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

  • A central issue will be one of evidentiary proof: The complaint makes high-level claims of functional similarity. The case will likely turn on technical facts uncovered in discovery regarding the precise architecture and methods of Zerto's Virtual Replication software. Does it implement the specific, multi-step processes of the asserted claims, or does it achieve a similar enterprise-level result through a technically distinct, non-infringing pathway?
  • A key legal battle will be over willful infringement: Given the highly unusual fact that the defendant’s founders are the named inventors on the plaintiff's patents-in-suit, the question of pre-suit knowledge is not a matter of typical inference. The court will be asked to determine whether this direct knowledge translates to a deliberate and willful decision to infringe, which could expose the defendant to the risk of enhanced damages.